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2002 DIGILAW 223 (JK)

M. S. Tulla v. Mohd. Amin Bandy

2002-07-25

R.C.GANDHI

body2002
1. This civil Revision has been directed against order dated 12th November, 2001 passed by the trial court in contempt proceedings initiated to seek implementation of order dated 9th October, 1997 passed under 0.31 Rules 1 and 2 CPC. It is submitted at the Bar that the order dated 9th October, 1997 was challenged in appeal which was dismissed. It was further challenged by means of a Revision Petition which also came to be dismissed. The order dated 9th October, 1997, therefore, has attained finality. 2. In the proceedings seeking implementation of the order, the trial court passed order dated 12th February, 2001, directing the contemnor to learned evidence. The respondent filed an application before the trial court on 3rd March, 2001 for classification of order dated 12th Feb., 2001 on the ground that the order dated 9th June, 1999 passed by the trial court has been maintained by the High Court dimissing the Revision petition on 27th November, 2000 preferred by the petitioner against the said order. 3. Heard learned counsel for the parties and the record. 4. The pleadings of the parties referred in the course of the order by the trial court have not been disputed. The trial court passed order dated 9th June, 1999 in the following terms: "The counsel of the parties present. Ld. counsel of the applicants has argued the matter at length. He has placed on record photostat copies of certain orders in order to prove that Mr. Tulla contemnor has implemented court orders in similar matters in order to show that Mr. Tulla had power to implement the court order and which he has not. He has also submitted certain authorities in support of his arguments. The Id counsel of the contemnors have also argued the matter at length. However, during the course of arguments the Id. counsel of the contemnor has submitted that he be provided an opportunity to lead evidence in order to prove his innocence in the matter. In the interim order which has been passed by this court on 16.4.1999 it was held that contemnor need to be heard on the point whether their personal properties can be attached and whether the contemnor No.1 Mr. Tulla can be lodged in Civil Prison in the absence of his any personal property in the valley. In the interim order which has been passed by this court on 16.4.1999 it was held that contemnor need to be heard on the point whether their personal properties can be attached and whether the contemnor No.1 Mr. Tulla can be lodged in Civil Prison in the absence of his any personal property in the valley. So far as the contempt petition is concerned it has been already decided and the contemnors had preferred appeal against this order. The appellate court while setting aside the attachment order with the regard to the properties of Centaur Hotel while reversing the court order held that personal properties of the contemnor be attached and in the absence of personal properties of contemnor No. 1 the latter be lodged in the Civil Prison. From perusal of the order passed by the appellate court it is reproduced as under Net result is that appeal succeeds to the extent that court below shall instead of attaching the property of the Hotel Centaur proceed to take action against the person of Mr. Tulla who is the General Manager and who assured the court regarding the implementation of the order impugned. So it has already been held that the contemnors are liable for the contempt of the court under Order 39 rule 2 (a). So this is not the stage where the contemnors are to be allowed to lead evidence. In that sense it will be re-opening of the case a fresh and that cannot be allowed at this stage. However, the Id. counsel of the contemnors is granted another opportunity to argue the case and in support of the arguments he can produce documentary evidence if any in support of his arguments. Put up on 24.6.1999. This order was challenged by means of Revision Petition before this court which came to be dismissed on 27th November, 2002 with the following observations: "Mr. A.H. Kakro for petitioner. Mr. Z.A. Qureshi for respondents. Heard Record examined. The impugned order does not appear to suffer from any error of jurisdiction, legal infirmity or irregularity. Revision petition cannot succeed. While dismissing the revision petition, needless to say that the court below shall afford parties adequate opportunities to place their case and evidence before the court in accordance with law. Disposed of. Inform the court below of this order and send back the record. Interim directions, if any, shall stand vacated. Revision petition cannot succeed. While dismissing the revision petition, needless to say that the court below shall afford parties adequate opportunities to place their case and evidence before the court in accordance with law. Disposed of. Inform the court below of this order and send back the record. Interim directions, if any, shall stand vacated. Parties are directed to appear before the court of 2nd Sub-Judge, Passenger Tax, Srinagar." This trial court passed the order dated 12th February, 2001 directing the contemnor to lead evidence which runs counter to order dated 9th June, 1999 of the trial court, up-held by the High Court in Revision Petition. The trial court, while clarifying the order, allowed the application of the respondent and directed the contemnor argue the case and also to produce documents in support of the arguments. The order of the trial court is in consonance with order dated 9th June, 1999. 5. The Learned counsel for the petitioner has also drawn attention of the court to interim order dated 23rd December, 1998 whereby the trial court has directed that the General Manager, being not a party, his statement was recorded, therefore, the statement of the General Manager shall now be recorded afresh. The learned counsel seeking support from this order also stated that the statement of General Manager is yet to be recorded. It is admitted by him at the Bar that this plea was taken as a ground in the Civil Revision also and could not find favour with the court while dismissing the Civil Revision on 27th November, 2002. A plea already urged before the court cannot be re-agitated at a subsequent stage of the same proceedings. It operates as resjudicata between the same parties. This plea, therefore, is not available to the petitioner in these subsequent proceedings, operating as rejudicata against him. 6. Learned counsel for the petitioner has cited the following judgments at the Bar in support of his plea: AIR 1935 Lah 161 AIR 1915 Lah 100 AIR 1938 Nag FB 122 AIR 1998 All 228 AIR 2000 Bombay 78 AIR 1941 All 140 AIR 1998 J&K73. I have gone through these judgments and find them not relevant on the point in issue. 7. For the aforesaid reasons, I do not find any error of jurisdiction, illegality or impropriety committed by the trial court in the order under revision. I have gone through these judgments and find them not relevant on the point in issue. 7. For the aforesaid reasons, I do not find any error of jurisdiction, illegality or impropriety committed by the trial court in the order under revision. No case for interference is made out. This Revision Petition is dismissed.