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2011 DIGILAW 788 (AP)

Saleemunnisa Begum v. Syed Hafeez

2011-09-20

R.KANTHA RAO

body2011
Judgment : 1. This contempt case is filed by the petitioner-landlady against the respondent-tenant to punish him according to law for intentionally and deliberately disobeying the undertaking given before this Court in Second Appeal No. 115 of 2009, as per order dated 16-02-2009. 2. The brief facts relating to the contempt case may be stated as follows: The respondent was the tenant of the schedule premises belonging to the petitioner-landlady seeking his eviction and for recovery of possession the petitioner filed OS.No. 4432 of 2006 on the file of the Court of IX Junior Civil Judge, City Civil Court, Hyderabad after issuing notice of termination. The suit was decreed on 22-6-2007. Feeling aggrieved, the respondent filed AS.No. 384 of 2007, which was heard and disposed of by the IX-Additional Chief Judge, (FTC) City Civil Court, Hyderabad. The appeal was dismissed on 20-11-2008. Against the judgment in the appeal, the respondent filed SA.No.115 of 2009 before this Court. While the second appeal was pending the appellant filed memo dated 13-02-2009 seeking time to vacate the premises. The learned single Judge took the undertaking on record and granted time till 31-12-2009 to vacate the premises and to handover the vacant possession of the same to the petitioner-landlady. Subsequently it is said that in OS.No. 1725 of 2009 filed by the petitioner against the respondent and another, the respondent filed a memo stating that he delivered the possession of flat to one Mr. Mohammed Arif. The petitioner filed EP.No. 1 of 2010 on the file of the Court of IX Junior Civil Judge, City Civil Court, Hyderabad. Inspite of filing of execution petition, the respondent-tenant did not vacate the premises in terms of the undertaking submitted before this Court and he filed claim-petition through third party i.e., Mr.Mohammed Arif. Contending as above, the petitioner filed the present contempt case against the respondent-tenant for punishing him according to law for violating the undertaking given before this court in Second Appeal No.115 of 2009. It is needless to mention that in view of the undertaking given by the respondent-tenant and the subsequent order passed by the learned single Judge on 16-2-2009 granting time to the respondent-tenant to vacate the premises on or before 31-12-2009, the Second Appeal No.115 of 2009 stood dismissed. 3. It is needless to mention that in view of the undertaking given by the respondent-tenant and the subsequent order passed by the learned single Judge on 16-2-2009 granting time to the respondent-tenant to vacate the premises on or before 31-12-2009, the Second Appeal No.115 of 2009 stood dismissed. 3. The respondent-tenant filed counter-affidavit stating that he is not aware of the contempt case, as no notice was served on him and that soon after knowing about the contempt case he appeared before this Court and engaged counsel to defend him. According to the respondent-tenant, he is not residing in the address given in the notice issued in the contempt case. Filing the undertaking before the learned single Judge and subsequent order passed by the learned single Judge after taking the undertaking on record have not been denied by the respondent-tenant. 4. The contention of the respondent is that as per the undertaking given before this court, he vacated the suit premises on 26-12-2009 and in view of the legal notice dated 20-08-2009 issued by Mr.Mohammed Arif son of Haji Miyan he bonafidely believed the sale transaction and memorandum of understanding between Mr.Mohammed Arif and the petitioner-landlady and delivered possession to Mr.Mohammed Arif. 5. According to the respondent-tenant in the said legal notice dated 20-08-2009, Mohammed Arif informed him about the purchase of the schedule premises from the petitioner-landlady under an agreement of sale dated 30-08-2008 and also entering into subsequent memorandum of understanding dated 21-03-2009. Thus, according to the respondent-tenant, he genuinely believed the version of Mohammed Arif and handed over the possession to him, thinking that the sale agreement between the petitioner-landlady and Mohammed Arif are true. 6. It is further submitted by the respondent-tenant that the petitioner-landlady filed EP.No. 1 of 2010 for execution of decree passed in her favour and also filed OS.No. 1725 of 2009 for permanent injunction against him and Mohammed Arif. It is also his contention that he is not contesting the execution petition, as he already vacated the schedule premises and handed over the possession of the same to Mohammed Arif. 7. It is also his contention that he is not contesting the execution petition, as he already vacated the schedule premises and handed over the possession of the same to Mohammed Arif. 7. Another contention putforth by the respondent is that when Mohammed Arif filed transfer petition seeking transfer of EP.No.1 of 2010 to the Court of X-Senior Civil Judge, City Civil Court, Hyderabad, where the suit for specific performance is pending adjudication, the petitioner-landlady did not oppose the petition and reported no objection and therefore it can be presumed that the sale agreement and memorandum of understanding are true and genuine. 8. According to him, he had no intention to violate the order and the undertaking given before this court and that he has great respect to the judicial process and judicial system. He also submitted apology, which is said to be unconditional and with open heart to this Court requesting to condone the wrong committed by him genuinely believing the version of Mohammed Arif. Therefore, he states that he complied with the undertaking given before this Court and complied with the order passed by this court by handing over the possession to Mohammed Arif, whom he believed to be the purchaser under sale agreement from the petitioner-landlady. He therefore urged this Court to accept the contention and dismiss the contempt case. 9. In the reply affidavit filed by the petitioner-landlady, she stated that the respondent-tenant is residing in the suit premises, which he undertook to handover possession of the same to her and falsely contending that the notices in the contempt case are not served on him. According to the petitioner-landlady, the notices were issued by this Court through special messenger were served on the respondent-tenant and only after receiving the said notice he made appearance through his advocate and was not present before this Court and only after it was brought to the notice of this Court and when the Court directed his personal appearance, he appeared before this Court. 10. It is further submitted by the petitioner-landlady that the respondent did not vacate the premises in terms of the undertaking and the order passed thereon 31-12-2009 he colluded with Mohammed Arif and he fabricated the alleged agreement of sale dated 30-08-2009 and an memorandum of understanding dated 23-1-2009 alleging that symbolic possession was delivered to Mohammed Arif. 10. It is further submitted by the petitioner-landlady that the respondent did not vacate the premises in terms of the undertaking and the order passed thereon 31-12-2009 he colluded with Mohammed Arif and he fabricated the alleged agreement of sale dated 30-08-2009 and an memorandum of understanding dated 23-1-2009 alleging that symbolic possession was delivered to Mohammed Arif. It is further stated by her that though the respondent contended in his counter-affidavit that he received notice dated 20-8-2009 from Mohammed Arif, he did not file the said notice before this Court. 11. Nextly, it is submitted by the petitioner-landlady that since the disputes were subsisting between her and the respondent for not vacating the premises and the respondent being in possession, the question of her delivering the possession of property to third party does not arise. It is also submitted by her that the order passed by this Court in the second appeal pursuant to the undertaking given by the respondent does not enable him to deliver possession to a third party. It is further contended that the respondent intentionally and deliberately violated the order of this Court pursuant to the undertaking given by the respondent, and therefore, he cannot be escape the punishment under the guise of unconditional apology and pleading innocence. 12. Heard Sri K. Arun Kumar and Ms.Hanna Al-Khadir, representing Sri R.A. Achutanand, the learned counsel appearing for the petitioner-landlady and Sri Sreenivasa Rao Velvela, the learned counsel appearing for the respondent-tenant. 13. As could be seen from the order passed by this Court on 16-2-2009 pursuant to the undertaking furnished by the respondent on 13-02-2009 the respondent-tenant has to handover vacant possession of the schedule premises to the petitioner-landlady and not to any other person. Merely because some civil proceedings are initiated by the third party, the right of the petitioner-landlady to file contempt case on the ground of deliberate violation of the orders passed by this Court cannot be taken away. The respondent-tenant contended in the counter-affidavit that only on receiving the legal notice dated 20-08-2009 from Mohammed Arif he believed the version in the said notice and also about the existence of the sale agreement and memorandum of understanding and handover possession to Mohammed Arif thinking that he is the purchaser from the petitioner-landlady. The respondent-tenant contended in the counter-affidavit that only on receiving the legal notice dated 20-08-2009 from Mohammed Arif he believed the version in the said notice and also about the existence of the sale agreement and memorandum of understanding and handover possession to Mohammed Arif thinking that he is the purchaser from the petitioner-landlady. Even according to the respondent-tenant he did not verify from the petitioner-landlady whether infact she sold the property to Mohammed Arif and an agreement of sale dated 30-08-2009 and memorandum of understanding dated 23-01-2009 were entered into between her and Mohammed Arif. He did not issue any legal notice to the petitioner-landlady to ascertain the correctness of the averments made in the legal notice allegedly issued by Mohammed Arif to him. 14. The version of the petitioner-landlady is that the respondent had set-up Mohammed Arif and both of them have in collusion with each other created a false story of sale of property under agreement to sell by the petitioner-landlady to Mohammed Arif. The respondent-tenant did not file the legal notice dated 20-08-2009 allegedly issued to him by Mohammed Arif. As per the orders passed by this Court on 16-02-2009, the respondent-tenant is duty bound to vacate the premises and handover the vacant possession of the same to the petitioner-landlady by 31-12-2009 and after complying with the said order he has to inform this Court about the compliance. Further the respondent-tenant did not even obtain any receipt from the petitioner-landlady stating that with her consent only he delivered possession of the schedule premises to Mohammed Arif. The petitioner-landlady filed OS.No.1725 of 2009 seeking permanent injunction against the respondent-tenant and Mohammed Arif and subsequently on 25-03-2009 the said suit was withdrawn before the IX Junior Civil Judge, before whom the said suit was pending. As I have already said, mere pendency of civil suit for specific performance filed by Mohammed Arif does not debar the petitioner-landlady from pursuing her remedy under the Contempt of Courts Act. 15. All the facts stated above clearly indicate that there is a collusion between the respondent-tenant and Mohammed Arif. The respondent-tenant has been contending that he believed the legal notice dated 20-8-2009 to be genuine and true, and therefore, he delivered the possession of the schedule premises to Mohammed Arif. The said version is not only without basis but also palpably false. The respondent-tenant has been contending that he believed the legal notice dated 20-8-2009 to be genuine and true, and therefore, he delivered the possession of the schedule premises to Mohammed Arif. The said version is not only without basis but also palpably false. This is a case wherein the respondent-tenant had deliberately violated the orders passed by this Court on 16-02-2009 pursuant to the undertaking given by him on 13-02-2009 in SA.No. 115 of 2010. I have no hesitation to hold that the respondent-tenant is guilty of the contempt of court punishable under section 12 of the Contempt of Courts Act. 16. The respondent-tenant is therefore found guilty of the Contempt of Courts for deliberately and intentionally violating the order passed by this Court on 16-2-2009 and is sentenced to simple imprisonment for a period of six months under section 12 of Contempt of Courts Act, 1971. The apology submitted by the respondent-tenant to this Court is rejected by considering that the same was submitted on false grounds. The respondent shall be detained in civil prison. His daily subsistence allowance is fixed at Rs.150/-. 17. Accordingly the contempt case is allowed.18. At this stage, the learned counsel for the respondent-tenant submitted that the respondent-tenant intends to prefer appeal, therefore, the sentence of simple imprisonment passed against him in this contempt case is suspended for a period of 25 days from the date of receipt of a copy of this order, so as to enable him to prefer contempt appeal.