IN RE SHARIF AHMAD v. KHALILUR RAHMAN — 1983 DIGILAW 929 (ALL)

I. P. SINGH, J. ( 1 ) THIS application under Section 12 of the Contempt of courts Act, 1971 has been moved by Sharif Ahmad and two others, who are originally the plaintiffs in suit No. 36 of 1976 of the Court of Civil Judge, Azamgarh, Anwar Ahmad and others v. Samshuddin and others (including opposite parties 1 and 2) which was filed for permanent injunction to restrain the defendants of that suit from interfering in the religious performances and offering of Namaz etc. by the plaintiffs in the Masjid in suit. This application was moved against five opposite parties. However, before the facts are entered into it may be observed that the present application was dismissed as against opposite parties Nos. 4 and 5 on 12. 8. 1983. ( 2 ) ACCORDINGLY the present application is to be considered against the remaining opposite parties Nos. 1,2 and 3 only. The Civil Judge had refused the temporary injunction prayed for. Anwar Ahmad and 26 others plaintiffs filed Civil Misc. Appeal No. 75 of 1976, Anwar Ahmad had others v Molvi Samshuddin and others, in the Court of District Judge, Azamgarh. That appeal was allowed on 28. 3. 1977 and the temporary injunction prayed for was granted. Against this order Molvi Samshuddin and others (including Mohd. Yunus) defendants filed Civil Revision No. 654 of 1977, Mo/vi Samshuddin and others v. Anwar Ahmad and others, in the High Court. The copy of the order dated 20. 12. 1977 passed by the High Court in that revision is Annexure 1. It shows that during the pendency of the said revision the learned counsel for the parties had stated on behalf of their clients that the parties were agreed between themselves that the defendants may construct Masjid on its old site and may also raise a boundary wall on the land shown by letters A,b,c,d, CI, C-2, D,e F, I, F, G in the Commissioners map 14-C-2. But they shall not obstruct the entry of the plaintiffs over the land in dispute and for the use of the same for religious activities. In view of the above statement made the revision was dismissed as not pressed. ( 3 ) IN the present application the three applicants have contended that they were also the plaintiffs and the defendants were restrained (by the order of the High Court dated 20. 12. In view of the above statement made the revision was dismissed as not pressed. ( 3 ) IN the present application the three applicants have contended that they were also the plaintiffs and the defendants were restrained (by the order of the High Court dated 20. 12. 1977) from obstructing their entry over the said land and from using the same for religious activities. However, their contention is that Mohd. Yunus and others, defendants, got the Masjid reconstructed on its old site and they wanted to remove ballis, Patras and other wood from the said Masjid add wanted to clean the same but they were obstructed from doing so by the opposite parties Nos. 1, 2 and 3. Accordingly Mohd. Yunus and others, defendants moved an application in the Court of Civil Judgeii. Azamgarh for issuing commission to the Civil Court Amin to remove the articles and wood used in connection with slab at the time of reconstruction of the Masjid in question. The copy of order passed by Civil Judge-Il on 24. 8. 1979 on the said application is Annexure T2t. Its perusal shows that there was some dispute between the parties regarding the title of Ballis, Patras- and wood in question. The learned Civil Judge-Il observed while passing the said order that under the circumstances, it would not be proper at this very time to decide the title of the wood, Patras and kuris used in the slab. It appears that what Mohd. Yunus and others want is the removal of the wood etc. and cleaning of the Masjid for offering prayer. The application of Mohd. Yunus and others by partly allowed. Let a commission be issued to the Civil Court Amin who will remove ballis, Karis, Patras etc. from the Sanoba of the masjid and get the masjid cleaned. The Amin will prepare the list of the articles and file the same in the Court. The wood and Patras etc. will be kept in a portion of the land in suit and the same will be given in the Supurdgi of a prudent man. After the decision of the case on merit if the wood etc. are found as the properties belonging to Mohd. Yunus and others, then defendants 1 to 3 (the objectors) would be liable to pay damages on such rate as the Court deems fit. After the decision of the case on merit if the wood etc. are found as the properties belonging to Mohd. Yunus and others, then defendants 1 to 3 (the objectors) would be liable to pay damages on such rate as the Court deems fit. ( 4 ) IT is contended by the applicants (plaintiffs) that on 1-9-1979 the Civil Court Amin visited the spot after the notices to the counsel of the parties and at that time the applicants (plaintiffs) were obstructed from entering into the mosque for offering the prayers by the opposite parties 1,2 and 3. According to the applicants opposite party No. 3 Zainul-Ahdin is the Pairokar of Sham shuddin (one of the defendants in suit) and he had obstructed the applicants in his capacity as Pairokar of Samshuddin defendant. The report of Civil Court Amin dated 6-9. 1979, which he submitted to the Court, was Annexure 3. With these allegations the prayer is made that opposite parties 1, 2 and 3 (I am omitting the prayar against opposite parties 4 and 5 inasmuch as the present application against them has already been dismissed on 12. 8. 1983) be punished under the provisions of Contempt of Courts Act. ( 5 ) THE above application is supported by the affidavit of Sharif Ahmad applicant No. 1 ( 6 ) KHALILUR Rahman O. P. No. 1 filed the counter affidavit on behalf of himself as well as opposite parties 2 and 3 as their Pairokar. In paragraph 6 of the counter affidavit it is vouched that opposite parties Nos. 1 and 2 were not present on the spot i. e. mosque on 1. 9. 1979 and that opposite party No. 3 had no knowledge whether the applicants and Mohd. Yunus had come to offer prayer on 1. 9. 79 or not. In this way indirectly the presence of opposite party No. 3 on the spot at the relevant date and time is also denied. In paragraph 7 of the counter affidavit it was contended that opposite party No. 3 was not the Pairokar of Shamshuddih defendant. In paragraph 4 it was contended that opposite party No. 3 was neither a party in the suit nor a resident of Mohalla where the mosque was situated. In paragraph 7 of the counter affidavit it was contended that opposite party No. 3 was not the Pairokar of Shamshuddih defendant. In paragraph 4 it was contended that opposite party No. 3 was neither a party in the suit nor a resident of Mohalla where the mosque was situated. In the said counter affidavit the alleged obstruction to the plaintiffs applicants in entering the mosque or offering Namaz or performing other religious activities was denied. In paragraph 10 it was specifically stated that, it is incorrect to say that the opposite parties have deliberately and wilfully obstructed the applicants from offering prayer in the Mosque. The fact is that the opposite parties Nos. 1 to 3 have never objected the plaintiffs from offering prayers etc. The allegation is baseless and false. It is also incorrect to say that the opposite parties are liable to be punished as they have disobeyed the order of the court. The opposite parties have never disobeyed the order of Court. ( 7 ) THE obvious fact pleaded by the opposite parties Nos. 1, 2 and 3 is that they were not present on the spot i. e. the mosque in question on 1-9-1979 when the Amin is said to have reached there to execute the commission and since they were not present on the spot there could not arise any question a bout their causing the alleged obstruction. As seen above the applicants had filed the Amins report as Annexuret 3t In it the Amin had reported that he had reached the spot on 1-9- 1979 after giving intimation to the counsel of the parties and found Sri Ashok Kumar Srivastava counsel for the plaintiffs, Sri Akul Mufid, counsel for the defendants and set. Of course Sri Pratap Narain, counsel for the defendants-ist set was not present. He further reported that the other persons present were Khalilur Rahman (O. P. No. 1), Abdul Ban (O. P. No. 2), Zainul Abdin (O. P. No. 3) Pairokar of defendants 1st set etc. , Dau, Mushtaq Ahmad and Nisar Ahmad on behalf of Mohd. Yunus (defendants lind set ). He further reported that eight persons were also present to perform the work (desired to be executed on the spot in pursuance of the court order ). , Dau, Mushtaq Ahmad and Nisar Ahmad on behalf of Mohd. Yunus (defendants lind set ). He further reported that eight persons were also present to perform the work (desired to be executed on the spot in pursuance of the court order ). He further reported that the moment he started the work of opening the Sancha (removal of Ballis, Patras and wood) then defendants 1st set Khalilur Rahman (O. P. No. 1) and Abdul Ban (O. P. No. 2) etc. , obstructed the carrying out of the said work (Karya kame se etraj paida kiya ). He further reported that at that time some persons had arrived there to offer Parsadi and Puja Patht but those persons were not allowed to offer their prayers. So those persons went back. ( 8 ) IT is true that the Amin in his said report did not disclose the names of those persons, who had come to offer prayers but Sharif Ahmad (Applicant No. 1) in his affidavit filed in support of the application vouched in paragraphs 10 and 11 that the applicants had gone to the mosque to offer prayers (Tnamaz) and to perform the religious activities and they were obstructed by the opposite parties Nos. 1, 2 and 3 from entering the mosque and offering the prayers. In the first place, if opposite parties Nos. 1, 2 and 3 claim to be not present on the spot at that time then they cannot be in a position to deny the visit of the applicants to the said mosque at that time to offer their prayer. Secondly, their presence on the spot on that date is reported by the Amin which fact is corroborated by the affidavit of Sharif Ahmad applicant No. 1. Obviously then no reliance can be placed on the affidavit of Khalilur Rahman (O. P. No. 1) and all the denials contained therein do not inspire confidence. In this circumstance there is no reason why the allegations contained in the application as supported by the affidavit of Sharifahmad applicant No. 1 be not believed. ( 9 ) IT is argued on behalf of opposite parties that Zainul Abdin (O. P. No. 3) was not a party to the suit and the allegation of he applicants that he was Pairokar of shamshuddin etc. (Defdts. ( 9 ) IT is argued on behalf of opposite parties that Zainul Abdin (O. P. No. 3) was not a party to the suit and the allegation of he applicants that he was Pairokar of shamshuddin etc. (Defdts. 1st set) had been denied in the counter affidavit to which no rejoinder affidavit was filed on behalf of the applicants and as such it should be held that Zainul Abdin being neither a party nor a Pairokar was in no way involved in the litigation and atleast he cannot be said to have committed any contempt of Court. But it is mentioned in Annexure T2t, the copy of order of Civil Judge-Il dated 24-8-1979, that the original suit had been filed under Order 1 Rule 8 Criminal Procedure Code. It was pointed nut on behalf of the applicants that in the said suit both sides were prosecuting and defending the suit in a representative capacity and as such Zainul Abdin was as much bound by the injunction order as defendants arrayed in the suit. The Amin too in his report had described Zainul Abdin as the Pairokar of defendants 1st set. But nevertheless when the Amin was reporting about the actual obstruction caused in the execution of the commission he stated that the defendants 1st set Khalilur Rahman and Abdul Ban etc. , had objected to the execution of the work. It is obvious that the Amin had not specifically named Zainul Abdin as one of the obstructers though the word etc. was added against the names of Khalilur Rahman and Abdul Ban (O. Ps. Nos. 1 and 2 ). The Amins report taken as a whole leaves the impression that though Zainul Abdin, was present on the spot in his capacity as Pairokar of defendants 1st set yet he has not specifically named as one of the persons who objected to the execution of the work by Amin or for that matter put up obstruction to the Amins work or prevented the applicants in entering the mosque and offering their prayer and performing other religious activities. For these considerations it cannot conclusively be said that Zainul Abdin (O. P. No. 3) had actually committed the acts complained of. ( 10 ) THE argument of the applicants is that opposite-parties No. 1 to 3 have acted in violation of the injunction order of the High Court dated 20. 12. For these considerations it cannot conclusively be said that Zainul Abdin (O. P. No. 3) had actually committed the acts complained of. ( 10 ) THE argument of the applicants is that opposite-parties No. 1 to 3 have acted in violation of the injunction order of the High Court dated 20. 12. 77 and so have committed contempt of the Court. In other words, it is given out that although the High Court in its order dated 20. 12. 77 had restrained the defendants (including opposite-parties 1 to 3) from preventing the plaintiffs (including the present applicants) in entering the mosque in suit and offering their prayers (Namaz) and performing other religious activities yet the opposite-parties 1 to 3 prevented the applicants from doing so, and thus committed contempt of this Court. ( 11 ) THE first question that arises is as to whether the said order dated 20. 12. 71 was an injunction order of the Court? By that order, the revision was dismissed as not pressed, in view of the statement of the counsel of the parties that the parties had come to terms between themselves. These terms were also recorded in that order. One term of the agreement was that defendants shall not obstruct the entry of the plaintiffs over the land in dispute and for the use of the same for religious activities. ( 12 ) IN this connection, reliance can be placed on the case of B. R. Gupta v. Sudhir Bhasin and another1 in which it was held, There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party bas a right to enforce the order or the compromise, by their executing the order or getting an injunction from the court. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party bas a right to enforce the order or the compromise, by their executing the order or getting an injunction from the court. ( 13 ) IT was further observed therein that it is well settled that while it is the duty of the court to punish a person who tries to obstruct the course of justice or bring into disrepute the institution of judiciary this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts. TI ( 14 ) IN the above quoted decision reference was made to Aligarh Municipal Board v. Ekka Tonga Mazdoor Union2 and extracts from that were quoted as follows It may also be pointed out that in order to justify action for contempt of court for breach of a prohibitive order it is not necessary that the order should have been officially served on the party against whom it is granted if it is proved that he has notice of the order aliunde and he knew that it was intended to Tbe enforced Contempt proceedings against a person who has failed to comply with the Courts order serves a dual purpose. (1) vindication of the public interest by punishment of contemptuous conduct and (2) Coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Courts order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt. ( 15 ) THEIR Lordships then went on to observe, These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written under taking given by the applicant that he would cooperate with the receiver or that he would hand over possession of the Cinema to the receiver. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written under taking given by the applicant that he would cooperate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, 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 toe 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. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. ( 16 ) IT was further observed, Indeed, if they were to hold that non-compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner 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. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practice by the person concerned not on the court but on one of the parties. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practice by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases, In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not TI ( 17 ) IN the present case as already mentioned above, the High Courts order dated 20. 12. 77, annexure 1, indicates that during the pendency of the revision the learned counsel for the parties stated on behalf of their clients that the parties had agreed between themselves that the defendants may construct Masjid on its old site and may also raise the boundary wall on the land shown by letters ABC, C-I, C-2, D E F I F G in the Comm issioners map 14-C-2, but they shall not obstruct the entry of the plaintiffs over the land in dispute and in the use of the same for religious activities. In view of the above statement made the revision was dismissed as not pressed. ( 18 ) IT is therefore Quite clear that what the High Court recorded in its above order was the statement of the counsel for the parties as to what the parties had agreed between themselves. In this way, the parties, themselves, by their compromise, had created rights and obligations inters. None of the parties had given any undertaking to Court nor the court had imposed any condition to be fulfilled by any of the parties. The said order of this Court did not amount to an injunction order against the defendants, who are opposite parties, in the present application. None of the parties had given any undertaking to Court nor the court had imposed any condition to be fulfilled by any of the parties. The said order of this Court did not amount to an injunction order against the defendants, who are opposite parties, in the present application. ( 19 ) ACCORDINGLY in view of the above quoted decision of the Honble Supreme Court it cannot be said that opposite-parties 1 to 3 acted in violation of any injunction order of this Court. The applicants presumably thought that this Courts order dated 20. 12. 77 operated as injunction order against defendants opposite-parties 1 to 3, restraining them from preventing the plaintiffs) including the present applicants in entering the mosque in suit and offering their prayers (Namaz) and performing other religious activities. To my mind this assumption is entirely unwarranted. ( 20 ) IN the circumstances, I see no force in the present application which is hereby dismissed. There will be no order as to costs. Application dismissed. .