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Himachal Pradesh High Court · body

2000 DIGILAW 52 (HP)

PYARE LAL v. SHAM LAL

2000-03-24

KAMLESH SHARMA

body2000
JUDGMENT Ms. Kamlesh Sharma, ACJ.—On the reference received from Sub-Judge-cum-Judicial Magistrate Court No. 3, Additional Charge Court No. 2, Rohru, District Shimla, the present contempt petition has been registered and notice to show cause was issued to alleged contemner Sham Lai, who has filed reply, rejoinder to which has been filed by Pyare Lai on whose instance the reference was made. Pyare Lai and Sham Lai are real brothers. 2. Pyare Lal has filed civil suit against Sham Lal for permanent prohibitory injunction to restrain Sham Lai from executing rent deed or to manage to his exclusive benefit or to collect rent of the shops situated over Khasra No. 423 in Notified Area Committee, Rohru unless and until these are partitioned alleging that it is the joint property of both of them alongwith other legal heirs of deceased Smt. Barfi Devi, who was their mother, In the application under Order 39, Rules 1 and 2, Civil Procedure Code filed by Pyare Lal the trial Court issued injunction order restraining Sham Lai from using usufructs of the suit property exclusively to the exclusion of Pyare Lal during the pendency of the suit by order dated 21,7.1992, which was confirmed b) the District Judge on 21.5.1993 in the appeal filed by Sham Lai. In the Civil Revision (C.R. No. 143 of 1993) filed by Sham Lai, this Court passed the following order:— "17.9.1993 Present: Sh. Bhupender Gupta, Advocate, with the petitioner. Sh. G.D. Verma, Advocate, for the respondent. The petitioner is present in person whereas the respondent is not present in person. Sh. G.D, Verma, learned Counsel appearing for the respondent states that he has complete instructions to make statement in this Revision Petition that if the petitioner deposits half of the rent presently being realised by him from the tenants in a fixed deposit with some Nationalised Bank through the trial Court, the respondent will not press his application under Order 39 Rules 1 and 2 Civil Procedure Code. He further states that the petitioner may encash the Fixed Deposit Receipts so deposited if the respondent fails in his suit. If the respondent succeeds in the suit, he will be entitled to withdraw the amount of Fixed Deposit Receipts with interest. The petitioner, who is present in person, states that the offer of the respondent is acceptable to him. He further states that the petitioner may encash the Fixed Deposit Receipts so deposited if the respondent fails in his suit. If the respondent succeeds in the suit, he will be entitled to withdraw the amount of Fixed Deposit Receipts with interest. The petitioner, who is present in person, states that the offer of the respondent is acceptable to him. He is ready to manage the property in dispute, keep proper accounts thereof and deposit half of the rent amount realised by him in fixed deposit with some Nationalised Bank through the trial Court. He further states that at present there are three tenants in the premises in dispute, namely, B.S. Rana, Bashir and Sunil Footwear, who are paying rent at the rate of Rs. 800/-, Rs. 1,200/- and Rs. 600/-per month respectively. Accordingly he undertakes to deposit the amount of rent realised after every quarter at the rate of Rs. 1,300/- per month. In view of the statements of the parties, the Revision Petition is disposed of in the following terms:— (1) The petitioner will manage the property in dispute and realise the rent from the tenants during the pendency of the suit filed by the respondent pending in the Court of Sub-Judge (2), Rohru; (2) He will deposit the amount of rent realised from the tenants at the rate of Rs. 1,300/- per month after every quarter in a Fixed Deposit with some Nationalised Bank at Rohru, through the trial Court. (3) He will not induct any other tenant without the permission of the trial Court/ 3. Thereafter the suit was tried and when it was at the arguments stage, an application was moved by Pyare Lal on 28.9.1997 that Sham Lai be directed to deposit the amount of rent of premises since 1993 onwards in any Nationalised Bank alongwith interest at the rate of 12% per annum and reference of gontempt proceedings be made to this Court against him. In the application it is alleged that Sham Lai has violated the undertaking given to this Court by not depositing the rent amount and by inducting tenants over the premises in dispute, detail whereof is given in the application. Sham Lai filed reply dated 17.8.1997 to the application in which he took preliminary objection that it was not maintainable before the trial Court as the alleged disobedience is of the directions/orders of the High Court. Sham Lai filed reply dated 17.8.1997 to the application in which he took preliminary objection that it was not maintainable before the trial Court as the alleged disobedience is of the directions/orders of the High Court. Denying the allegations made in paragraph 3 it is alleged that:— ".... The respondent was and is bound to manage the property in dispute as per directions of Honble High Court, which was in deplorable and dilapidated conditions and as such had to spent much more than the rent amount for its renovation/repair work. It is pertinent to submit here that the dispute between the parties is merely about 5 shops as is evident from the second word of 3rd line of the title of the plaint as well as the body of the plaint. But in the para under reply the applicant has given the list of other persons also who are not the tenant of any shop. The Shed of "Roshan Radio Service" had been given by the mother of the plaintiff and defendant to the only daughter of the respondent who is married and has been collecting the rents since long ago i.e. since the life time of the mother of the parties to the suit till today of the said shop. The respondent has not inducted any new tenants in the five disputed shops, all of them are old tenants. Two tenants (1. Shri Mohan Singh of village Ketsari and 2. Sangam Music Centre) are not paying the rent to the replying respondent. Rate of rent amount of the tenants of the shops has been wrongly written in the para under reply." 4. By order dated 10.11.1997 the trial Court at the request of Pyare Lal appointed Shri Dinesh Tegra, Advocate as Local Commissioner to inspect the spot and to give a detailed report that how many tenants had been inducted by Sham Lai, since when and how much rent was charged by him from them, to which the learned Counsel for Sham Lai had no objection. The Local Commissioner gave his report which was supplemented by the statement prepared by him giving details as required from him. Ultimately, by detailed order dated 4.6.1998 the trial Court allowed the application and referred the matter to the High Court. It is observed in the order:— ".... The Local Commissioner gave his report which was supplemented by the statement prepared by him giving details as required from him. Ultimately, by detailed order dated 4.6.1998 the trial Court allowed the application and referred the matter to the High Court. It is observed in the order:— ".... The respondent failed to produce any receipt for depositing the rent realised from the tenants with Nationalised Bank at Rohru. When, I ask about the same, from the learned Counsel that the undertaking given by the respondent in Honble High Court of Himachal Pradesh are not being interpreted in right manner. He has submitted that since, the respondent is looking after and maintaining the building, therefore, the entire amount received by him is spent on renovation and repair work........................... He has further stated on oath that he has no objection in case the application moved by the applicant is referred to the Honble High Court of Himachal Pradesh, Shimla-1, alongwith his reply. The statement of respondent/defendant was recorded. Since, the respondent himself has pleaded no objection to send the application of the applicant to Honble High Court of Himachal Pradesh, therefore, the application under Section 151 Civil Procedure Code of the applicant is allowed and the same is hereby referred to the Honble High Court of Himachal Pradesh, Shimla-1 alongwith reply and the records of this case through Special Messenger for further necessary orders." 5. The trial Court has forwarded the application and the reply alongwith the record of the Civil Suit to this Court for consideration and necessary orders. This is how the reference has been received on the basis of which the present contempt petition has been registered. 6. Sham Lai in his reply to the contempt petition has taken preliminary objection that it is not maintainable as the notice received by him was not accompanying the copy of the reference on the basis of which notice was issued to him and also for non-compliance of the contempt Rules as framed by this Court and that the contempt petition is time barred in view of Section 20 of Contempt of Courts Act, 1971 (hereinafter called the Act). On merits, it is submitted that the reference made by the trial Court is without jurisdiction and no action can be initiated on the basis of the reference made by it. On merits, it is submitted that the reference made by the trial Court is without jurisdiction and no action can be initiated on the basis of the reference made by it. Neither proper petition was filed by Pyare Lal nor proper enquiry was conducted by the Sub-Judge before making the reference assuming such facts, which are not substantiated on the record, as such, these proceedings are not properly constituted to take action against Sham Lai. It is also averred that no undertaking was given by Sham Lai to this Court and true import of order dated 17.9.1993 passed in Civil Revision No. 143 of 1993 has not been considered by the trial Court before making the reference. Sham Lai has maintained that there is no wilful disobedience of the-order dated 17.9.1993 of this Court and had proper opportunity been afforded to him, he would have brought on record the facts to show that he has complied with the said order. Without giving opportunity to cross-examine the Local Commissioner, his report has been relied upon by the trial Court to come to the conclusion that Sham Lai has disobeyed the undertaking by inducting new tenants. In the end it is stated by Sham Lai that if for any reason this Court comes to the conclusion that there is any alleged violation of the order of this Court, he tenders unqualified apology and requests for dropping the present proceedings. Hence, Sham Lai has assailed the order dated 4.6.1998 passed by the trial Court making reference to this Court. 7. In the counter affidavit filed by Pyare Lal the preliminary objections are denied that the reference is not maintainable and the contempt proceedings are barred by limitation. It is alleged that the breach of the undertaking is continuing because Sham Lal was required to deposit rent at the rate of Rs. 1,300/- per month on quarterly basis, which he has failed to do despite opportunities given to him, hence he is guilty of committing breach of the said undertaking with impunity. Even now, in reply to show cause notice he has not been able to show that he has complied with the undertaking given to this Court on 17.9.1993. According to Pyare Lal the apology tendered by Sham Lai is not genuine and bona fide as he has refused to comply with the order dated 17.9.1993, which was passed by accepting his undertaking. According to Pyare Lal the apology tendered by Sham Lai is not genuine and bona fide as he has refused to comply with the order dated 17.9.1993, which was passed by accepting his undertaking. 8. This Court has heard learned Counsel for the parties and gone through the record. First preliminary objection raised by the learned Counsel for Sham Lai is that the notice of the present petition issued to Sham Lal is not in accordance with Rule 6(ii) of the Contempt of Court (Himachal Pradesh) Rules, 1996 (hereinafter called the Rules). It is:— "Every notice to be issued to a person charged shall be in the form appended to these rules and shall be accompanied by a copy of the motion, petition or reference, as the case may be, together with copies of affidavits, if any. The notice shall be signed and dated by the Registrar and shall be issued under the seal of the High Court." 9. From the perusal of the record it appears that the notice served upon Sham Lal is though in Form No. 1 appended to the Rules but instead of Registrar it was signed by the Deputy Registrar and was not accompanied by a copy of the motion, petition or reference together with the copy of the affidavit, if any. It may be clarified that though the present petition was registered on the reference received from the trial Court but the alleged civil contempt not being the contempt of the trial Court but of this Court, it does not exactly fall in the category of civil contempt of a subordinate Court on a reference made to the High Court by that Court as envisaged under Rule 9(c) of the Rules. In the background in which the present contempt petition is registered, it can fall in the category of a petition presented by a party aggrieved through the trial Court in which the civil suit is pending, out of which Civil Revision No. 143 of 1993 had arisen in which the order dated 17.9.1993 was passed, the wilful disobedience whereof and the breach of undertaking given therein is complained of by Pyare Lal. This is another matter whether the trial Court before forwarding the said complaint could held inquiry it has held. 10. This is another matter whether the trial Court before forwarding the said complaint could held inquiry it has held. 10. So far the objection that notice was not signed by the Registrar is concerned, it is not sustainable in view of notification dated 30.9.1997 whereby Rule 2(e) of the Rules has been amended and Deputy Registrar (Judicial) has been included in the definition of the Registrar. It is correct that alongwith the notice served upon Sham Lai through Process Serving Agency copy of the petition or the alleged reference order was not sent but it is of no effect as the copy of the petition was already supplied to him, to which he had also filed his reply which was considered by the trial Court while passing order dated 4.6.1998 whereby the matter was referred to this Court. The perusal of this order clearly shows that Sham Lai had given statement on oath that he had no objection in case the application moved by Pyare Lal is referred to the High Court alongwith his reply. Keeping in view this statement of no objection on behalf of Sham Lai, the trial Court had forwarded the matter to this Court. Otherwise also Rule 6 of the Rules is a rule of procedure, non-compliance of which cannot render the petition as not maintainable if no prejudice whatsoever is caused to the party concerned. 11. Since in the background of this case the present petition is considered as a petition presented by the party aggrieved received through the trial Court, this Court need not deal with the objections raised on behalf of Sham Lai in respect of the inquiry held by the trial Court as the proceedings conducted by the trial Court and the observations made by it on merits in its orders are not being taken into consideration for the decision of this Court which will be based on the petition of Pyare Lal, reply thereto of Sham Lai besides his reply to the present contempt petition. 12. 12. Another preliminary objection raised by learned Counsel for Sham Lai is that the complaint of Pyare Lal that order dated 17.9.1993 is wilfully disobeyed or the undertaking given by Sham Lal is breached was filed before the trial Court on 5.9.1997 and received in this Court on 17.6.1998 and notice to parties was issued on 30.7.1998 beyond the period of one year, as provided under Section 20 of the Act. Section 20 is:— "20. Limitation for actions for contempt.—No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.” The perusal of this Section shows that it lays down a condition precedent to the exercise of Courts power under the Act and does not lay down period of limitation. So far the initiation of proceedings is concerned, it has been interpreted as application of mind by the Court to the complaint for taking decision to issue notice to the alleged contemner. So far the case in hand is concerned, if it is treated as a case falling in the category of a petition presented by the party aggrieved received through the trial Court, admittedly the proceedings were initiated by this Court on 13.7.1998 when notice was issued to Sham Lai. 13. Now the question arises when the period of one year had started or in other words, what is the date on which the contempt is alleged to have been committed? From the perusal of the order dated 17.9,1993 it is clear that after accepting the proposal, which was made on behalf of Pyare Lal by his learned Counsel as mentioned therein, Sham Lal had undertaken to deposit the amount of rent realised after every quarter at the rate of Rs. 1,300/- per month. On the basis of statement of the parties this Court issued directions (1) to (3) as mentioned in the order dated 17.9.1993. As per direction No. 2 he was to deposit Rs. 1,300/- per month after every quarter in fixed deposit with some Nationalised Bank at Rohru and as per direction No. 3 he would not induct any other tenant except three tenants referred to in the earlier part of the order without the permission of the trial Court. As per direction No. 2 he was to deposit Rs. 1,300/- per month after every quarter in fixed deposit with some Nationalised Bank at Rohru and as per direction No. 3 he would not induct any other tenant except three tenants referred to in the earlier part of the order without the permission of the trial Court. So far third direction is concerned, though there is no conclusive material on record of its disobedience but in respect of second direction there can be no dispute that Sham Lal has not deposited any amount though he has been realising the rent from the tenants. The consistent stand of Sham Lal is that he is managing the suit property which was "in a deplorable and dilapidated condition", as such he had to spend much more than the rent amount for its renovation/repair work. The condition of the premises in dispute was known to, Sham Lai and he should have pointed it out and requested that he would be able to deposit the rent after deducting cost of repairs etc. when he had undertaken to deposit the amount of Rs. 1,300/- per month, on the basis of which order dated 13.9.1993 was passed. Having failed to point out at the time of passing of order dated 17.9.1993 he could point it out at some later date but he kept quiet with impunity and has come forward with this plea that too without giving any details of repairs etc. only in reply to the complaint filed by Pyare Lal. These facts and the conduct of Sham Lai during the pendency of the present petition leaves no duobt that while agreeing to the proposal of learned Counsel for Pyare Lal and giving undertaking that he would deposit rent amount of Rs. 1,300/- per month he had no intention to abide by the undertaking or to obey the directions issued by the Court on the basis of said undertaking which clearly establishes that the breach of the undertaking and disobedience of direction No. 2 issued by this Court by order dated 17.9.1993 is deliberate, intentional and wilful. 14. 1,300/- per month he had no intention to abide by the undertaking or to obey the directions issued by the Court on the basis of said undertaking which clearly establishes that the breach of the undertaking and disobedience of direction No. 2 issued by this Court by order dated 17.9.1993 is deliberate, intentional and wilful. 14. It may be pointed out that keeping in view the fact that the parties are real brothers and the dispute pertains to their ancestral property, a suggestion was made to them to arrive at an amicable settlement, which would only be possible had Sham Lal agreed to deposit the rent as undertaken by him and directed by this Court but he did not relent from his stand that by not depositing the amount of rent as undertaken by him and directed by this Court no wilful disobedience has been committed by him. In view of the nature of undertaking and direction No. 2 that rent amount as specified is required to be deposited after every quarter, the wilful disobedience is continuous and can be said to be repeatedly committed on the completion of every quarter. Therefore, atleast the wilful disobedience committed at the end of each quarter during the period of one year before 31.7.1998, when the proceedings were initiated, is definitely within limitation for which action can be taken against Sham Lal. 15. Learned Counsel for Sham Lal has relied upon the judgments in Dineshbhai A. Parikh v. Kripula Co-operative Housing Society Nagarvel, Ahmedabad and others, AIR 1980 Gujarat 194; Anant Ram v. Murari Lal, 1989 S.L.J. 163; Bank of India v. Smt. Nirmala Devi and others, 1997 (1) Sim. L.C. 304 and Kishan Singh v. Honourable Mr. T. Anjaiah, Chief Minister and others, 1985 Cri L.J. 1428, which need not be referred to as the view taken by this Court is not attracted to the law laid down in these judgments in respect of the interpretation of Section 20 of the Act and the application thereof was in the context of the facts of each case. Learned Counsel for Sham Lal has further relied upon the judgments in Babu Ram Gupta v. Sudhir Bhasin and another, AIR 1979 SC 1528 and B. Himmat Sinoka and another v. M/s. Kuldip Industrial Corporation and others, 1981 Cri. Learned Counsel for Sham Lal has further relied upon the judgments in Babu Ram Gupta v. Sudhir Bhasin and another, AIR 1979 SC 1528 and B. Himmat Sinoka and another v. M/s. Kuldip Industrial Corporation and others, 1981 Cri. L.J. 1414, to urge that the order dated 17.9.1993 was consent order which was not passed by accepting the undertaking given by Sham Lal, as such, either disobedience of the order or breath of the said undertaking does not amount to contempt. The proposition of law laid down in these judgments cannot be disputed but the question arises whether order dated 17.9.1993 is a consent order and it was passed without accepting the undertaking given by Sham Lal. The answer to this querry is in negative. It is very clear that having suffered injunction order Sham Lai has filed Civil Revision No. 143 of 1993 and had he not accepted the proposal made by learned Counsel for Pyare Lal and given undertaking to deposit the amount of rent after every quarter at the rate of Rs. 1,300/- per month this Court would not have issued direction No. 2, which has been wilfully disobeyed as held hereinabove. Instead of stating that undertaking given by Sham Lai is accepted this Court has specifically mentioned that in view of the statements of parties the revision petition is disposed of on the conditions including condition No. 2 that he will deposit the amount of rent at the rate of Rs. 1,300/- per month after every quarter in a fixed deposit with some Nationalised Bank at Rohru, through the trial Court. This order cannot be termed as a consent order and was passed on the representation made by Sham Lal. 16. Another point raised by learned Counsel for Sham Lai is that since the revision petition No. 143 of 1993 in which order dated 17.9.1993 was passed had arisen out of the orders passed by the Courts below under Order 39 Rules 1 and 2 C.P.C., the alternative efficacious remedy to deal with the disobedience of the said order is available under Order 39 Rule 2-A CPC and this Court should not exercise jurisdiction under the Act. In the background of this case, it deserves to be dealt with under the provisions of the Act instead of under Order 39 Rule 2-A C.P.C. and the submission made by the learned Counsel is rejected. 17. In the background of this case, it deserves to be dealt with under the provisions of the Act instead of under Order 39 Rule 2-A C.P.C. and the submission made by the learned Counsel is rejected. 17. Now this court would refer to some of the judgments of the Supreme Court which lay down guidelines for punishing the contemner in a civil contempt on his wilful disobedience of the order or direction or on his failure to honour the undertaking given to the Court. In Smt Pushpaben and another v. Narandas V. Badiani and another, (1979) 2 SCC 394, the learned Judges have held that under Section 12 (3) of the Act normally the sentence that should be given to an offender who is found guilty of civil contempt, is fine and not imprisonment, which should be given only where the Court is satisfied that ends of justice require the imposition of such a sentence. Before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule. 18. In The Advocate General, State of Biharv. M/s. Madhya Pradesh Khair Industries and another, AIR 1980 SC 946, The Learned Judges of the Supreme Court considering the conduct of the contemners so reprehensible as to warrant condemnation, imposed the sentence despite unconditional apology by the contemners to the High Court. In another judgment of the Supreme Court in Rita Markandey v. Surjit Singh Arora, AIR 1997 SC 2174, a fine of Rs. 2,000/- was imposed on the contemner by rejecting the unconditional apology declaring it not genuine and bonafide on the ground that the statement made earlier at the time of similar unconditional apology that the contemner had vacated the suit premises, was found false. However, sentence of imprisonment was not imposed considering the fact that the contemner was arrested and remained in custody for some days in pursuance of the non-bailable warrants issued by the Supreme Court. In Virendra Nath Soral v. Sajjan Kumar Jain, 1996 CrL L.J. 2564, the learned Single Judge of the Rajasthan High Court sentenced the contemner to undergo simple imprisonment for six months and a fine of Rs. In Virendra Nath Soral v. Sajjan Kumar Jain, 1996 CrL L.J. 2564, the learned Single Judge of the Rajasthan High Court sentenced the contemner to undergo simple imprisonment for six months and a fine of Rs. 2,000/- for committing breach of undertaking by holding it a serious matter, 19. Coming to the case in hand, in view of the consistent stand taken by Sham Lal that he has not committed breach of undertaking, the unconditional apology tendered by him is not genuine and bona fide. Sham Lai has also not come forward to purge himself from the contempt by making an offer to comply with the undertaking by depositing the balance amount of rent after deducting the amount, if any, spent by him for the repairs of the property in question as per his defence during the course of proceedings or amicable settlement, keeping in view the fact that the complainant and the contemner are real brothers, to show his bona fide that he had no intention not to abide by the undertaking and disobey the directions passed by this Court by accepting the said undertaking. 20. In this background the sentence of imprisonment is also called for and only sentence of fine will not serve the ends of justice. Therefore, sentence of simple imprisonment of one month and a fine of Rs. 1,000/- is imposed upon Sham Lai. In the event of his failure to deposit the fine within a period of four weeks, he will undergo further simple imprisonment for one month. Appeal dismissed.