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2007 DIGILAW 357 (GUJ)

DEVANSHI ENTERPRISE v. NATRAJ CINEMA

2007-06-14

A.L.DAVE, SHARAD D.DAVE

body2007
A. L. DAVE, J. ( 1 ) THIS is an application preferred by the applicant alleging the contempt of Court and making the following prayers. a) Yours Lordships may be pleased to admit this application; b) To hold opponents, their servants, agents, contractors, and any such persons having willfully disobeyed the orders of the Hon ble Court produced at Annexure a , B/1, B/2 and D, and to punish them for the same. c) To attach the property being Natraj Cinema, Ashram Road, Ahmedabad and to put the same in auction and to pay compensation to this applicant from the amount so realized. ( 2 ) WE have heard learned advocate Mr. Y. F. Mehta for the applicant and Mr. M. G. Nagarkar for opponent No. 1, Mr. Vimal Patel for opponent No. 2, Mr. V. M. Trivedi for opponent No. 3. 1 and Mr. R. A. Mishra with Mr. Manoj Popat for opponent No. 4-4/2. It is clear from the prayer clause (b) that the applicant alleges willful disobedience of the orders at Annexures a b-1 , b-2 and D. Out of these orders, orders at Annexure b-1 , b-2 and d are in respect of the injunction granted by the Court. It is clear from the averments made in the application particularly in paras 3 and 4 that in pursuance of the alleged breach of injunction, the action under Order XXXIX Rule 2 of the Civil Procedure Code has already been initiated by the applicant and is pending before the competent Court. ( 3 ) SO far as the order at Annexure a is concerned, it is a decree passed against present opponent nos. 1 and 2 and rest of the opponents were not party to the said decree. It is not the case of the applicant that opponent No. 1 and/or 2 demolished the property independently. What is sought to be canvassed is that the opponent acting collusively have tried to set at naught and flouted the same by entering into various transactions clandestine in nature. It is not the case of the applicant that opponent No. 1 and/or 2 demolished the property independently. What is sought to be canvassed is that the opponent acting collusively have tried to set at naught and flouted the same by entering into various transactions clandestine in nature. ( 4 ) OFF-SHOT of what is contended before us by the learned advocate for the applicant and the application is that the applicant in this application prays for attachment of the property being Natraj Cinema, Ashram Road, Ahmedabad (which according to the applicant has already been demolished) and has also prayed for putting the same to auction and further prayed for paying compensation to the applicant from the amount realized. In Lalith Mathur v. L. Maheswara Rao, a view was taken by the Apex Court that while exercising the contempt jurisdiction, substantive relief cannot be granted. In that case, direction was given by the High Court to absorb the application in a suitable post while acting in the contempt jurisdiction. In the instant case, it is expected that this Court should attach the property, auction the same and pay the compensation. These are the reliefs substantive in nature and cannot be granted by the contempt Court. ( 5 ) SO far as the order violating or committing breach of which are at Annexure b-1 , b-2 and d are concerned, the applicant has already resorted to the remedy available under the Civil Procedure Code and the same is pending. ( 6 ) SO far as the breach of the decree at Annexure a is concerned, it is not in dispute that the decree was not against opponent No. 3 or 4. It was passed against opponent nos. 1 and 2 and it is not emerged from the applicant s case that opponent nos. 1 and 2 have demolished the property in question. ( 7 ) APART from the above aspect, several disputed questions of fact would arise if this application is to be entertained. The first and foremost question would be as to who demolished the property in question. It would be appropriate to record at this stage that complaint has already been lodged by the applicant s watchman in respect of this very incident which is being investigated by the CID, Crime, Ahmedabad and report is yet awaited. The first and foremost question would be as to who demolished the property in question. It would be appropriate to record at this stage that complaint has already been lodged by the applicant s watchman in respect of this very incident which is being investigated by the CID, Crime, Ahmedabad and report is yet awaited. It appears that Natraj Cinema was partnership firm who had taken the land in question on lease from the original owner of the land and had put up super-structure in the name of Natraj Cinema, the part of which was taken on lease by the applicant. It also appears that opponent nos. 1 and 2 have surrendered their lease to the original landlord and, thereafter, the original landlord appears to have sold the property to opponent nos. 3 and 4. The original owner of the land is not party to any of the litigation uptil now. It also appears that opponent No. 3 has purchased the front portion of the land in question whereas opponent No. 4 has purchased the rear portion of the land in question and the portion which was taken on lease by the applicant did not fall in the rear portion of the land in question. It is a question to be investigated as to who in fact has demolished the property and when the applicant is not coming out with any specific and clear allegation against anyone, this Court while exercising the contempt jurisdiction will not be able to go into that inquiry. ( 8 ) THE decree at Annexure a , the breach of which is alleged to have been committed, has never been sought to be executed by the applicants. In this regard, the decision in the case of R. N. Dey and Ors. v. Bhagyabati Pramanik and Ors. may be referred where the Apex Court took a view that a decree holder who take no steps towards executing the decree should not be encouraged to invoke contempt jurisdiction. This Court in Mansuri Valibhai Jamalbhai v. Noorbhai Jetharbhai and Ors. reported in 1984 GLH (UJ) 87 taken a view that contempt petition does not merit entertain where there is highly disputed questions of facts are involved. This Court in Mansuri Valibhai Jamalbhai v. Noorbhai Jetharbhai and Ors. reported in 1984 GLH (UJ) 87 taken a view that contempt petition does not merit entertain where there is highly disputed questions of facts are involved. ( 9 ) IN light of the foregoing factual scenario and settled propositions of law, we are of the view that this application cannot be entertained for grant of reliefs that are sought by the applicant. The application, therefore, must fail. Stands rejected. Notice is discharged. No costs.