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Uttarakhand High Court · body

2011 DIGILAW 696 (UTT)

DEEPAK KUMAR GUPTA v. NANDAN KUMAR MITTAL

2011-11-29

TARUN AGARWALA

body2011
JUDGMENT Heard Mr. Bhupesh Kandpal, the learned counsel for the petitioners and Mr. Piyush Garg, the learned counsel for the respondents. 2. The respondent no.1 filed a suit for possession alleging that he is the owner of the property in question. An application under Order 39 Rule 1 & 2 of the Code of Civil Procedure (hereinafter referred to as C.P.C.) for grant of temporary injunction was also filed. The trial court, after hearing the parties, granted an injunction in favour of the respondent no.1 restraining the petitioner from interfering in the possession of the property with the plaintiff respondent no.1. 3. It is alleged that the petitioner interfered in the possession of the plaintiff and violated the temporary injunction. Respondent no.1 accordingly filed an application under Order 39 Rule 2A of the C.P.C. praying that there has been a breach of the order of the court by the petitioner and that contempt proceedings should be initiated against him. In support of his contention, certain affidavits of witnesses were filed by way of evidence. In response to these contempt proceedings, the defendant petitioner filed an application 69C praying that he may be permitted to cross examine these persons who have filed the affidavits in support of the contempt application. The reason for cross-examining the witness has been given in paragraph 9 of the application 69C, which is extracted hereunder:- "9. That allegation made in the present application is baseless and vague. Applicant has filed certain affidavits before the learned court in support of his contention but failed to produce any witness in the witness box for cross examination. Unless witness enters into the witness box, his testimony or contents of the affidavit cannot be relied upon." 4. The trial court, after considering the matter, rejected the application 69C holding that the contempt proceedings are summary in nature and that the procedure for cross-examining the witnesses as provided under the C.P.C. is not applicable in these summary proceedings. The defendant petitioner, being aggrieved by the said order, has filed the present writ petition. 5. The basic issue which arises for consideration is, "whether the Code of Civil Procedure is applicable in the contempt proceedings initiated under Order 39 Rule 2A of the C.P.C. or not". Section 141 of the C.P.C. gives a clear indication about applicability of the C.P.C. For facility, the said provision is extracted hereunder:- "141. Miscellaneous proceedings. 5. The basic issue which arises for consideration is, "whether the Code of Civil Procedure is applicable in the contempt proceedings initiated under Order 39 Rule 2A of the C.P.C. or not". Section 141 of the C.P.C. gives a clear indication about applicability of the C.P.C. For facility, the said provision is extracted hereunder:- "141. Miscellaneous proceedings. - The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. " Explanation. -In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution." 6. From a perusal of the aforesaid provision, it shows that the procedure provided in the C. P.C. in regard to suits shall be followed as far as possible in other proceedings. The word 'proceedings' as contemplated under Section 141 of the CPC would include the procedure under Order 39 Rule 2A of the CPC and, therefore, to that extent, the Code of Civil Procedure will apply. 7. In Ram Chandra Aggarwal Vs. The State of Uttar Pradesh AIR 1966 SC 1888, the Supreme Court held that "6. Though there is no discussion, this Court has acted upon the view that the expression "civil proceeding" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding. Thus, though we say that it is not necessary to consider in this case whether the proceeding before the civil court is a civil proceeding as contemplated by Section 141 or not there is good authority for saying that it is a civil proceeding." 8. The words "as far as it can be made applicable" used in Section 141 of the C.P.C. is also relevant. It does not mean that the Code of Civil Procedure would be made applicable lock, stock and barrel, but rules for procedure provided in the C.P.C. which are handmaid of justice should be made applicable as far as possible. Contempt proceedings are summary in nature and has to be decided on the procedure evolved by the court itself since no procedure has been prescribed. Contempt proceedings are summary in nature and has to be decided on the procedure evolved by the court itself since no procedure has been prescribed. Such procedure is normally done through affidavits and the procedure evolved under the C. P.C. in a regular suit would normally not apply. 9. In the matter of Basanta Chandra Ghosh, Advocate, Patna & others AIR 1960 Patna 430, the Full Bench of the Patna High Court in relation to the contempt proceedings under the Contempt of Courts Act held that the strict rules of evidence contained in the Evidence Act does not apply. The Full Court held :- "5. It is no doubt true that it has been held in a series of decisions that when a witness is examined in a judicial proceeding, the examination of the witness and his statements must be subject to the rules of evidence laid down in the Evidence Act; and it is also no doubt true that the proceeding in contempt is a judicial proceeding. In my opinion, however,in view of the summary nature of the enquiry it will not be correct to apply the strict rules of evidence to this class of cases. No authorities were brought to our notice in support of the contention that the provisions of the Indian Evidence Act should apply to the reception of materials against the contemner in a contempt proceeding which only necessitates that the proceeding must be based on fairness and justice to the respondent, and if there be anything on record to show, where a fact has to be established by proof, that there is a lacuna in the material which will throw a reasonable doubt on the existence of a state of facts, it must be construed in favour of the person proceeded against." 10. In Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat & others AIR 1991 SC 2176, the Supreme court made a distinction between an offence committed under the criminal jurisdiction and in a contempt proceedings and held that the charge of contempt is tried on a summary process without any fixed procedure and that the court is free to evolve its own procedure consistent with fair play and natural justice. The Supreme Court held:- "12 An offence under the criminal jurisdiction is tried by a Magistrate or a Judge and the procedure of trial is regulated by the Code of Criminal Procedure, 1973 which provides as elaborate procedure for framing of charges, recording of evidence, cross examination, argument and the judgment. But charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits." 11. From the aforesaid, it is clear that in contempt proceedings, no oral evidence is recorded and the usual practice is to give evidence by affidavits. The proceedings for grant of injunction under Order 39 Rule 1 & 2 C.P. C. are generally decided on affidavits pending reception of evidence in the regular suit. Any violation of the order passed in proceedings under Section 39 Rule 1 & 2 of the C. P. C. entails initiation of proceedings under Order 39 Rule 2A of the CPC. No procedure has been prescribed either under the C. P. C. or otherwise and, consequently, it is left to the court to evolve its own procedure, which should be consistent with fair play and natural justice. 12. In proceedings under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 the application under Section 21 of the said Act for release of the premises is decided on affidavits. The High Court has been consistent in catena of decisions, namely, that the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 permits reception of evidence of affidavits and cross-examination of a person who has given such an affidavit could be exercised only in an exceptional circumstances where reasons have been given for cross-examining a witness. 13. The principle that a party has to be crossexamined on the principle of natural justice and fair play cannot be accepted in each and every case. In Hira Nath Mishra Vs. The Principal, Rajendra Medical College AIR 1973 SC 1260 and State of Haryana & another Vs. 13. The principle that a party has to be crossexamined on the principle of natural justice and fair play cannot be accepted in each and every case. In Hira Nath Mishra Vs. The Principal, Rajendra Medical College AIR 1973 SC 1260 and State of Haryana & another Vs. Rattan Singh 1977 AIR (SC) 1512 it was held that if a party wants to crossexamine a witness, he has to give necessary facts in the application as to why the cross-examination is necessary. If such an application is filed, the court will consider and apply its mind and give reasons either allowing or refusing the application for cross examing a witness. Such reasons disclosed by the trial court will show whether he had acted fairly and in accordance with the principle of natural justice. Such procedure in the opinion of the court is contemplated in the summary proceedings. In the light of the aforesaid, the court finds from a perusal of paragraph 9 of the application that the reason given for calling a witness for cross-examination was patently vague. No reasons has been given as to why the witness is required to be produced before the witness box. In the light of the aforesaid, the court does not find any error in the impugned order. The writ petition fails and is dismissed.