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2007 DIGILAW 345 (ALL)

RITA YATI v. MURARI GIRI

2007-02-14

A.P.SAHI

body2007
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned Counsel for the applicant Sri S.M.A. Abidi assisted by Sri R.C. Tewari and Sri P.R. Maurya for opposite party Nos. 1 and 2. 2. The following charge was framed by this Court on 12.1.2007 : “That you, Murari Giri and Mukund Giri sons of Nirankari Giri are hereby called upon to answer the charge as to why have you proceeded to alienate the property in dispute in teeth of the injunction granted by the final judgment dated 21.7.2005 about which you have full and complete knowledge as per the facts narrated herein above and, proceeded to violate the direction of this Court and therefore, why you should not be punished for having wilfully and deliberately committed the contempt of the judgment dated 21.7.2005.” 3. The opposite party Nos. 1 and 2 preferred an appeal being Contempt Appeal No. 2 of 2007 against the aforesaid order of framing of charges. The appeal was dismissed as withdrawn on 6.2.2007 with liberty to the opposite parties to contest the charge. Sri P.R. Maurya was provided an opportunity and he has filed an affidavit today on behalf of the opposite parties and has advanced his submissions in defence. The defence put forth to the charge is that the opposite party Nos. 1 and 2 were not aware of the order dated 21.7.2005 and they are not parties therein therefore, there is no wilful and deliberate disobedience on their part in having executed the sale deed on 3.8.2006. 4. From a perusal of the facts that have been brought on record, it is evident that Surya Narain was the owner of the property and was the recorded tenure holder. After his death he was survived by his widow Smt. Chandrawati. The applicants on the strength of certain deeds moved an application for mutation of the property in their names after the death of Surya Narain which application was allowed on 20.8.2003. Smt. Chandrawati moved an application for recall of the said order which is undisputedly pending till date. In the interregnum period a stay order was passed by the Tahsildar himself on 22.11.2003 which was recalled by the Tahsildar on 17.1.2004 against which a revision petition was preferred by Smt. Chandrawati which was dismissed on 8.6.2005, whereupon a Writ Petition No. 50313 of 2005 was filed in the name of Chandrawati before this Court. In the interregnum period a stay order was passed by the Tahsildar himself on 22.11.2003 which was recalled by the Tahsildar on 17.1.2004 against which a revision petition was preferred by Smt. Chandrawati which was dismissed on 8.6.2005, whereupon a Writ Petition No. 50313 of 2005 was filed in the name of Chandrawati before this Court. It is to be noted that the affidavit in support of the said writ petition was sworn by no one else than Nirankari Giri father of the opposite party Nos. 1 and 2. The said writ petition was finally disposed of on 21.7.2005. Smt. Chandrawati had already died by the said time on 14.7.2005 which information was not tendered before this Court. It is undisputed that Nirankar Giri alongwith his sons was living with Chandrawati. Nirankari Giri was pursuing the writ petition as also the entire litigation in this regard after the death of Chandrawati on 14.7.2005. After the order was passed on 21.7.2005, the opposite party Nos. 1 and 2 are stated to have moved an application on 16.9.2005 for the mutation of their names as they claimed succession by way of registered will. This mutation application was objected to by the applicants on the ground that their names have already been mutated by the order dated 20.8.2003 and therefore the application deserves to be rejected. 5. Another application dated 19.9.06 was filed by the applicants objecting to the maintainability of the mutation application. This objection was replied to by the opposite party Nos. 1 and 2 by an objection which is stated to have filed on 26.9.2006. In this objection it is stated by the opposite parties themselves that the name of Chandrawati should be maintained in the revenue records as there is a stay order passed by the High Court on 21.7.2005. This application is not denied by the opposite parties. The facts stated therein therefore can be safely be presumed to be in the knowledge of the opposite parties. The opposite parties, therefore had full and complete knowledge of the order dated 21.7.2005 by which there was a clear injunction with regard to the transfer of the property. Inspite of this the opposite party Nos. 1 and 2 transferred the property by way of sale deed on 3.8.2006. 6. The knowledge of the order dated 21.7.2005 to the opposite party Nos. Inspite of this the opposite party Nos. 1 and 2 transferred the property by way of sale deed on 3.8.2006. 6. The knowledge of the order dated 21.7.2005 to the opposite party Nos. 1 and 2 therefore stands established from the recital contained in Annexure 2 to the rejoinder affidavit. The said document has been referred to in the order dated 8.1.2007 passed by the Tehsildar which is also on record. Apart from this, while filing their objections (Annexure 2 to the R.A.) the opposite party Nos. 1 and 2 have surreptitiously withheld the information of the execution of the sale deed which was already executed on 3.8.2006, from the Tehsildar. 7. The aforesaid act of the opposite party Nos. 1 and 2 therefore not only amounts to a wilful disobedience of the order dated 21.7.2005 but it was a clear act of perjury on their part to have misled the Tahsildar through their objection dated 26.9.2006. The affidavit which has been sworn in support of the application in Special Appeal moved by the opposite party Nos. 1 and 2 reiterates the aforesaid position and therefore even the Special Appellate Bench was not informed about the correct facts, and rather facts were deliberately misrepresented by the opposite party Nos. 1 and 2. The filing of a false affidavit by the opposite parties in the Special Appeal referred to herein above is an offence of criminal contempt as held by the apex Court. 8. The matter has also been examined by me on the question of sentence. The opposite party Nos. 1 and 2 have not exhibited any sign of remorse throughout the proceedings and have attempted to defend the charge. The opposite parties have taken no step which would in any way amount to purging of the contempt. The clear and deliberate intent of opposite party Nos. 1 and 2 was to somehow the other create further litigation and complicate the matter deliberately in order to obstruct the free flow of the course of justice. 9. Accordingly, this Court holds the opposite party Nos. 1 and 2 guilty of contempt for having wilfully and deliberately flouted the judgment dated 21.7.05 and in view of the facts stated herein above awards them the maximum punishment of six months simple imprisonment with a fine of Rs. 1,000/-. In case of default they shall undergo imprisonment of 15 days in addition thereto. 1 and 2 guilty of contempt for having wilfully and deliberately flouted the judgment dated 21.7.05 and in view of the facts stated herein above awards them the maximum punishment of six months simple imprisonment with a fine of Rs. 1,000/-. In case of default they shall undergo imprisonment of 15 days in addition thereto. The opposite parties are present in Court. They shall be taken into custody forthwith to serve out the sentence. 10. The opposite party Nos. 1 and 2 have been taken into custody by the Sub Inspector Ashok Kumar Yadav in Court in the presence of the Court Officer Farman Raza. 11. An oral prayer was made by Sri P.R. Maurya for suspending the sentence in order to enable the opposite party Nos. 1 and 2 to file an appeal. 12. The narration of the entire facts indicates that the opposite parties do not deserve any sympathy for the aforesaid act and therefore, the prayer for suspending the sentence is rejected. 13. The apex Court in the case of State of Orissa v. Ashwani Kumar, 2006 SCCL.COM 546, decided on 8.8.2006, has held as follows : “The learned Counsel, however, may be correct in contending that while exercising its contempt jurisdiction, the High Court may in a given case, issue appropriate discretion, although no penal action is taken against the contemnors. But, even in respect thereof, a finding would be required to be arrived at to the effect that the contemnors have disobeyed the order of the Court. Only when such a finding is arrived at, the Court may in exercise of its inherent jurisdiction put the parties to the same position as if its order was not violated.” 14. In view of the aforesaid position of law as declared by the Apex Court I hereby direct the Tehsildar, Machlishahr to put this order on record and pass necessary orders accordingly and further intimate the same to the Sub Registrar concerned before whom the sale deeds were executed on 3.8.2006 for taking appropriate action. ————