Zeeny Jhelumi v. Inderpreet Singh Jhelumi

69. Speaking for the Court, Jeevan Reddy, J. stated: (Hind Rubber Industries case [(1997) 3 SCC 443], SCC p. 454, para 16)

14. Reliance is also placed on the decision in the case of Anita International v. Tungabadra Sugar Works Mazdoor Sangh, (2016) 9 SCC 44 more particularly on para 54 wherein the Supreme Court held that until the question of jurisdiction is decided by an appropriate Forum all the decisions given by a Court having no jurisdiction are binding upon the parties. The relevant para 54 is reproduced hereunder: “54. We are also of the considered view, as held by the Court in Krishnadevi Malchand Kamathia case [Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 SCC 363], that it is not open either to parties to a lis or to any third parties to determine at their own that an order passed by a court is valid or void. A party to the lis or a third party who considers an order passed by a court as void or non est, must approach a court of competent jurisdiction to have the said order set aside on such grounds as may be available in law. However, till an order passed by a competent court is set aside as was also held by this Court in Official Liquidator [Official Liquidator v. Allahabad Bank, (2013) 4 SCC 381: (2013) 2 SCC (Civ) 619] and Jehal Tanti [Jehal Tanti v. Nageshwar Singh, (2013) 14 SCC 689: (2014) 3 SCC (Civ) 512] cases, the same would have the force of law, and any act/action carried out in violation thereof would be liable to be set aside. We endorse the opinion expressed by this Court in Jehal Tanti case [Jehal Tanti v. Nageshwar Singh, (2013) 14 SCC 689: (2014) 3 SCC (Civ) 512]. In the above case, an earlier order of a court was found to be without jurisdiction after six years. In other words, an order passed by a court having no jurisdiction had subsisted for six years. This Court held that the said order could not have been violated while it subsisted. And further that the violation of the order before it is set aside is liable to entail punishment for its disobedience. For us to conclude otherwise may have disastrous consequences. In the above situation, every cantankerous and quarrelsome litigant would be entitled to canvass that in his wisdom the judicial order detrimental to his interests was void, voidable, or patently erroneous. And based on such plea, to avoid or disregard or even disobey the same. This course can never be permitted.”

15. In support of the submission that the respondent has wilfully and deliberately disobeyed and not complied with the order dated 31.05.2018, Mr. Patwalia relies on a decision of the Apex Court in the case Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 wherein the Apex Court in para 17 held that the contemnor should not be allowed to retain the fruits of his contempt. The relevant para 17 is reproduced as under: “The contemner should not be allowed to enjoy or retain the fruits of his contempt

17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji [(1984) 4 SCC 216: 1984 SCC (Cri) 587: (1985) 1 SCR 598] this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition, thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that “the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking).”

16. Reliance is also placed on the decision if the case of Noorali Babul Thanewala v. K.M.M. Shetty, (1990) 1 SCC 259 wherein the Apex Court observed in para 11 as under: “11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing respondent 1contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same.”

17. Per contra, Ms. Geeta Luthra, learned senior counsel appearing for the respondent, while relying on the reply filed, has denied each and every allegation made in the Contempt Petition. She submits that the Contempt Petition has been filed alleging wilful disobedience of the order dated 31.05.2018 passed in FAO 260/2018, which is arising out of orders dated 20.03.2018 and 07.05.2018 passed by the Family Judge. In terms of Section 19(6) of the Family Courts Act, 1984 an appeal shall lie before the Division Bench; however, the FAO was deliberately filed as first appeal under Order XLI of Code of Civil Procedure, 1908 (CPC) before the learned Single Judge. Thus, the order dated 31.05.2018 sought to be relied upon and of which contempt is alleged, has been passed by the Court without jurisdiction and thus, the order is non est.

18. Ms. Luthra has relied upon the judgments passed by the Supreme Court in the cases of Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307, Kiran Singh v. Chaman Paswan AIR 1954 SC 340, Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 in support of her contention that an order passed by a court without jurisdiction is non est and void ab initio.

19. It is also submitted that Contempt Petition is not maintainable as the order dated 31.05.2018 is an order relating to payment of money and therefore, only an execution petition may lie in terms of Order 21 of CPC. The petitioner has abused the process of law time and again. The present petition has been filed without following the due process, with malafide intention and to harass the respondent.

20. Learned counsel for the respondent has relied upon R.N. Dey v. Bhagyabati Pramanik, 2000 (4) SCO 400 wherein the Supreme Court has cautioned the courts against misuse of contempt jurisdiction to execute the decree and held as under: "7. We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law.... Further, the decree-holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the court for non-satisfaction of the money decree."

21. Another submission made by the learned senior counsel for the respondent is that the order dated 31.05.2018 was ad interim in nature. Learned Single Judge in his wisdom had directed both the parties to file List of Assets and Statement of Income and Expenditure. The reason for giving such a direction was that the court wanted to check the financial resources of both the parties before passing the final order on maintenance. The said direction was passed with an intent to await the reply of the respondent to adjudicate the petition on merits, if maintainable. The Court was not guided by the Conciliation Agreement dated 02.06.2018, which is why the learned Single Judge directed the parties to file their income and expenditure affidavit.

22. Learned senior counsel submits that the respondent filed his income affidavit before the learned Single Judge but the petitioner has not filed the same, therefore, the order could not be finally adjudicated. It is further submitted that the petitioner is abusing the process of law as she comes from a legal background and has family of lawyers. Therefore, since the said order could not attain finality due to the default of the petitioner, the respondent cannot be saddled with the liability of alleged non-compliance.

23. Learned senior counsel further submits that the petitioner has been making false representation with respect to the properties owned by the respondent, and in fact, the properties based upon which the present proceeding has been initiated, are not owned by the respondent, and they have been endowed upon the respondent by virtue of his mother’s will and relinquishment deeds executed by the father and sisters of the respondent. It is further submitted that these properties form part of the respondent’s inherited property from his mother. The entire family of the respondent relinquished their rights in the said properties only to prevent the respondent’s family from disintegrating. The will and relinquishment deeds have not been accepted by the other family members and the relinquishment deeds themselves are untenable. The expense care and share of the respondent’s father and the entire family is the responsibility of the respondent.

24. Learned senior counsel further submits civil contempt is made out when there is deliberate and wilful violation of a judgment, decree or order. The respondent does not have the financial resources to comply with order dated 31.05.2018, which is duly reflected from the income and asset affidavit filed by the respondent. Also, there is neither any averment nor any finding that the respondent has financial resources to honour the said order. Thus, impossibility to comply with order dated 31.05.2018 is not deliberate and therefore, does not invite contempt before this Court. Learned senior counsel relies upon a decision in the case of Dinesh Kumar Gupta v. United India Insurance Company Limited, (2010) 12 SCC 770, wherein the Supreme Court held that absence of disobedience on the part of the contemnor will not hold him guilty unless the contempt involves the task of fault or misconduct. The Supreme Court held that: “17. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the wellsettled legal position reflected in a catena of decisions of this Court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act, 1971 clearly postulates and emphasises that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature.

23. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out under Section 2(b) of the Contempt of Courts Act, 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding.

24. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in Ahmed Ali v. Supdt., District Jail [1987 Cri LJ 1845 (Gau)] as also in B.K. Kar v. High Court of Orissa [AIR 1961 SC 1367: (1961) 2 Cri LJ 438] that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify for holding one guilty of contempt…...”

25. Learned senior counsel further submits that the FAO 260/2018 was transferred to this court as MAT. F.C. 195/2018. The learned Single Judge transferred the said appeal as per the provision of Order VII Rule 10 of CPC. After being transferred to the Division Bench, all previous orders passed by the learned Single Judge are without jurisdiction and therefore, are non est and a nullity. The same legal position was present in the mind of the learned Single Judge when the respondent moved CM No. 27315/2018. The learned Single Judge dismissed the said application on the premise that the respondent has challenged the jurisdiction of the learned Single Judge to entertain the said appeal.

23. Learned senior counsel further contends that if there is any alleged violation of order dated 31.05.2018, it has to be decided before the learned Single Judge, and there is no provision under the Contempt of Courts Act, 1971 which provides that if order passed by the learned Single Judge is not complied with, the contempt lies with the Division Bench of the High Court. Moreover, if the Contempt Petition was to be heard by the Division Bench, the right of appeal under Section 19 of the Contempt of Courts Act, 1971, would be assailed.

24. Learned senior counsel for the respondent further submits that the respondent’s family has a history of genetic depression which has been passed on in the lineage and genetically runs in the family, and the respondent has inherited the same. Due to the added tensions and pressures created by the petitioner, the respondent slipped into depression. The respondent had to undergo therapy, treatment and counselling. Taking anti-depressants, mood stabilizers over extensive periods of time resulted in the respondent developing dependency on such medication.

25. It is further submitted by the learned senior counsel for the respondent that the petitioner very well knew respondent’s weakness but never helped him to cope with such depression or dependency. The environment created by petitioner was very hostile and worsened the state of respondent. Respondent had no support since he was alienated from his family due to acts of petitioner and found it tough to cope with everyday life. Under such hostile circumstances his medicine dependency increased and resulted in respondent taking stronger medication. Respondent’s depression created a vicious cycle and he fell into a loop where coming out seemed very tough. In tragic times, petitioner abandoned respondent and went to her parent’s house in Chandigarh, along with the children. Respondent’s children are his lifeline and removal of the children had a debilitating effect on respondent. Respondent felt emotionally drained like his life had been crippled and he had no thinking power left. Petitioner was aware of respondent’s condition and astonishingly once even said ‘I will make you crawl on your knees, but you will still not meet the children till I get control of the finances’. It is under such undue influence and unstable medical condition that respondent agreed to sign on dotted lines.

26. Learned senior counsel further submits that the petitioner and her lawyer Ms. Natasha Dalmia, thereafter approached the Mediation Centre. Petitioner had the advantage of advice and aid of lawyers being from a family of lawyers; whilst respondent was alone without any lawyer or even family to advise him. It is the good nature of respondent and extreme love for the petitioner and the children that petitioner exploited and took advantage of the respondent’s condition. On the dictates of petitioner, the family settlement dated 30.05.2017 was created. Subsequently, MOU dated 02.06.2017 was executed at Delhi High Court Mediation Centre. It is also submitted that both the aforesaid documents do not have any legal effect and cannot be enforced in the eyes of law. No rights can be created in favour of petitioner. The said documents were created under undue influence, pressure and coercion and are therefore not enforceable.

27. We have heard learned counsels for the parties and considered their rival submissions.

28. To appreciate the rival contentions of the parties, the following questions which arise for our consideration are:

(i) Whether the violation of the order dated 31.05.18 would amount to contempt.

(ii) Whether the order dated 31.05.18 passed by the learned Single

Judge be termed as non est since the order was passed by a learned Single Judge and as per Section 19(6) of the Family Courts Act, 1984 the appeal was to be filed before the Division Bench.

(iii) Whether the respondent has wilfully violated the order dated

31.05.2018.

29. To appreciate the rival submissions of the parties, we deem it appropriate to reproduce the entire order dated 31.05.2018 passed by the learned Single Judge. “$~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO 260/2018 ZEENY JHELUMI..... Appellant Through: Mr. P.S. Patwalia, Sr. Adv. with Mr. Vanshdeep Dalmia and Ms. Natasha Dalmia, Advs.

VERSUS

INDERPREET SINGH JHELUMI..... Respondent Through: Mr. Salman Khurshid, Sr. Adv. with Ms. Azra Rehman, Ms. Shubhi Sharma, Mr. Chetan Anand, Mr. Sanseev Sahay, Mr. Pranav Malhotra and Mr. Akash Srivastava, Advs. CORAM: HON'BLE MR.

JUSTICE NAJMI WAZIRI O R D E R % 31.05.2018

1. The learned Senior Advocate for the appellant submits that the appellant’s most urgent concerns for the moment are: (i) payment of the monthly maintenance amount along with arrears to the appellant right away in terms of the Settlement Agreement are paid and the same is continued to be paid to her till further modification of this arrangement is made by this Court, (ii) that the properties listed in para 6(a) to (g) of the Settlement Agreement have been bequeathed by the parents or otherwise, like the property in London, have been purchased from the money and estates of the parents, therefore, the minor children of the parties have a right of inheritance in them, hence these properties have to be protected from being frittered away or otherwise encumbered, thereby affecting the children’s right therein; and (iii) provision for immediate safe residential accommodation to the appellant mother and the two school going children, preferably on the same residential campus in which they have been residing all along, so that the children’s physical environment is not drastically disturbed and they do not feel disoriented or get psychologically affected at an entirely new address.

2. Mr. Khurshid, the learned Senior Advocate for the respondent states, at the outset, that as a concerned father, the respondent would like to make due provisions for the children not only for their physical needs but also for their emotional and psychological well being; that he would like to meet them and possibly interact with them regularly. The learned Senior Advocate submits that the father’s interaction with the children merely once a week may not necessarily be in the interest of development of their emotional quotient; therefore, the father would like that the children are accommodated on the same campus where the father is living so that the children can, at least, be seen by the father on a regular basis and if possible, there would be far more frequent interaction between them than what is envisaged in the Settlement Agreement. He submits that the children too should have unhindered access to their father. Apropos the amounts mentioned in para 1 of the Settlement Agreement, he says that Rs.2,70,000/- to be paid to the appellant towards “Staff Salary” and “Household Expenditure”, was for maintenance of the house-hold when the appellant was living together with the respondent as one family unit. However, since she does not reside under the same roof, these amounts would have to be proportionately reduced by a quarter because the family consists of four persons i.e. the parents and the two children. In effect, she would receive Rs.2,02,500/- under the said account heads. The other payments would remain undisturbed. Thus, the entitled revised amount payable would be Rs.5,57,500/- per month. In terms of the Settlement Agreement, the appellant receives Rs.35,000/- per month as rent of first floor, N-94, Panchsheel Park, New Delhi and Rs.1,35,000/- per month as use and occupation charges of property bearing no. 12A, South Drive DLF Chattarpur Farms, New Delhi 110074. So long as these amounts are being received by her, there will be a corresponding deduction from the monthly maintenance amount to be paid to her by the respondent. The amount of Rs. 3,87,500/shall be paid to the appellant’s bank account being account NO. 00031000112719, HDFC Bank, K.G. Marg, New Delhi on or before the 15th day of each month. Whenever, lesser rental amount is received by the appellant, the respondent shall make good such shortfall to ensure that she receives Rs. 5,57,500/- by the 15th day of the month. In the event of default in such payment, the appellant shall be entitled for directions to get such amount released directly from the respondent’s bank account.

3. Any infraction in payment of this amount either in quantum or by the date, shall automatically be visited with costs of Rs.25,000/- which too shall be paid into the appellant’s bank account, within two weeks of such infraction.

4. The respondent shall make arrangement for residence of the appellant and her two children, on the same campus where he is residing, preferably in property no. 12A, South Drive, DLF Chattarpur Farms, New Delhi by terminating the current month to month tenancy/ lease and licence arrangement of its current occupant. Let this arrangement be made within four weeks from today. An affidavit of compliance be filed before the next date.

5. The maintenance amount for the month of May, 2018 became due on 15.05.2018. It shall be paid into the aforesaid bank account of the appellant by 2nd June, 2018. The arrears shall be paid by 30.06.2018. The amount of maintenance for the month of June, 2018 shall be paid to the appellant by 15.06.2018.

6. The respondent shall neither withdraw from his bank or other accounts or appropriate more than Rs.8.00 lakhs per month till further orders. He shall also not encumber or otherwise create any third-party rights in the properties mentioned in clause 6 of the Settlement Agreement.

7. A copy of this order be sent to the respondents’ two known banks i.e. ICICI Bank, Chattarpur, New Delhi and HDFC Bank, K.G. Marg, New Delhi, for them to ensure that not more than Rs.4.00 lakh each per month is withdrawn by the respondent from either of them.

8. Apropos the amounts received by the appellant and the respondent from the lease of their London property, of which they are joint and equal owners, appropriate orders will be passed on a subsequent date.

9. Mr. Khurshid further states that since the respondent’s father has gifted valuable properties to the respondent, the latter out of filial affection and duty has been supporting his father with Rs.2.[6] lakhs every month, and this arrangement may be permitted to be continued. Let details of such regular support be filed by the respondent by way of an affidavit by the next date. For the moment, the Court is of the view that the amount of Rs.8.00 lakhs per month is more than sufficient for the respondent to take care of the continued support to the father as well.

10. The parties shall file their list of assets and statement of income and expenditure in terms of the order passed by this Court on 23.05.2018.

11. Renotify on 24.07.2018.

12. A copy of this order be given dasti to the parties, under the signature of the Court Master.

NAJMI WAZIRI, J MAY 31, 2018/acm”

30. A careful reading and analysis of this order would show that the respondent was represented by a team of lawyers including learned senior counsel Mr. Salman Khurshid.

31. In the first part of order, learned senior counsel for the appellant had outlined the most serious concerns of the appellant, which included monthly maintenance amount along with arrears as per the settlement agreement, right of the children in respect of properties, protection of the properties from being frittered away or otherwise encumbered, thereby affecting the children’s right therein and provision for immediate safe residential accommodation to the appellant mother and the two school going children.

32. A careful reading of paragraph two of the above-mentioned order would show that Mr. Khurshid, at the very outset, submitted that as a concerned father, the respondent would like to make due provisions for the children, not only for their physical needs but also for their emotional and psychological well being. Mr. Khurshid also raised the issue that the respondent’s interaction with the children is merely once a week and which may not necessarily be in the interest of development of their emotional quotient. Hence, the respondent would like that the children are accommodated on the same campus where the respondent has been living, so that the children can, at least, be seen by the respondent on a regular basis. If the said arrangement is made, there would be far more frequent interaction between them than what is envisaged in the settlement agreement. In this backdrop, a statement was made that the amount of Rs.2,70,000/- mentioned in paragraph one of the settlement agreement would be paid to the appellant towards ‘Staff Salary’ and ‘Household Expenditure’ and for maintenance of household as the appellant was living together with the respondent as one family unit. However, since the wife was not residing under the same roof, this amount would have to be proportionately reduced by a quarter because the family consists of four persons i.e. parents and two children. Learned senior counsel further then stated that “she would receive Rs.2,02,500/- under the said account heads. The other payments would remain undisturbed.”

33. Learned counsel further goes on to state that “Thus, the entitled revised amount payable would be Rs.5,57,500/- per month. In terms of the Settlement Agreement, the appellant receives Rs.35,000/- per month as rent of first floor, N-94, Panchsheel Park, New Delhi and Rs.1,35,000/- per month as use and occupation charges of property bearing no. 12A, South Drive DLF Chattarpur Farms, New Delhi

110074. So long as these amounts are being received by her, there will be a corresponding deduction from the monthly maintenance amount to be paid to her by the respondent. The amount of Rs. 3,87,500/- shall be paid to the appellant’s bank account being account No. 00031000112719, HDFC Bank, K.G. Marg, New Delhi on or before the 15th day of each month. Whenever, lesser rental amount is received by the appellant, the respondent shall make good such shortfall to ensure that she receives Rs. 5,57,500/- by the 15th day of the month. In the event of default in such payment, the appellant shall be entitled for directions to get such amount released directly from the respondent’s bank account. Any infraction in payment of this amount either in quantum or by the date, shall automatically be visited with costs of Rs.25,000/- which too shall be paid into the appellant’s bank account, within two weeks of such infraction. The respondent shall make arrangement for residence of the appellant and her two children, on the same campus where he is residing, preferably in property no. 12A, South Drive, DLF Chattarpur Farms, New Delhi by terminating the current month to month tenancy/ lease and licence arrangement of its current occupant.”

34. The Court thereafter directed that this arrangement be made within a period of four weeks and also directed that an affidavit of compliance be filed before the next date. In paras 5, 6, 7 & 8, the following directions were issued: “5. The maintenance amount for the month of May, 2018 became due on 15.05.2018. It shall be paid into the aforesaid bank account of the appellant by 2nd June, 2018. The arrears shall be paid by 30.06.2018. The amount of maintenance for the month of June, 2018 shall be paid to the appellant by 15.06.2018.

6. The respondent shall neither withdraw from his bank or other accounts nor appropriate more than Rs.8.00 lakhs per month till further orders. He shall also not encumber or otherwise create any third-party rights in the properties mentioned in clause 6 of the Settlement Agreement.

7. A copy of this order be sent to the respondents’ two known banks i.e. ICICI Bank, Chattarpur, New Delhi and HDFC Bank, K.G. Marg, New Delhi, for them to ensure that not more than Rs.4.00 lakh each per month is withdrawn by the respondent from either of them.

8. Apropos the amounts received by the appellant and the respondent from the lease of their London property, of which they are joint and equal owners, appropriate orders will be passed on a subsequent date.”

35. In continuation, Mr. Khurshid made the following statement in para 9, which we reproduce below: “9. Mr. Khurshid further states that since the respondent’s father has gifted valuable properties to the respondent, the latter out of filial affection and duty has been supporting his father with Rs.2.[6] lakhs every month, and this arrangement may be permitted to be continued. Let details of such regular support be filed by the respondent by way of an affidavit by the next date. For the moment, the Court is of the view that the amount of Rs.8.00 lakhs per month is more than sufficient for the respondent to take care of the continued support to the father as well.”

36. A composite reading of the abovementioned order would show that the order can be seen in three parts. The first part of the order simply deals with the concern of the learned senior counsel for the appellant/wife. The second and third part of the order forms part of para 4, which contains the statements made by Mr. Khurshid on behalf of the respondent. The statements were duly accepted by the Court as is evident from the observations of the Court that: “Let this arrangement be made within four weeks from today. An affidavit of compliance be filed before the next date.” Further directions were issued in paras 5, 6 & 7 with respect to maintenance amount for the months of May, 2018 and June, 2018. A direction was issued that the respondent would not withdraw money from his bank or other accounts, nor appropriate more than Rs.[8] lakhs per month till further orders, and he would further not encumber or otherwise create any third-party rights in the properties mentioned in Clause 6 of the settlement agreement, to ensure compliance as per the order. To ensure compliance of the statements and the said order, it was directed that this order be sent to the respondent’s two known banks i.e. ICICI Bank, Chattarpur, New Delhi and HDFC Bank, K.G. Marg, New Delhi, for the banks to ensure that not more than Rs.[4] lakhs each, per month be allowed to be withdrawn by the respondent from either of the accounts.

37. In view of the above observations, we are of the considered view that the statement made by the learned senior counsel on behalf of the respondent, on instructions, would bind the respondent and the directions issued by the learned Single Judge are also binding on the respondent as the said order has attained finality. After understanding the effect and the implication of the impugned order, the respondent made an application seeking modification, which was not pressed. The present contempt petition was adjourned from time to time either for hearing or to enable the parties to resolve the matter or to enable the respondent to comply with the order. Finally, since neither there was any settlement nor any endeavour was made by the respondent to comply with the order, the judgment was reserved.

38. After analysing the judgments as relied upon by both the parties, we find force in the submissions made by the petitioner and hold that in the order dated 31.05.2018, counsel for the respondent made statements which duly admitted the existence of the settlement agreement executed on 02.06.2017. The learned Single Judge, on the undertaking given by the counsel for the respondent, took the settlement agreement into consideration and directed the respondent to pay the revised amount of maintenance of Rs. 5,57,500/- to the petitioner. Therefore, the submission of the respondent that he is incapable of complying with the settlement agreement as it was entered into under undue influence and coercion, and the Single Judge did not take into consideration the settlement agreement while issuing the directions to pay the revised amount of maintenance, cannot be accepted.

39. We place reliance on the judgement in the case of Ram Niranjan Kajaria v. Sheo Prakash Kajaria reported at (2015) 10 SCC 203 wherein the Supreme Court, in para 23, has held that judicial admissions in terms of Section 58 of the Indian Evidence Act, 1872 are binding on the parties. The relevant paras 22 and 23 read as under: “22. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam [(1974) 1 SCC 242]. To quote para 27: (SCC pp. 251-52)

23. We agree with the position in Nagindas Ramdas [(1974) 1 SCC 242] and as endorsed in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594], does not reflect the correct legal position and it is overruled.”

40. Additionally, on a perusal of order dated 31.05.2018, it is evident that the learned senior counsel for the respondent, while relying on the settlement deed dated 02.06.2017, proposed the monthly amount of maintenance to be revised to Rs. 5,57,500/- and the learned Single Judge issued directions to the respondent to pay the said revised amount within a specific time period. It is thus clear that the learned senior counsel for the respondent gave an undertaking with respect to the payment of Rs 5,57,500/- and also with respect to making arrangements for residence of the petitioner and the two minor children preferably in the property no. 12 A, South Drive, DLF Chattarpur farms, New Delhi. The said undertaking has not been complied with by the respondent which makes him liable for wilfully disobeying and non-complying with the order dated 31.05.2018. In regard to the aforementioned submission, we rely upon the judgement rendered by the Supreme Court of India in the case of Rama Narang v. Ramesh Narang reported at (2009) 16 SCC 126. Relevant paras 43 to 47 are reproduced as under: “43. In Rita Markandey v. Surjit Singh Arora [(1996) 6 SCC 14] this Court came to the conclusion that even if the parties have not filed an undertaking before the court, but if the court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the court ultimately finds that the party never intended to act on such representation or such representation was false, even then the party would be guilty of committing contempt of court. The Court observed as under:

44. In K.C.G. Verghese v. K.T. Rajendran [(2003) 2 SCC 492] this Court dealt with the “undertaking” in contempt proceedings arising out of eviction proceedings. This Court held that when at the time of giving the undertaking, the tenant did not indicate that he was in possession of a part of the premises and not the other portion nor was such a stand taken in any of the pleadings before the High Court or Rent Controller, the order of eviction passed against the tenant is equally binding upon the occupant.

45. This Court again had occasion to deal with a case in Bank of Baroda v. Sadruddin Hasan Daya [(2004) 1 SCC 360]. In that case, the Court clearly observed as under: (SCC p. 361g) “The wilful breach of an undertaking given to a court amounts to ‘civil contempt’ within the meaning of Section 2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court.”

46. The respondents placed reliance on Babu Ram Gupta v. Sudhir Bhasin [(1980) 3 SCC 47: 1980 SCC (Cri) 527]. In this case admittedly no application, affidavit or any undertaking were given by the appellant. Therefore, this case is of no assistance to the respondents. In this case, the Court observed that: “Even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking.” The Court even in this case observed that: “In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution.” (emphasis in original)

47. The critical analysis of the decided cases of this Court clearly leads to the conclusion that wilful breach of an undertaking given to the court amounts to contempt of court under Section 2(b) of the Act.”

41. We also find force in the submission of the petitioner that the judgments in the cases of Noorali Babul Thanewala (supra) and Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (supra), squarely apply to the present case.

42. With respect to the contention of the counsel for the respondent that since the order dated 31.05.2018 was passed by the learned Single Judge without having jurisdiction, the same is non est and nullity, the learned counsel for the petitioner rightly countered the same contention by relying upon the decision in the case of Anita International v. Tungabadra Sugar Works Mazdoor Sangh, reported at (2016) 9 SCC 44. It was observed by the Supreme Court that the order passed by a Court without jurisdiction has to be complied with until the matter of jurisdiction is decided by a proper Forum. We find that the judgement squarely applies to the facts of this case as the issue of jurisdiction is yet to be decided by a proper Forum and therefore, order dated 31.05.2018 is binding on both the parties. The judgements relied upon by the learned senior counsel for the respondent that the order passed by a Court without jurisdiction is a nullity, would not apply to the present case.

43. Additionally, on examination of affidavit of compliance dated 04.05.2019 filed by the respondent, on a direction issued by this Court vide order dated 02.04.2019 in the Contempt Case, it is clear that the respondent has not complied with the direction to pay the amount of Rs. 2,50,000/- in terms of paragraph two of the settlement agreement. As per the judgement rendered by the Supreme Court in the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. reported at (2010) 8 SCC 24 the Court, in para 28, held that the settlement agreement through mediation is equivalent to the award of the Lok Adalat, making it binding on the parties. Therefore, the settlement agreement dated 02.06.2017 is binding on both the parties. Paragraph 38 of the afore-stated judgment is reproduced as under: “38. The other four ADR processes are non-adjudicatory and the case does not go out of the stream of the court when a reference is made to such a non-adjudicatory ADR forum. The court retains its control and jurisdiction over the case, even when the matter is before the ADR forum. When a matter is settled through conciliation, the settlement agreement is enforceable as if it is a decree of the court having regard to Section 74 read with Section 30 of the AC Act. Similarly, when a settlement takes place before the Lok Adalat, the Lok Adalat award is also deemed to be a decree of the civil court and executable as such under Section 21 of the Legal Services Authorities Act, 1987. Though the settlement agreement in a conciliation or a settlement award of a Lok Adalat may not require the seal of approval of the court for its enforcement when they are made in a direct reference by parties without the intervention of court, the position will be different if they are made on a reference by a court in a pending suit/proceedings. As the court continues to retain control and jurisdiction over the cases which it refers to conciliations, or Lok Adalats, the settlement agreement in conciliation or the Lok Adalat award will have to be placed before the court for recording it and disposal in its terms.”

44. In view of the above discussion we hold that the order dated 31.05.2018 is neither void nor a nullity. The same has attained finality in view of the respondent having withdrawn the application for modification of the said order. The settlement agreement dated 02.06.2017 as well as the order dated 31.05.2018 is binding upon the parties.

45. In the light of the above observations, the respondent is held guilty for civil contempt as he has wilfully disobeyed the order dated 31.05.2018. Thus, the present petition is allowed. CMs.APPL 4523/2019 & 16981/2019

46. In view of the order passed in the contempt petition, the applications stand disposed of. G.S.SISTANI, J JYOTI SINGH, J DECEMBER 24, 2019//