Bihari Lal v. Beena Misra — 1989 DIGILAW 730 (ALL)

JUDGMENT K.P.Singh, J. 1. This is an application under section 12 of the Contempt of Courts Act, 1971 filed by the plaintiff-decree holder against the defendant opposite party. 2. Shorn of unnecessary details, the facts giving rise to the above mentioned application are these. The applicants' suit for eviction of the defendant opposite party was decreed by the trial court on 15-3-1986. The appeal against the judgment of the trial court failed on 30-7-1986. The second appeal was also dismissed by me on 20-10-1986 and the operative portion runs as below :- "There is no substantial question of law involved in the present second appeal. The appeal is accordingly dismissed under Order 41 Rule 11 CPC subject to the condition that the appellant shall remain in the house in suit for six months and in the meantime she shall make alternative arrangement and hand over the peaceful possession of the house in suit to the respondent. The appellant shall pay to the respondent at the rate decreed by the court below for use and occupation, for . coming six months and she shall also pay the arrears of rent as decreed by the courts below. The above observation has been made on the undertaking of the learned counsel for the appellant. A copy of the order may be given within 24 hours." Two applications were moved by the opposite party for extension of time which were allowed. 3. Another application was moved by the opposite party Km. Beena Misra for extension of time and the same was disposed of by me on 10-9-1987 with the following observation :- "Heard the applicant and the learned counsel for the opposite parties. More than 11 months time has been granted to the applicant to give possession to the opposite parties. On the last occasion she had stated that she would not pray for any extension of time but again she has applied for further six months time to vacate the premises in question. In the facts and circumstances of the present case, I do not consider it a fit case for extension of any further time to the applicant. More than sufficient time has been granted. Now the applicant, should vacate the premises peacefully so that the opposite parties may get possession over the premises in question. The application is hereby rejected." 4. In the facts and circumstances of the present case, I do not consider it a fit case for extension of any further time to the applicant. More than sufficient time has been granted. Now the applicant, should vacate the premises peacefully so that the opposite parties may get possession over the premises in question. The application is hereby rejected." 4. Thereafter the opposite party appears to have filed an objection under section 47 of the Code of Civil Procedure and have prayed for stay of the execution proceeding which was rejected by the trial court. Against that order, the revision was allowed by the District Judge, Kanpur Nagar on 4-1-1988. It appears that the objection filed by the contesting opposite party Km. Beena Misra was dismissed by the trial court on 13-4-1988. Against the order of the trial court, a miscellaneous Appeal no. 111 of 1988 appears to have been filed by the opposite party which is pending before the 5th Addl. District Judge, Kanpur Nagar. The execution of the ex parte order appears to have been stayed by the order dated 18-12-1988. When the revision petition preferred by the aforesaid Km. Beena Misra was allowed by the District Judge on 4-1-1988 against the order dated 20-11-1987 rejecting the stay application, the decree-holder applicant moved this court for punishing the opposite party on the allegations committing contempt of this court through an application dated 18-1-1988. A learned Single Judge of this court indicated that the case should be listed before me for admission. On 18-2-1988 the Acting Chief Justice directed the case to be listed before me. On 21-3-1988 time was granted to the applicant to file the copy of the objection filed by the opposite party and directed the case to be listed on 8-4-1988. On 8-4-1988 it appears that the copy of the objection preferred by the contesting opposite party in the execution proceedings was filed along with an affidavit and thereafter I passed the following order : "Let notice go to Km. Beena Misra daughter of Vidya Dhar Misra, resident of 1/4 Kamla Nagar Colony, Kanpur to show cause why should she not be punished for contempt. Beena Misra daughter of Vidya Dhar Misra, resident of 1/4 Kamla Nagar Colony, Kanpur to show cause why should she not be punished for contempt. She should appear personally or through some counsel on 9-5-1988 before this court." It appears that on 6-12-1988 one Sri J. P. Srivastava Advocate of this court filed Vakalatnama on behalf of the sole opposite party and the case was listed before me on 7-12-1988 and on that date I directed that the case be listed correctly with the name of Sri J. P. Srivastava counsel for the opposite party on 13-12-1988. On 14-12-1988, I passed the following order :- "Admit. Issue notice. Three weeks time is granted to the opposite party to file counter affidavit." On 23-1-1989 and 24-1-1989 on the illness slip of Sri J. P. Srivastava, Advocate, the case was passed over. Again on 30-1-1989 the case was passed over. On 8-2-1989 on the illness slip of Sri Vijai Bahadur, counsel for the applicant, the case was passed over. On 9-2-1989 the following order was passed by me :- "three weeks and no more is granted to the opposite party for filing counter affidavit. The counsel for the opposite party is absent. Let a notice be sent to Km. Beena Misra to appear in this court on 7-3-1989. If she does not appear on the date, she would be punished for contempt. Office will intimate the opposite party Km. Beena Misra that she should be careful in appearing before the court on the date fixed." On 7-3-1989, the following order was passed :- " On 9-2-1989 office was directed to intimate opposite party no. 1 Km. Beena Misra to appear before this court on the date fixed. Office has indicated in the report dt. 3-3-1989 that notices after service have not been received back. Learned counsel for the applicant is directed to take fresh steps with regard to service upon opposite party Km. Beena Misra. The office may take care that the notices may be served upon O. P. no. 1 Km. Beena Misra if necessary through C.M.M. Kanpur. Let the case be listed on 17-4-89 and the office should intimate the opposite party to appear on the date fixed." On the application filed by Sri J. P. Srivastava, 25-4-89 was fixed and the contemner was directed to be present in court. 1 Km. Beena Misra if necessary through C.M.M. Kanpur. Let the case be listed on 17-4-89 and the office should intimate the opposite party to appear on the date fixed." On the application filed by Sri J. P. Srivastava, 25-4-89 was fixed and the contemner was directed to be present in court. However on 25-4-1989 the counter affidavit was filed by Sri O. P. Singh, Advocate of this court and ten days time was granted for filing rejoinder affidavit. The case was directed to be listed on 9-5-1989. The contemner was directed to be present in court. The case was directed to be listed on 17-5-1989. Then on next day the case was taken up but the counsel for the contemner did not appear and on the suggestion of the counsel for the applicant, the case was directed to be listed on 11-7-1989. The learned counsel for the contemner did not appear on 11-7-1989 and the order was reserved. However, I called Sri O. P. Singh, Advocate, in chamber and intimated him of his fault. He requested me for the case to be listed for further hearing and explained his position for absence on 11-7-1989. Accepting his request, I directed the case to be listed for further hearing on 2-8-1989. On 2-8-1989 the case was heard." 5. In view of the facts stated above, the learned counsel for the contesting opposite party has contended before me that the action against the opposite party cannot be taken in the facts and circumstances of the present case as the period of one year provided under section 20 of the Contempt of Courts Act, 1971 has expired. According to him, the last application moved by the contesting opposite party was rejected on 10-9-1987 and the case was admitted by me on 14-12-1988, therefore, one year has passed and no action against the opposite party can be taken. The learned counsel has placed reliance upon a number of rulings such as Barada Kanta Mishra v. Mr. Justice Gatikrishna Misra, C. J. of the Orissa High Court, AIR 1974 SC 2255 , Gulab Singh v. The Principal Sri Ramji Das, 1975 AWC 294, Mohd. The learned counsel has placed reliance upon a number of rulings such as Barada Kanta Mishra v. Mr. Justice Gatikrishna Misra, C. J. of the Orissa High Court, AIR 1974 SC 2255 , Gulab Singh v. The Principal Sri Ramji Das, 1975 AWC 294, Mohd. Idris v. Rustam Jehangir Bapurji, AIR 1984 SC 1826 , Balram Singh v. Bhikam Chand Jain, AIR 1985 SC 1726 , Smt. Bano v. Sri Ram Autar Gautam, 1986 AWC 1039 , Kishan Lal v. Chhotey Lal, 1986 UP LB EC 807, Ram Naresh Singh v. Uma Shankar Bajpai, SS.P. Allahabad, 1987 UP LB EC 742 and Ratna Singh v. Pheeree, 1986 ALJ 1239. 6. The learned counsel for the applicant has submitted in reply that the court really initiated proceedings against the contesting opposite party on 8-4-1988, therefore, the contention raised on behalf of the contesting opposite party should not be accepted and as the contesting opposite party has failed to comply with the undertaking given to this court, she is guilty of contempt of this court and necessary action should be taken against her. THE applicant is being harassed by the lady and despite the order of this court in favour of the applicant, the applicant has not been able to get possession over the premises in question for more than three years. Even today, the contesting opposite party has preferred an appeal, which is pending before the appellate court. It is well known by now; that no appeal lay against an order of the trial court, but purposely she has preferred an appeal which might be converted into a revision in future and the matter may linger on again for year to years and the applicant will not be able to get possession over the disputed premises despite the order of this court. During the course of argument, the learned counsel for the contesting opposite party has placed reliance upon the ruling reported in Baradakanta Misra v. Mr. Justice Gatikrishna Misra, AIR 1974 SC 2255 , wherein it has been indicated as below :- "It is only when the court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt whether suo motu or on a motion or a reference. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt whether suo motu or on a motion or a reference. That is why the terminus a quo for the period of limitation provided in section 20 is the date when a proceeding for contempt is initiated by the court. Where the court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt." 7. In Gulab Singh v. The Principal Sri Ramji Das, 1975 AWC 294 a Division Bench of this court has quoted the observation extracted above and on the facts and circumstances of the reported case, it came to the conclusion that proceedings for contempt were not initiated within the prescribed period. 8. In Gulab Singh v. The Principal Sri Ramji Das, 1975 AWC 294 a Division Bench of this court has quoted the observation extracted above and on the facts and circumstances of the reported case, it came to the conclusion that proceedings for contempt were not initiated within the prescribed period. 8. In Kishan Lal v. Chhotey Lal, 1986 UP LB EC 807, a Single Judge of this Court vide paragraph 5 of the judgment has indicated as below :- "......If an application for taking action under the Contempt of Courts Act is filed within the period of one year from the date of alleged commission of the contempt but the court has not initiated proceedings before the expiry of one year from such date, such application automatically fails and the jurisdiction of the court is barred IN the instant case, though as stated above, the application for initiating proceedings for civil contempt has been filed well within time yet as proceedings for civil contempt have not been initiated within a period of one year from the date of the commission of the contempt, it is not possible to initiate proceedings thereafter." In Smt. Bano v. Sri Ram Autar Gautam, 1986 AWC 1039 , a single Judge of this Court has indicated that where the court makes an order 'show cause as to why the application be not admitted', the aforesaid order would amount that the court has not initiated proceedings and not taken cognizance of the matter but the learned Judge has relied upon a decision of this court reported in Ram Prakash and Bros v. Nagar Mahapalika Lucknow, 1983 AWC 29 , and has observed : "Wherein it has been held that where the order of the court in contempt petition like this is a short one in two words viz 'issue notice' then by issuing notices the court calls upon the notice to show cause why the relief claimed against him in the petition should not be granted and this is all that is required for initiation of proceedings. I am in agreement with the aforesaid view with a slight clarification that where the order of the court in such petitions is in two words 'issue notices' then it connotes that the court has decided to take action and called upon the alleged contemner to show cause why he not be punished for the alleged contempt. I am in agreement with the aforesaid view with a slight clarification that where the order of the court in such petitions is in two words 'issue notices' then it connotes that the court has decided to take action and called upon the alleged contemner to show cause why he not be punished for the alleged contempt. The order may not be a speaking one and the charge as required may not have been framed but it makes clear that by saying that notices be issued the court directs the office to issue notices as required under rules. So I agree with the learned counsel for the petitioner that where the court directs that notices be issued then if there is nothing more to show as to what for the notices are going to be issued then notices will go requiring the alleged contemner to show cause why he not be punished and that amounts to a decision to take action and so amounts to the initiation of the proceedings and taking of the cognizance of the matter." 9. In Ram Naresh Singh v. Uma Shankar Bajpai S. S. P. Allahabad, 1987 UP LB EC 742, another learned Single Judge of this court has indicated as below : "......When a contempt petition is filed before the court there are three options open, firstly if the court is satisfied on the allegations contained in the petition that a prima facie case has been made out the court may issue notice to the contemner to show cause as to why he should not be punished for disobeying the order alleged to have been disobeyed; secondly if the court is not convinced that any prima facie case is made out it may issue a show cause notice to the alleged contemner as to why the petition for contempt should not be admitted; and lastly, may dismiss it straightway." 10. The learned counsel for the contesting opposite party has also placed reliance upon the case Balbhadra Singh v. S. K. Biswas, 1987 ALJ 326 and has emphasised on the following observation : "In this view of the matter, it is not possible to initiate proceedings for civil contempt after one year of the commission of the contempt." In Dinesh Chandra Sharma v. Sri B. K. Benerji, the present Acting Chief Justice Hon K. C. Agarwal, J. has indicated as below : " Issuing of notice for showing cause why proceedings may not be taken for contempt is not an initiation of proceeding. It is simply asking the party to appear and give reasons as to why should proceeding for contempt be not initiated against him. Such a notice does not come within the four corners of section 20 of the Act. " 11. In Ram Prakash and Bros. v. Nagar Mahapalika Lucknow, 1983 AWC 29 Hon. S. C. Mathur, J. has indicated as below :- " According to the learned counsel the order ' issue notice 'does not amount to initiation of proceedings within the meaning of section 20. This brings us to the question as to what is the full import of the term ' issue notice' . The notice of a motion is not issued to the opposite party as a matter of course, it is issued only when the court comes to the conclusion after application of mind that a prima facie case has been made out against the opposite party. By issuing the notice the court calls upon the notice to show cause why the relief claimed against him in the petition may not be granted and this is all that is required for initiation of proceedings. For initiation of proceedings the court has to be satisfied after application of mind that a prima facie case has been made out in favour of the petitioner. " IN view of the rulings mentioned above, and the nature of the order passed by me on 8-4-1988 which runs as below :- " Let notice go to Km. Beena Misra, daughter of Vidyadhar Misra, resident of 1/4, Kamla Nagar Colony, Kanpur to show cause why should she not be punished for contempt. She should appear personally or through some counsel on 9-5-1988 before this court. Beena Misra, daughter of Vidyadhar Misra, resident of 1/4, Kamla Nagar Colony, Kanpur to show cause why should she not be punished for contempt. She should appear personally or through some counsel on 9-5-1988 before this court. " and the circumstance that when the case was listed before me on 21-3-1988 I granted two weeks time to the applicant to file a copy of the objection filed by the opposite party and thereafter on 8-4-1988 I passed the above order, therefore, I am not prepared to agree with the contention of the learned counsel for the contesting opposite party that the proceedings were really not initiated on that date against the contesting opposite party. According to me, the proceedings against the contesting opposite party stood initiated on 8-4-1988. As the contesting opposite party and her counsel did not appear before the court and I wanted to take action against the contesting opposite party after knowing her version, I again granted time to the contesting opposite party for filing counter affidavit through my order dated 14-12-1988 and indicated that the petition be admitted and notice be issued. Because the words ' Admit. Issue notice. ' were written in the order dated 14-12-1988, the learned counsel for the contesting opposite party has contended that in law the proceedings were initiated on that very day and not before that. The argument might be advanced on the basis of the order dated 14-12-1988 but in law if the proceedings stood initiated by the order dated 8-4-1988 the use of the words ' Admit. Issue notice. ' on 14-12-1988 would be superfluous. IN the facts and circumstances of this case, I do not agree with the contention of learned counsel for the contesting opposite party that the proceedings for contempt should be treated as initiated on 14-12-1988 which is one year after the alleged date of not honouring the under-taking given to this court. 12. There is no dispute between the parties that if the proceeding is treated to have initiated on 14-12-1988, it is beyond the prescribed period of one year under section 20 of the Act but the initiation of the proceeding in the facts and circumstances of this case, if treated through the order dated 8-4-1988, the initiation of the proceeding is well within time. After examining the rulings cited by the learned counsel for the parties, I think in the present case the proceedings for contempt against the opposite party stood initiated on 8-4-1988. The contention of the learned counsel for the opposite party that the proceeding should be treated as initiated against the opposite party only on 14-12-1988 in the facts and circumstances of this case is not acceptable to me. The opposite party and her counsel did not cooperate, therefore, a fresh opportunity was afforded to the contesting opposite party to put forward her version through the order dated 14-12-1988. Because of non-cooperation on behalf of the opposite party another order was passed on 9-2-1989 which has already been quoted in the earlier part of this judgment. In the eye of law when once the proceeding stood initiated through the order dated 8-4-1988, merely because the word ' admit ' was added before issuing notice to the opposite party would not mean that the proceedings were initiated only on that date and not prior to that in the facts and circumstances of the present case. 13. The discussions in the rulings cited by the learned counsel for the opposite party do support me in arriving at the conclusion that the proceedings for contempt against the contesting opposite party stood initiated on 8-4-1988 in view of the wordings of the order quoted on pages 3 and 11 of this judgment-See 1983 AWC 29 , 1986 AWC 1039 and 1987 UP LB EC 742, etc. 14. In the present case the operative portion of the order dismissing the appeal filed by the contesting opposite party contained in annexure (1) attached with this application indicates that the contesting opposite party was granted six months time to hand over peaceful possession of the house in question. The order indicates that it was done on the undertaking of the learned counsel for the appellant (i.e. the contesting opposite party in the present application). Thereafter time was extended several times. At one occasion Km. Beena Misra alone had appeared in my Chamber and had succeeded in getting the extension of time. IN this view of the matter, I think that the contesting opposite party has not honoured the undertaking given to this court and she has deliberately not delivered peaceful possession of the premises in question to the applicant. At one occasion Km. Beena Misra alone had appeared in my Chamber and had succeeded in getting the extension of time. IN this view of the matter, I think that the contesting opposite party has not honoured the undertaking given to this court and she has deliberately not delivered peaceful possession of the premises in question to the applicant. Therefore, she has really committed the contempt of this Court and is liable to be punished. IN the light of the discussion in Salemuddin v. Sharfuddin, AIR 1980 Delhi 39 the contesting opposite party is guilty of contempt of this court. The undertaking was given by the counsel for the contesting opposite party as is evident from the order contained in annexure ' 1 to this application. She also appeared before this Court and prayed for extension of time and succeeded in obtaining the extension of time, therefore, it can be safely inferred that she gave the undertaking for obeying the order of this Court within the time allowed. Despite the aforesaid circumstance, she has not vacated the premises in question peacefully and she is continuing in possession over the premises in question. Thus she is guilty of contempt of this court. As the contesting opposite party was a lady I was hesitating to take action against her in the facts and circumstances of the present case. Therefore, there is some ambiguity in the proceedings but in law she has committed the contempt of this court and has not honoured the undertaking by not giving peaceful possession of the premises in question to the applicant of this application. 15. Now the question arises what punishment should be awarded to the contesting opposite party for not honouring the undertaking whereby she succeeded in getting extension of time for vacating the premises in question peacefully. I have a feeling that due to circumstance that an accommodation is not easily available in the city and due to wrong legal advice for lingering the proceedings in execution, she has not delivered possession as yet. She is pursuing remedy in appeal or revision against the order in execution. However, the ends of justice would be met if the opposite party vacates the premises in question peacefully and delivers back possession to the applicant within two weeks from today, she will stand pardoned of her guilt. She is pursuing remedy in appeal or revision against the order in execution. However, the ends of justice would be met if the opposite party vacates the premises in question peacefully and delivers back possession to the applicant within two weeks from today, she will stand pardoned of her guilt. If she fails to give possession within the time allowed, she will stand fined to the tune of Rs. 2000/- which will be deposited in the court of the Chief Metropolitan Magistrate, Kanpur Nagar, forthwith. The Chief Metropolitan Magistrate, Kanpur Nagar is directed to realise the fine from the contesting opposite party strictly in accordance with law. 16. As the undertaking has been given to this court, as is evident from the application dated 16-7-1987 and affidavit in support thereof on the record of the Second Appeal, necessary warrant of possession be issued in respect of house No. 1/4, Kamla Nagar Colony, Kanpur. In case of necessity police aid may also be given to the applicant to obtain possession from the contesting opposite party if she does not give peaceful possession to the applicant within the time allowed-See AIR 1980 Delhi 39 at page 43 para 27. For the foregoing discussion, this application for contempt of this court against the contesting opposite party Km. Beena Misra d/o Sri Vidhya- dhar Misra, resident of 1/4, Kamla Nagar Colony, Kanpur is finally disposed of. All the authorities concerned and the contesting opposite party are directed to carry out the spirit of this order as indicated above. The applicant shall be entitled to a sum of Rs. 250/- as costs of this proceeding from the contesting opposite party which I accordingly award. 17. The aforesaid direction has been made with a view to close the breach of the undertaking given to this court in the light of the observation made in Mohd. Idris v. Rustam Jehangir Bapuji, AIR 1984 SC 1826 .