REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1798 of 2009
Kanwar Singh Saini ...Appellant
Versus
High Court of Delhi ...Respondent
J U D G M E N T
Dr. B.S. Chauhan, J.
1. `Liberty' - the most cherished fundamental right, a basic human
right, a "transcendental", inalienable, and `primordial' right, should
not be put in peril without following the procedure prescribed by law
and in a casual and cavalier manner. Instant case is an example where
all proceedings in the suit as well as under the Contempt of Courts Act,
1971, (hereinafter called as `Act 1971'), have been taken without
adverting to the procedure known in law.
2. This Criminal Appeal has been preferred under Section 19 (1)
(b) of the Act 1971 against the impugned judgment and order dated
20.7.2009 passed by the High Court of Delhi at New Delhi in
Contempt Case (Crl.) No.9 of 2004, whereby the appellant has been
convicted for committing contempt of court by violating the
undertaking given by him to the Court at the time of disposal of the suit
and awarded him simple imprisonment for four months.
3. Facts and circumstances giving rise to this appeal are:
A. The appellant executed a sale deed in favour of one Mohd.
Yusuf on 5.9.2002 in respect of the premises bearing No. 148, village
Khirki, Malviya Nagar, New Delhi for a sum of Rs.2,10,000/- and got
the said deed registered.
B. Mohd. Yusuf filed suit No. 106/2003 in the Civil Court, Delhi,
on 26.4.2003 for permanent injunction alleging that the appellant tried
to dispossess him on 24.4.2003 from the said suit premises. His
application for interim relief was rejected. The Civil Court issued
summons and notice to the appellant/defendant.
C. In response to the said summons and notice, the appellant filed
a written statement on 29.4.2003 admitting the execution of sale deed
in respect of the suit premises for a sum of Rs.2.10 lacs and handing
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over its possession to the plaintiff but denied the allegation that he had
made any attempt to dispossess the plaintiff. However, the appellant
raised the grievance that the entire consideration of sale has not been
paid to him as a sum of Rs.25,000/- still remained outstanding.
D. The Civil Court while taking his written statement on record
also recorded the statement of the appellant/defendant in person that he
had neither threatened to dispossess nor he would dispossess the
plaintiff. The plaintiff's counsel accepted the statements made by the
appellant/defendant in the court and the case was adjourned for
12.5.2003. On 12.5.2003, plaintiff asked the court to dispose of the suit
in view of the statement made by the appellant/defendant. The court
disposed of the suit directing the appellant/defendant not to breach the
undertaking given by him.
E. Appellant's son filed a suit on 11.8.2003 for partition in respect
of two plot Nos. i.e. 147A and 148 claiming that he had a share in the
said properties.
F. Mohd. Yusuf-plaintiff in the Suit No. 106/2003 filed an
application before the High Court under the provisions of Act 1971
alleging the violation of the undertaking given by the appellant to the
civil court. The application came up for hearing on 11.9.2003 but none
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appeared to press the same. The High Court disposed of the
application vide order dated 11.3.2003 giving liberty to the said
applicant to approach the civil court. The said order was passed
without issuing notice to the appellant or anyone else.
G. Mohd. Yusuf filed an application dated 15.9.2003 under Order
XXXIX Rule 2A of Code of Civil Procedure, 1908 (hereinafter called
`CPC') read with Sections 10, 11 and 12 of the Act 1971 against the
appellant, his wife and two sons alleging that when he visited the suit
premises on 4.8.2003, he found that the locks of the main door had
been broken by them. The appellant filed reply to the said application
on 22.10.2003 alleging that the execution of the sale deed dated
5.9.2002 and his written statement and the statement made before the
court on 29.4.2003 had been obtained by fraud.
H. While hearing the said application, the Court vide order dated
16.2.2004 recorded that as the appellant had taken inconsistent pleas to
his written statement filed earlier and violated the undertaking while
making his oral statement, a prima facie case of contempt was made
out and referred the matter to the High Court to be dealt with under the
provisions of Act 1971.
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I. The appellant filed a suit on 23.2.2005 for cancellation of the
sale deed dated 5.9.2002.
J. The High Court while accepting the reference as Criminal
Contempt, issued show cause notice to the appellant on 2.2.2005
directing him to appear in person on 16.2.2005. The Court vide
impugned judgment and order dated 20.7.2009 held the appellant guilty
of criminal contempt on the basis of inconsistent pleas taken by him
and also for the breach of undertaking and imposed simple
imprisonment for four months. The appellant was granted bail by this
Court on 29.9.2009.
Hence, this appeal.
4. Mr. Tanmaya Mehta, learned counsel appearing for the
appellant has raised the grievance mainly, that it was a case of civil
contempt which could have been dealt with by the Trial Court itself
and by no means could be treated as a criminal contempt case. The
High Court erred in treating the same as criminal contempt and
awarded the punishment to the appellant which was not warranted
under the facts and circumstances of the case and therefore, the
judgment and order of the High Court convicting the appellant is liable
to be set aside.
5
5. Mr. Shree Prakash Sinha, learned counsel appearing for the
plaintiff - Mohd.Yusuf, intervener, has opposed the appeal contending
that the appellant and his family members had made false and
misleading statements to scuttle the interest of justice. The appellant
has not only committed criminal contempt but also abused the process
of the court. Thus, no interference is called for.
6. The suit was filed on 26.4.2003 and notice was issued returnable
just after three days, i.e. 29.4.2003 and on that date the written
statement was filed and the appellant appeared in person and his
statement was recorded. Order X Rule 1 CPC provides for recording
the statement of the parties to the suit at the "first hearing of the suit"
which comes after the framing of the issues and then the suit is posted
for trial, i.e. for production of evidence. Such an interpretation emerges
from the conjoint reading of the provisions of Order X Rule 1; Order
XIV Rule 1(5); and Order XV Rule 1, CPC. The cumulative effect of
the above referred provisions of CPC comes to that the "first hearing of
the suit" can never be earlier than the date fixed for the preliminary
examination of the parties and the settlement of issues. On the date of
appearance of the defendant, the court does not take up the case for
hearing or apply its mind to the facts of the case, and it is only after
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filing of the written statement and framing of issues, the hearing of the
case commences. The hearing presupposes the existence of an
occasion which enables the parties to be heard by the Court in respect
of the cause. Hearing, therefore, should be first in point of time after
the issues have been framed. The date of "first hearing of a suit" under
CPC is ordinarily understood to be the date on which the Court
proposes to apply its mind to the contentions raised by the parties in
their respective pleadings and also to the documents filed by them for
the purpose of framing the issues which are to be decided in the suit.
Thus, the question of having the "first hearing of the suit" prior to
determining the points in controversy between the parties i.e. framing
of issues does not arise. The words the "first day of hearing" does not
mean the day for the return of the summons or the returnable date, but
the day on which the court applies its mind to the case which ordinarily
would be at the time when either the issues are determined or evidence
is taken. [Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982
SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.)
Dal Bazar, AIR 1987 SC 197; Siraj Ahmad Siddiqui v. Shri Prem
Nath Kapoor, AIR 1993 SC 2525; and M/s Mangat Singh Trilochan
7
Singh thr. Mangat Singh (dead) by Lrs. & Ors. v. Satpal, AIR 2003
SC 4300]
7. From the above fact situation, it is evident that the suit was filed
on 26.4.2003 and in response to the notice issued in that case, the
appellant/defendant appeared on 29.4.2003 in person and filed his
written statement. It was on the same day that his statement had been
recorded by the court. We failed to understand as to what statutory
provision enabled the civil court to record the statement of the
appellant/defendant on the date of filing the written statement. The suit
itself has been disposed of on the basis of his statement within three
weeks of the institution of the suit. The order sheets of the suit read as
under:
26.4.2003:
"Present: Ld. counsel for the plaintiff.
Arguments on injunction application heard. No ground for
granting ex-parte stay order at this stage, request in this
regard is declined. Issue summons of the suit and notice of
the interim application to the defendants on PF and RC,
courier, UPC and dasti also for 29-04-2003.
Sd/-
CJ/Delhi
26-04-2003"
8
29.4.2003:
"Counsel for the plaintiff.
Defendant in person.
He states that he is not likely to dispossess the plaintiff
from the suit premises as he has already sold the same.
However, he has stated that he has to take certain amount
from the plaintiff towards expenses which has not been
paid by the plaintiff. There is counter claim of the
defendant affixing the court fee and in any case, he has
legal remedy to exercise it. The defendant is ready to make
the statement. Let it be recorded.
CJ/Delhi
"Statement of Shri Kanwar Singh Saini, Defendant on
S.A.
Neither I have threatened the plaintiff nor I will dispossess
him as I have already sold the suit property vide sale deed.
The suit of the plaintiff may kindly be dismissed as there is
no merit in the same.
R.O. &A.C.
Sd/
(Kanwar Singh Saini)
Sd/-
CJ/DELHI
29.4.2003"
"Statement of Ld. Counsel for plaintiff Shri Iqbal Ahmed
without oath:
I have heard the statement of defendant and I have
instruction from the plaintiff to accept the same. The suit
of the plaintiff may kindly be disposed of.
R.O.&A.C.
Sd/-
(Iqbal Ahmed)
Sd/-
CJ/DELHI
29.4.2003
9
12.5.2003:
"I have heard the statement of defendant and I accept the
same. My suit be disposed of in terms of statement of
defendant.
RO&AC
Sd/-
(Mohd. Yusuf)
Sd/-
CJ/DELHI
12.5.2003"
Thereafter the learned Judge passed the following order:-
" 12.5.2003
Present: Plaintiff in person.
Ld. Counsel for the defendant.
Statement of plaintiff is recorded on a separate
sheet. Statement of defendant is already recorded.
Keeping in view of the statements of parties, the suit
of the plaintiff is disposed of. Parties are bound by
their statements as given in the court. No orders as
to costs. File be consigned to Record Room.
Sd/-
CJ/DELHI
12.5.2003"
8. Be that as it may, the so-called statement/undertaking given by
the appellant/defendant culminated into the decree of the Civil Court
dated 12.5.2003. Thus, the question does arise as to whether the
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application under Order XXXIX Rule 2A CPC or under the Act 1971
could be entertained by the Civil Court and whether the matter could be
referred to the High Court at all.
9. Application under Order XXXIX Rule 2A CPC lies only where
disobedience/breach of an injunction granted or order complained of
was one, that is granted by the court under Order XXXIX Rules 1 & 2
CPC, which is naturally to enure during the pendency of the suit.
However, once a suit is decreed, the interim order, if any, merges into
the final order.
No litigant can derive any benefit from mere pendency of case in
a Court of Law, as the interim order always merges in the final order to
be passed in the case and if the case is ultimately dismissed, the interim
order stands nullified automatically. (Vide: Dr. A.R. Sircar v. State of
U.P. & Ors., 1993 Suppl. (2) SCC 734; Shiv Shanker & Ors. v.
Board of Directors, UPSRTC & Anr., 1995 Suppl (2) SCC 726;
Committee of Management, Arya Nagar Inter College, Arya
Nagar, Kanpur, through its Manager & Anr. v. Sree Kumar Tiwary
& Anr., AIR 1997 SC 3071; M/s. GTC Industries Ltd. v. Union of
1
India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corpn. v.
C.L. Mishra, (2005) 8 SCC 423).
10. In case there is a grievance of non-compliance of the terms of the
decree passed in the civil suit, the remedy available to the aggrieved
person is to approach the execution court under Order XXI Rule 32
CPC which provides for elaborate proceedings in which the parties can
adduce their evidence and can examine and cross-examine the
witnesses as opposed to the proceedings in contempt which are
summary in nature. Application under Order XXXIX Rule 2A CPC is
not maintainable once the suit stood decreed. Law does not permit to
skip the remedies available under Order XXI Rule 32 CPC and resort
to the contempt proceedings for the reason that the court has to exercise
its discretion under the Act 1971 when an effective and alternative
remedy is not available to the person concerned. Thus, when the
matter relates to the infringement of a decree or decretal order
embodies rights, as between the parties, it is not expedient to invoke
and exercise contempt jurisdiction, in essence, as a mode of executing
the decree or merely because other remedies may take time or are more
circumlocutory in character. Thus, the violation of permanent
injunction can be set right in executing the proceedings and not the
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contempt proceedings. There is a complete fallacy in the argument that
the provisions of Order XXXIX Rule 2A CPC would also include the
case of violation or breach of permanent injunction granted at the time
of passing of the decree.
11. In Food Corporation of India v. Sukha Deo Prasad, AIR
2009 SC 2330, this Court held that the power exercised by a court
under Order XXXIX Rule 2A is punitive in nature, akin to the power to
punish for civil contempt under the Act 1971. Therefore, such powers
should be exercised with great caution and responsibility. Unless there
has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the
question of entertaining an application under Order XXXIX Rule 2A
does not arise. In case there is a final order, the remedy lies in
execution and not in an action for contempt or disobedience or breach
under Order XXXIX Rule 2A. The contempt jurisdiction cannot be
used for enforcement of decree passed in a civil suit.
12. The proceedings under Order XXXIX Rule 2A are available
only during the pendency of the suit and not after conclusion of the
trial of the suit. Therefore, any undertaking given to the court during
the pendency of the suit on the basis of which the suit itself has been
1
disposed of becomes a part of the decree and breach of such
undertaking is to be dealt with in execution proceedings under Order
XXI Rule 32 CPC and not by means of contempt proceedings. Even
otherwise, it is not desirable for the High Court to initiate criminal
contempt proceedings for disobedience of the order of the injunction
passed by the subordinate court, for the reason that where a decree is
for an injunction, and the party against whom it has been passed has
wilfully disobeyed it, the same may be executed by attachment of his
property or by detention in civil prison or both. The provision of Order
XXI Rule 32 CPC applies to prohibitory as well as mandatory
injunctions. In other words, it applies to cases where the party is
directed to do some act and also to the cases where he is abstained from
doing an act. Still to put it differently, a person disobeys an order of
injunction not only when he fails to perform an act which he is directed
to do but also when he does an act which he is prohibited from doing.
Execution of an injunction decree is to be made in pursuance of the
Order XXI Rule 32 CPC as the CPC provides a particular manner and
mode of execution and therefore, no other mode is permissible. (See:
Hungerford Investment Trust Ltd. (In voluntary Liquidation) v.
Haridas Mundhra & Ors., AIR 1972 SC 1826).
1
13. There can be no dispute regarding the settled legal proposition
that conferment of jurisdiction is a legislative function and it can
neither be conferred with the consent of the parties nor by a superior
court, and if the court passes order/decree having no jurisdiction over
the matter, it would amount to a nullity as the matter goes to the roots
of the cause. Such an issue can be raised at any belated stage of the
proceedings including in appeal or execution. The finding of a court or
tribunal becomes irrelevant and unenforceable/inexecutable once the
forum is found to have no jurisdiction. Acquiescence of a party equally
should not be permitted to defeat the legislative animation. The court
cannot derive jurisdiction apart from the statute. (Vide: The United
Commercial Bank Ltd. v. Their Workmen AIR 1951 SC 230; Smt.
Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj
Studios Pvt. Ltd. v. Navrang Studio & Anr., AIR 1981 SC 537;
Sardar Hasan Siddiqui & Ors. v. State Transport Appellate
Tribunal, U.P., Lucknow & Ors. AIR 1986 All. 132; A.R. Antulay
v. R.S. Nayak & Anr., AIR 1988 SC 1531; Union of India & Anr. v.
Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement
Trust, Karnal v. Prakash Wanti (Smt.) (Dead) & Anr., (1995) 5
SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. &
1
Ors., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar
Chimanlal Barot & Anr., AIR 1996 SC 2664; Kesar Singh & Ors. v.
Sadhu, (1996) 7 SCC 711; Kondiba Dagadu Kadam v. Savitribai
Sopan Gujar & Ors., AIR 1999 SC 2213; and Collector of Central
Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC
2484).
When a statute gives a right and provides a forum for
adjudication of rights, remedy has to be sought only under the
provisions of that Act. When an Act creates a right or obligation and
enforces the performance thereof in a specified manner, "that
performance cannot be enforced in any other manner". Thus for
enforcement of a right/obligation under a statute, the only remedy
available to the person aggrieved is to get adjudication of rights under
the said Act. (See: Doe d. Rochester (BP) v. Bridges, 109 ER 1001;
Barraclough v. Brown, 1897 AC 615; The Premier Automobiles
Ltd. v. K.S.Wadke & Ors., AIR 1975 SC 2238; and Sushil Kumar
Mehta v. Gobind Ram Bohra (Dead) thr. L.Rs., (1990) 1 SCC 193).
14. In Samee Khan v. Bindu Khan, AIR 1998 SC 2765, this Court
explained the distinction between a civil and criminal contempt
observing that enforcement of the order in civil contempt is for the
1
benefit of one party against another, while object of criminal contempt
is to uphold the majesty of law and the dignity of the court. The scope
of the proceedings under Order XXXIX Rule 2A CPC is entirely
different. It is a mode to compel the opposite party to obey the order of
injunction by attaching the property and detaining the disobedient party
in civil prison as a mode of punishment for being guilty of such
disobedience. Breach of undertaking given to the court amounts to
contempt in the same way as a breach of injunction and is liable to be
awarded the same punishment for it.
15. It is a settled legal proposition that the executing court does not
have the power to go behind the decree. Thus, in absence of any
challenge to the decree, no objection can be raised in execution. (Vide:
State of Punjab & Ors. v. Mohinder Singh Randhawa & Anr .,
AIR 1992 SC 473).
16. The case requires to be considered in the light of the aforesaid
settled legal proposition.
Whatever may be the circumstances, the court decreed the suit
vide judgment and decree dated 12.5.2003. The said decree was passed
on the basis of admission/undertaking made by the appellant on
1
29.4.2003 and the pleadings taken by him in his written statement.
Therefore, in a case where there was any disobedience of the said
judgment and decree, the application under Order XXXIX Rule 2A
CPC should not have been entertained. Such an application is
maintainable in a case where there is violation of interim injunction
passed during the pendency of the suit. In the instant case, no interim
order had ever been passed. Thus, the appropriate remedy available to
the decree holder-Mohd. Yusuf had been to file application for
execution under Order XXI Rule 32 CPC. The procedure in execution
of an injunction decree is same as prescribed under Order XXXIX Rule
2A i.e. attachment of property and detention of the disobedient to get
the execution of the order. In view thereof, all subsequent proceedings
were unwarranted.
17. Application of the decree holder had been for violation of the
undertaking which at the most could be civil contempt as defined under
Section 2(b) of the Act 1971 as it includes the wilful breach of an
undertaking given to a court. Therefore, the Trial Court failed to make
a distinction between civil contempt and criminal contempt. A mere
disobedience by a party to a civil action of a specific order made by the
court in the suit is civil contempt for the reason that it is for the sole
1
benefit of the other party to the civil suit. This case remains to the
extent that, in such a fact situation, the administration of justice could
be undermined if the order of a competent court of law is permitted to
be disregarded with such impunity, but it does not involve sufficient
public interest to the extent that it may be treated as a criminal
contempt. It was a clear cut case involving private rights of the parties
for which adequate and sufficient remedy had been provided under
CPC itself, like attachment of the property and detention in civil prison,
but it was not a case wherein the facts and circumstances warranted the
reference to the High Court for initiating the proceedings for criminal
contempt.
18. The High Court in para 29 of the impugned judgment has taken
note of various judgments of this Court including Dhananjay Sharma
v. State of Haryana & Ors., (1995) 3 SCC 757; Rita Markandey v.
Surjit Singh Arora, (1996) 6 SCC 14; and Murray & Co. v. Ashok
Kr. Newatia & Anr., (2000) 2 SCC 367, wherein it has been held that
filing of a false affidavit or taking false pleadings in the court amounts
to criminal contempt. The High Court failed to appreciate the
nature/status of proceedings in which the alleged false affidavit had
been filed. The instant case is quite distinguishable on facts from those
1
cases. In the instant case, proceedings under Order XXXIX Rule 2A
CPC were not maintainable at all. Had the complainant Mohd. Yusuf
filed the execution proceedings under Order XXI Rule 32 CPC, the
court could have proceeded in accordance with law without going into
the averments raised therein by the appellant.
19. In a given case if the court grants time to a tenant to vacate the
tenanted premises and the tenant files an undertaking to vacate the
same after expiry of the said time, but does not vacate the same, the
situation would be altogether different. (See: Sakharan Ganesh
Aaravandekar & Anr. v. Mahadeo Vinayak Mathkar & Ors.,
(2008) 10 SCC 186; and Mahender Kumar Gandhi v. Mohammad
Tajer Ali & Ors., (2008) 10 SCC 795).
In an appropriate case where exceptional circumstances exist,
the court may also resort to the provisions applicable in case of civil
contempt, in case of violation/breach of undertaking/judgment/order or
decree. However, before passing any final order on such application,
the court must satisfy itself that there is violation of such judgment,
decree, direction or order and such disobedience is wilful and
intentional. Though in a case of execution of a decree, the executing
court may not be bothered whether the disobedience of the decree is
2
wilful or not and the court is bound to execute a decree whatever may
be the consequence thereof. In a contempt proceeding, the alleged
contemnor may satisfy the court that disobedience has been under some
compelling circumstances, and in that situation, no punishment can be
awarded to him. (See: Niaz Mohammad & Ors. v. State of Haryana
& Ors, (1994) 6 SCC 332; Bank of Baroda v. Sadruddin Hasan
Daya & Anr., AIR 2004 SC 942; and Rama Narang v. Ramesh
Narang & Anr., AIR 2006 SC 1883)
Thus, for violation of a judgment or decree provisions of the
criminal contempt are not attracted.
20. The application filed under Order XXXIX Rule 2A CPC
bearing Misc. No.89/2003 by the decree holder contains the following
pleadings and prayer was made to punish the said contemnors:
"To his utter amazement, the petitioner-applicant
on 4th of August 2003 on visiting the site (148,
Village Khirki, New Delhi) learnt that the
respondents in league and collusion with one
another in deliberate and wilful breach of the
aforementioned statement, assurance and/or
undertaking had broken open locks and doors of
the premises in reference 148, Village Khirki, New
Delhi and taken possession thereof, thereby
committing grave contempt of the Hon'ble Court
(by breach of the aforementioned statement, assurance
and/or undertaking furnished on 29th of April 2003
2
as accepted by the learned Civil Judge on 12th May
2003)."
The Civil Court considered the said application; took notice of
the facts and in its order dated 16.2.2004 held:
"It also shows that plaintiff was in possession of
the suit property on the date of making the
statement. As on today, the respondents are in
possession of the suit property. Even the
respondent had not denied this fact rather their
contention is that plaintiff was never in possession
of the suit property. Further, a local commissioner
was appointed and has also corroborated the fact
that respondents are in possession. Therefore,
prima facie, it appears that plaintiff has been
dispossessed from the suit property by the
respondents. The contention of the respondent
no.1 that plaintiff was never in possession runs
counter to the written statement of defendant filed
in the original suit. Moreover, this fact needs
evidence and evidence will be led only before
Hon'ble High Court. Therefore, prima facie case
for reference of the contempt petition has been
made out."
The Court reached the following conclusion :
"As to the contention of learned counsel for
respondent no.1 that evidence is required before
making a reference, the provision of section 11 of
the Contempt of Courts Act, 1971 are to be noted.
Section 11 says that it is the Hon'ble High Court
which has jurisdiction to inquire into or try the
contempt petition. Therefore, the contention has
no force. This Court has only to see that prima
facie case exist for referring the contempt."
2
The Court made the reference as under:
"However, against other respondents there is no
material for making the reference. In view of the
above, a reference is made to the Hon'ble High
Court with humble prayer to try the contempt
petition against respondent no.1 and to punish the
guilty accordingly. Application is disposed of
accordingly."
21. In view of the above discussion, as such proceedings were not
maintainable, the order of reference itself was not warranted. It also
becomes crystal clear that the appellant had been subjected to unfair
procedure from the institution of the suit itself. The suit had been
"disposed of" in great haste without following the procedure prescribed
in CPC. Once the suit has been decreed, the court could not entertain
the application under Order XXXIX Rule 2A CPC as the suit had
already been decreed and such an application is maintainable only
during the pendency of the suit in case the interim order passed by the
court or undertaking given by the party is violated. In the instant case,
no interim order had ever been passed and the undertaking given by the
appellant/defendant not to dispossess the said plaintiff culminated into
a final decree and thus, if any further action was required, it could be
taken only in execution proceedings. There has been manifest injustice
in the case and the doctrine of ex debito justitiae has to be applied in
2
order to redress the grievances of the appellant/defendant. Judgment
and order impugned cannot be sustained under any circumstance.
22. The courts below have proceeded with criminal contempt
proceedings not for disobeying any judgment or order but for taking
inconsistent pleas in the reply filed by the appellant to the application
under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit.
Purposes of initiation of contempt proceedings are two-fold: to ensure
the compliance of the order passed by the court; and to punish the
contemnor as he has the audacity to challenge the majesty of law. In
the instant case, admittedly, the grievance of the complaint had been
disobedience of decree/order of the civil court dated 12.5.2003. The
High Court convicted the appellant and sent him to jail but did not
grant any relief so far as the enforcement of the order dated 12.5.2003
is concerned. We failed to understand as under what circumstances,
the High Court did not even consider it appropriate to enforce the
judgment/order/decree if it had been disobeyed by the appellant. The
instant case is a glaring example of non-application of mind and non-
observance of procedure prescribed by law for dealing with such
matters. Entire proceedings have been conducted in most casual and
cavalier manner.
2
23. Learned counsel for the contesting respondent has placed a very
heavy reliance on the judgments of this Court in Palitana Sugar Mills
Private Limited & Anr. v. Vilasiniben Ramachandran & Ors.,
(2007) 15 SCC 218; and C. Elumalai & Ors. v. A.G.L. Irudayaraj &
Anr., AIR 2009 SC 2214, wherein this court held that wherever there
is a wilful disobedience/contumacious conduct - deliberate flouting of
the order of the court, it amounts to contempt and it becomes the duty
of the court to exercise its inherent power to set the wrong right as a
party cannot be permitted to perpetuate the wrong by disobeying the
order further.
In the case at hands, the court initiated criminal contempt
proceedings but ultimately after convicting the appellant did not
enforce the order passed by the Civil Court dated 12.5.2003.
24. In Daroga Singh & Ors. v. B.K. Pandey, (2004) 5 SCC 26,
this Court rejected the plea of the contemnors that the High Court could
not initiate the contempt proceedings in respect of the Contempt of the
Courts subordinate to it placing reliance upon earlier judgments in
Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149;
Brahma Prakash Sharma & Ors. v. The State of U.P., AIR 1954 SC
10; and State of Madhya Pradesh v. Revashankar, AIR 1959 SC
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102. The Court further explained the scope of contempt proceedings
observing:
".......... For the survival of the rule of law the
orders of the courts have to be obeyed and
continue to be obeyed unless overturned,
modified or stayed by the appellate or revisional
courts. The court does not have any agency of its
own to enforce its orders. The executive authority
of the State has to come to the aid of the party
seeking implementation of the court orders. The
might of the State must stand behind the court
orders for the survival of the rule of the court in
the country. Incidents which undermine the
dignity of the courts should be condemned and
dealt with swiftly....... .......... If the judiciary has
to perform its duties and functions in a fair and
free manner, the dignity and the authority of the
courts has to be respected and maintained at all
stages and by all concerned failing which the
very constitutional scheme and public faith in the
judiciary runs the risk of being lost."
25. The contempt proceedings being quasi-criminal in nature, the
standard of proof requires in the same manner as in other criminal
cases. The alleged contemnor is entitled to the protection of all
safeguards/rights which are provided in the Criminal Jurisprudence,
including the benefit of doubt. There must be a clear-cut case of
obstruction of administration of justice by a party intentionally to bring
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the matter within the ambit of the said provision. The case should not
rest only on surmises and conjectures.
In Debabrata Bandopadhyay & Ors. v. The State of West
Bengal & Anr., AIR 1969 SC 189, this Court observed as under:
"A question whether there is contempt of court or
not is a serious one. The court is both the accuser
as well as the judge of the accusation. It behoves
the court to act with as great circumspection as
possible making all allowances for errors of
judgment and difficulties arising from inveterate
practices in courts and tribunals. It is only when a
clear case of contumacious conduct not
explainable otherwise, arises that the contemnor
must be punished......... Punishment under the law
of Contempt is called for when the lapse is
deliberate and in disregard of one's duty and in
defiance of authority. To take action in an
unclear case is to make the law of contempt do
duty for other measures and is not to be
encouraged."
(Emphasis added)
26. In view of the above, as the application under Order XXXIX
Rule 2A CPC itself was not maintainable all subsequent proceedings
remained inconsequential. Legal maxim "sublato fundamento cadit
opus" which means foundation being removed structure falls is
attracted.
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27. Thus, taking into consideration, the fact situation involved in
the case, the appeal is allowed. The impugned judgment and order
dated 20.7.2009 passed by the High Court of Delhi at New Delhi in
Contempt Case (Crl.) No. 9 of 2004 is hereby set aside. His bail bonds
stand discharged.
28. However, we clarify that any observation made in this judgment
shall not affect, in any manner, merit of other cases pending between
the parties in regard to the Suit property.
.................................J.
(P. SATHASIVAM)
.................................J.
(Dr. B.S. CHAUHAN)
New Delhi,
September 23, 2011
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