Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 143 (BOM)

Rupali Shah v. Munesh Ralhan @ Ricky Ralhan

2009-02-02

S.J.KATHAWALLA

body2009
Judgment : Oral Judgment: The directions to issue this show cause notice was given by this Court [Coram:- S.U. Kamdar, J.] in paragraph 26 of the order dated 27th October 2005 which reads as under:- "26. Issue notice to the plaintiff to show cause why action should not be taken for contempt of Court under the provisions of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India and for the breach of order of status-quo dated 10th May 1999 in notice of motion no.1455/1999 for reasons set out hereinabove." 2. Pursuant to the said order dated 27th October 2005, a show cause notice dated 18th September 2008 is issued, after three years to the plaintiffs Rupali Shah and her husband Pradeep S. Shah, calling upon them to show cause as to why action should not be taken against them under the Contempt of Courts Act, 1971 for having committed contempt of court’s order dated 10th May 1999 passed in notice of motion no.1455/1999 in suit no.2606/1999. 3. The alleged breach committed by the plaintiffs is of the order dated 10th May 1999 passed in notice of motion no.1455/1999 in suit no.2606/1999 by the Hon’ble Division Bench of this Court. By the said order, amongst others, the Court Receiver was appointed as Commissioner to take an inventory of all the properties left by the deceased O.P.Ralhan including a flat in the building known as Bhagwan Nivas premises, situated at Khar. Pursuant to the said order admittedly the Court Receiver had prepared an inventory of the belongings, which were in the said flat. Clause 5 of paragraph 4 of the said order is reproduced hereunder:- "5. Over and above what is stated above, all the parties will maintain complete status-quo in respect of the properties which are in their respective possession, control and custody. This implies that no third party right whatsoever of any nature will be created in the premises in any manner by the parties." The plaintiffs are the daughter and son-in-law of the deceased O.P.Ralhan. The defendants to the suit are the wife and son respectively of the deceased O.P. Ralhan, and therefore, the mother and brother of the plaintiff no.1. .4. The defendants to the suit are the wife and son respectively of the deceased O.P. Ralhan, and therefore, the mother and brother of the plaintiff no.1. .4. Mr.Ravi Kadam, the learned Advocate General appearing for the plaintiffs has raised a preliminary objection namely that on 27th October 2005 when this Court ordered issuing a show cause notice to the plaintiffs for committing the breach of the status-quo dated 10th May 1999, the period of limitation to initiate any contempt proceedings against the plaintiffs had expired. In support of his contention, he submitted that the alleged breach of the order of status-quo dated 10th May 1999 pertains to the flat situated in the building known as Bhagwan Nivas situated at Khar. He has submitted that the defendants have admitted that they became aware of the alleged breach on 19th December 2003 / 9th January 2004. He has further pointed out that the defendants have admittedly not taken out any proceedings under the Contempt of Courts Act, 1971, till date. Instead the defendants after about eighteen months from their admitted knowledge of the alleged breach drew .the attention of this Court pertaining the same and sought reliefs for striking of the defence of the plaintiffs, etc. from this Court. A show cause notice therefore, came to be issued by this Court on 27th October 2005 at the instance of the defendants, who had not only failed to initiate any action under the Contempt of Courts Act, 1971 against the plaintiffs but had also failed to bring to the notice of this Court the alleged breach for a period of more than one year from the date of their knowledge. .5. Mr.Kadam submitted that in case of suo-motu contempt proceedings, the Court must initiate action against the alleged contemnor/s within a period of one year from the date on which the contempt is alleged to have been committed and not from the date on which the alleged contempt is brought to the notice of the Court. In support of his contention he relied on paragraph 44 of the decision of the Hon’ble Supreme Court of India in the case of Pallav Sheth v/s. Custodian & Ors., reported 572 in (2001) 7 SCC 549 at page 572), which reads as under:- ."44. In support of his contention he relied on paragraph 44 of the decision of the Hon’ble Supreme Court of India in the case of Pallav Sheth v/s. Custodian & Ors., reported 572 in (2001) 7 SCC 549 at page 572), which reads as under:- ."44. Action for contempt is divisible into two categories, namely, that initiated suo-motu by the Court and that instituted otherwise than on the Court’s own motion. The mode of initiation in each case would necessarily be different. While in the case of suo-motu proceedings, it is the court itself, which must initiate by issuing a notice, in the other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on section 20 must be that action must be initiated, either by filing of an application or by the court issuing notice suo-motu, within a period of one year from the date on which the contempt is alleged to have been committed." 6. Mr. Kadam submitted that in an adversarial proceedings where a party has not taken out proceedings under the Contempt of Courts Act, 1971 for an alleged breach of an order within the period prescribed under section 20, cannot be allowed to initiate contempt proceedings by a circuitous route/method by bringing the alleged breach to the notice of the Court at any point of time and thereafter contend that in case of suo-motu contempt time starts running for initiating contempt proceedings only after the alleged breach is brought to the notice of the Court. Mr.Kadam submitted that in any event, even assuming, only for the sake of argument, that the show cause notice can be issued within a period of one year from the date of the alleged breach being brought to the notice of the court, in the instant case, the plaintiff no.1 had written a detailed letter to the Court Receiver dated 20th February 2004 setting out therein all that had transpired upto the date of the said letter qua the said flat and calling upon the Court Receiver to remove and shift and/or dispose of the inventorised articles lying in the said flats. He has submitted that knowledge of the Court Receiver ought to be construed as the knowledge of the Court and in view thereof, the purported breach on the part of the plaintiffs was to the knowledge of this Court since 20th February 2004. He has therefore submitted that the show cause notice could not have been ordered to be issued to the plaintiffs on 27th October 2005 since by that time the period of limitation prescribed under section 20 of the Contempt of Courts Act, 1971 for initiating contempt against the plaintiffs was over. 7. Before concluding his submissions, Mr. Kadam has also pointed out that though the order directing the show cause notice also mentions that the plaintiffs had filed an affidavit dated 26th February 2004 wherein facts pertaining to the alleged breach are suppressed the show cause notice is not issued on the ground that the plaintiffs have made false statements in the affidavit dated 26th February 2004. He has submitted that the plaintiff no.1 has not made any false statement in her affidavit dated 26th February 2004. He has submitted that apart from the fact that the said affidavit was prepared in the year 2002 and filed in great haste on 26th February 2004 when the matter was to reach hearing, an offence of making a false statement on oath would constitute criminal contempt, which can be heard only by the Division Bench. 8. The learned Advocate for the defendant no. 2 submitted that though it is true that the defendants had knowledge of the alleged breach since 9th January 2004 and though it is true that the defendants have not taken out any contempt proceedings against the plaintiffs till date and though it is also true that the said show cause notice is issued at the instance of the defendants who brought the alleged breach to the notice of the Court some time in June 2005, the question of any bar under section 20 of the Contempt of Courts Act, 1971 does not arise because the said order dated 27th October 2005 was passed within a period of one year from the alleged breach being brought to the notice of the Court. He has submitted that even if the Receiver has knowledge of the alleged breach, the same cannot be equated with the knowledge of the Court. He has submitted that even if the Receiver has knowledge of the alleged breach, the same cannot be equated with the knowledge of the Court. He has submitted that though it is correct that the show cause notice is not issued to the plaintiffs for making incorrect statements in affidavit dated 26th February 2004, the fact remains that the defendants got an opportunity to set out the breach committed by the plaintiffs only after the plaintiff no.1 in her affidavit dated 26th February 2004 suppressed the correct facts. He, therefore, submitted that the show cause notice is issued in time and it cannot be said that the suo-motu action initiated against the plaintiffs is barred under section 20 of the Contempt of Courts Act, 1971. 9. The learned Advocate for defendant no.1 has not made any submissions. In fact, it was defendant no.1 who was instructing the learned Advocate for defendant no.2 and was also responding to the queries put by the Court to the learned Advocate for defendant no.2. .10. I have considered the submissions made by the learned Advocates appearing for the plaintiffs as well as the defendants. It is an admitted fact that the plaintiffs have committed the alleged breach of the order dated 15th December 2003. The defendants admit that they came to know about the alleged breach on 9th January 2004. The defendants have further admitted that they have not initiated any contempt proceedings/ action against the plaintiffs till date and they have brought the alleged breach to the notice of this Court in the pending proceedings only in June 2005 pursuant to which an order dated 27th October 2005 to issue show cause notice to the plaintiffs came to be passed and show cause notice issued on 18th September 2008. The Hon’ble Supreme Court has categorically held in the case of Pallav Sheth (supra) that the proper construction of section 20 must .be that action must be initiated either by filing of an application or by the Court issuing notice suo-motu within a period of one year from the date on which the contempt is alleged to have been committed. In the instant case, the alleged breach was committed by the plaintiffs on 15th December 2003. Action is initiated against the plaintiffs when it was ordered on 27th October 2005 that a show cause notice be issued to the plaintiffs. In the instant case, the alleged breach was committed by the plaintiffs on 15th December 2003. Action is initiated against the plaintiffs when it was ordered on 27th October 2005 that a show cause notice be issued to the plaintiffs. The action initiated against the plaintiffs is, therefore, without any doubt beyond the period of one year from the date on which the contempt is alleged to have been committed. 11. The learned Advocate General is correct in his contention that in the case of a suo-motu action if the period of one year is to be counted from the date the alleged breach is brought to the notice of the Court, a party in an adversarial proceedings which has failed to initiate proceedings under the Contempt of Courts Act, 1971 may use the circuitous route of bringing the alleged breach to the notice of the Court whenever he chooses and convince the Court to initiate proceedings against a party, who had committed an alleged breach at any time in the past, which may be even ten years back. This cannot be allowed. In fact in the case of Pallav Sheth (supra), the Hon’ble Supreme Court has approved the Full Bench decision of the Punjab and Haryana High Court, in Manjit Singh Vs. Darshan Singh, (1984 Cri.L.J.301). The relevant paragraph from the decision of Manjit Singh (supra) is also extracted with approval in paragraph 5 of the decision of the Division Bench of this Court in High Court v/s. Gopinath Munde, (2007 (1) Bom.C.R. (Cri.) 563). The same is reproduced hereunder:- "In the case of Manjit Singh (supra), the Full Bench of the Punjab and Haryana High Court in para 5 observed as under:- "5. It appears to me that on the unequivocal language of section 20 itself as also on principle, the date when time begins to run or the terminus a quo here is inflexibly fixed from the point on which the criminal contempt is alleged to have been committed. This follows from the clear cut and plain grammatical construction of section 20 itself. This follows from the clear cut and plain grammatical construction of section 20 itself. This apart, on principle also the terminus of limitation has to be a fixed and precisely determinable one" The submissions that the limitation should run from the date the contempt was brought to the knowledge of the Court were rejected in the following words:- "Therefore, the actual awareness of the Court of an Act of criminal contempt would inevitably remain a fortuitous circumstance. For limitation to run from a point of time so uncertain as the knowledge of the Court itself or when it is brought to its notice would in my view introduce a double element of uncertainty for the start of the point of limitation which would be contrary to sound principles of construction. On such a view, an action for criminal contempt can be visualized many years after its actual commission because factually it may be brought to the notice of the Court even after a decade. This, in essence, would frustrate the very purpose of the legislature in introducing a period of limitation. The report of the Sanyal Committee which preceded the enactment of the Contempt of Courts Act, 1971, would indicate that one of the clear cut purposes was that the extraordinary jurisdiction to punish for contempt was not to be exercised in stale cases." 12. Inmy view, what is stated in the case of Manjit Singh (supra) pertaining to limitation in cases of criminal contempt applies in identical terms to civil contempt as well. Under the circumstances, in my view, in the instant case, the action of issuing suo-motu notice on 27th October 2005 is not within a period of one year from the date on which the contempt is alleged to have been committed. The said show cause notice is, therefore, issued after expiry of the limitation period prescribed in section 20 of the Contempt of Courts Act, 1971 and therefore, cannot be proceeded with. The said show cause notice is, therefore, issued after expiry of the limitation period prescribed in section 20 of the Contempt of Courts Act, 1971 and therefore, cannot be proceeded with. In any event, in my view, in the instant case, since the Court Receiver was appointed to take an inventory of all the articles in the suit flat and the plaintiff had already informed the Court Receiver about all that had transpired qua the suit flat by her letter dated 20th February 2004, it can be held that this Court had knowledge of the alleged breach of the status-quo order dated 10th May 1999 as on 20th February 2004 and the order dated 27th October 2005, directing show cause notice to be issued to the plaintiffs as to why action should not be taken against them under the Contempt of Courts Act, 1971, is barred by the Law of Limitation prescribed under section 20 of the Contempt of Court’s Act, 1971. 13. Under the circumstances, the show cause notice dated 18th September 2008 issued to the plaintiffs is hereby discharged.