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2012 DIGILAW 110 (RAJ)

Devkishan v. Madanlal @ Madan Mohan

2012-01-10

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. This is a contempt petition filed under Section 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as "the Act") against the appellant-non-petitioner Madan Lai @ Madan Mohan for the deliberate and wilful disobedience of the order dated 19.4.2002 passed by this Court in SB Civil Misc. Stay Application No. 2131/2001 filed In SB Civil First Appeal No. 22012001 whereby the parties were directed to maintain status-quo as regards the possession of the land in dispute pending hearing and disposal of the appeal. With the consent of counsel for the respective parties, the petition was finally heard and, therefore, it Is being disposed of finally at the admission stage itself. 3. Brief relevant facts for the disposal of this petition are that petitioner-respondent Shri Dev Kishan filed a suit for specific performance of agreement to sell and permanent injunction being Civil Suit No. 45/99 before the Court below with the averment that appellant-non-petitioner Shri Madan Lal @ Madan Mohan agreed to sell land in dispute to him and in this regard agreement to sell was executed on 13.8.1991 and possession of the land was handed over to him. It was also averred that in this regard a second agreement to sell was also executed on 27.7.1994. In that suit the appellant-non-petitioner remained absent and the suit was not contested by him. The learned trial Court by judgment dated 26.5.2001 decreed the suit and apart from other reliefs, relief regarding execution and registration of sale deed of the land in dispute was granted and permanent injunction was also granted to the effect that Interference in the possession of respondent-petitioner would not be made. The learned trial Court on the basis of pleadings and evidence available on record came to a clear finding that possession of the land In dispute was delivered by the appellant-non-petitioner to the respondent-petitioner at the time of execution of the agreement to sell. It Is to be noted that before the execution of agreement to sell dated 13.8.1991, the land in dispute along with some other land has already been mortgaged by the appellant-non-petitioner and his brother Harish Chandra Bhatnagar to the ink of Rajasthan in lieu of some loan taken by them. It Is to be noted that before the execution of agreement to sell dated 13.8.1991, the land in dispute along with some other land has already been mortgaged by the appellant-non-petitioner and his brother Harish Chandra Bhatnagar to the ink of Rajasthan in lieu of some loan taken by them. The learned trial Court while decreeing the suit filed by the respondent-petitioner also made some directions regarding the payment of that loan which was still unpaid at the. relevant time. 4. Feeling aggrieved by the judgment and decree dated 26.5.2001, appellant-non-petitioner Shri Madan Lai @ Madan Mohan filed SB Civil First Appeal No. 220/2001 before this Court along with SB Civil Misc. Stay Application No. 2131/2001. The appeal was admitted vide order dated 21.8.2001 whereas in the stay application on 19.4.2002 following order was passed : "It is directed that status-quo as regards the possession of the land shall be maintained by the parties pending hearing and disposal of this appeal." 5. The respondent-petitioner, who was plaintiff before the learned trial Court, filed this petition with the averment that the petitioner is in peaceful possession of the land In dispute and the appellant-non-petitioner with an intention to dispossess the petitioner mortgaged the land in dispute with Kota Sahakari Bhumi Vikas Bank Ltd. and he has failed to repay that loan and, therefore, the bank Is putting the land In dispute to auction so as to realise the loan given to the non-petitioner It was further averred that by taking loan and mortgaging the land In dispute to the bank the non-petitioner has violated and disobeyed the order dated 19.4.2002 and this act of the non-petitioner clearly tantamount to disobedience of the status-quo order It was prayed that the non-petitioner is liable to be punished for having committed civil contempt of the Court. In support of the petition the petitioner filed affidavit and some documents. 6. The appellant-non-petitioner filed reply to the petition and it was averred by him that he was in need of money, therefore, he mortgaged the land in dispute with the bank, but possession of the land was not handed over to the bank. In support of the petition the petitioner filed affidavit and some documents. 6. The appellant-non-petitioner filed reply to the petition and it was averred by him that he was in need of money, therefore, he mortgaged the land in dispute with the bank, but possession of the land was not handed over to the bank. It was also submitted that the non-petitioner was under a belief that the mortgaging of the land would not change the nature of possession of the land in dispute and it would not be treated as violation of order of status-quo as regards the possession of the land as directed by the order dated 19.4.2002. It was also averred in the reply that the non-petitioner undertakes to repay the loan amount taken by him from the Kota Sahakari Bhumi Vikas Bank, Kota. The non-petitioner also averred that he tenders unconditional apology to this Court for his conduct which was otherwise not wilful or intentional. In the end, it was prayed by the non-petitioner that he may be discharged from committing contempt of the Court. In support of the reply, the non-petitioner filed his affidavit. 7. I have heard the learned counsel for the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the relevant case law. 8. In my view, following issues have arisen for consideration and disposal of this petition: (1) Whether the land in dispute was mortgaged by the non-petitioner after passing of the order dated 19.4.2002? (2) Whether mere mortgage of land without handing over the possession of it to the bank or to any other person amounts to disobedience or violation of the order? (3) If yes, whether the disobedience or violation was deliberate and wilful? (4) Whether the unconditional apology tendered by the non-petitioner by way of reply filed by him is liable to be accepted? (5) Relief? 9. (3) If yes, whether the disobedience or violation was deliberate and wilful? (4) Whether the unconditional apology tendered by the non-petitioner by way of reply filed by him is liable to be accepted? (5) Relief? 9. My findings with reasons on each of the issues raised are as below: (1) The learned counsel for the petitioner submitted that from the reply filed by the non-petitioner himself, it is very much clear that the land in dispute was mortgaged by him after passing of order dated 19.4.2002 as the non-petitioner failed to specify the date on which the land was mortgaged with the bank and in absence of that it should be assumed that it was mortgaged after 19.4.2002. On the other hand, the learned counsel for the non-petitioner contended that it was for the petitioner to prove beyond reasonable doubt that the land was mortgaged by the non-petitioner after passing of the order dated 19.4.2002, but he has failed to produce any evidence regarding it and, therefore, it cannot be presumed that the mortgage was effected after the passing of order in question. It was further contended that unless it is proved that the mortgage was made after the passing of the order, mere mortgage made by the non-petitioner cannot amount disobedience or violation of that order. No doubt it was for the petitioner to prove beyond reasonable doubt that the mortgage was made after passing of order dated 19.4.2002 and in this regard no evidence has been produced indicating the date on which the said mortgage was made but looking to the fact that fact of mortgage has not been denied by the non-petitioner and also looking to the averment made in the reply filed by the non-petitioner, it is very much clear that the land in dispute was mortgaged by the non-petitioner after passing of the order dated 19.4.2002. In para No. 1 of the reply, it has been averred that the non-petitioner was under a need of money, therefore, he mortgaged the land in question with the bank and since the possession of the land was not handed over to the bank, the non-petitioner was under a belief that the mere mortgaging of the land would not change the nature of the possession of the land and it would not be treated as not maintaining the status-quo as regards the possession of the land as directed by this Court vide order dated 19.4.2002. There is no specific denial by the non-petitioner of the fact that the land was mortgaged after the order was passed. In the reply, it has only been averred that in the belief of the non-petitioner mere mortgaging of land did not tantamount to handing over the possession of the land to the bank or to any other person. Therefore, in my opinion even in absence of evidence indicating the specific date on which the land in question was mortgaged, it is very much clear that it was mortgaged after passing of order dated 19.4.2002. Apart from that, the date of mortgage must be in specific knowledge of the non-petitioner and it was for him to make clear on what date the mortgage was effected. In the light of admission of the fact that the land in question was mortgaged with the bank by the non-petitioner, the burden shifted upon him to clarify on what date the mortgage was made. (2) It is an admitted fact that the laid in dispute was mortgaged only with the bank and possession of it was not handed over to the bank or to any other person and it is also an admitted fact that the possession remained with the petitioner even after the mortgage. In the light of these facts, it is to be considered whether mere mortgage of land amounts to disobedience or violation of order dated 19.4.2002. In the light of these facts, it is to be considered whether mere mortgage of land amounts to disobedience or violation of order dated 19.4.2002. In this regard, the learned counsel for the petitioner contended that although at the time of making mortgage the possession of the land was not handed over to the bank or to any other person, but as the non-petitioner has failed to repay the loan taken from the bank, the bank put the land in dispute to auction and if the land gets auctioned, the possession of it is bound to be delivered to the auction purchaser and, therefore, the act of mere mortgage is clear disobedience or violation of the order. According to the learned counsel for the petitioner, the order of maintaining status-quo as regards the possession of the land in question means not only that actual possession shall not be disturbed in any way or handed over to any other person, but also it means that no party to the order shall take such steps which may in future compel the party in possession to transfer or hand over the possession to any other person or which may in any manner disturb his possession. It was contended that any act which may result In handling over possession in any way amounts to disobedience or violation of the order. On the other hand, it was contended by the learned counsel for the non-petitioner that by order dated 19.4.2002, it was directed that status-quo as regards the possession of the land in dispute shall be maintained and admittedly according to the petitioner himself the possession of the land is with him, therefore, mere mortgage of the land does not amount to interference in possession. It was submitted that it cannot be said that the non-petitioner in any manner has disobeyed or violated the order. It is true that actual possession of the land in dispute has not been disturbed or transferred or handed over to the bank or to any other person and according to the petitioner himself the possession of the land is still with him, but merely by that reason it cannot be said that the non-petitioner has not disobeyed or violated the order of status-quo dated 19.4.2002. By order dated 19.4.2002, it was directed that status-quo as regards the possession of the land shall be maintained by the parties pending hearing and disposal of the appeal. I am in agreement with the submission made by the learned counsel for the petitioner that it is not physical handing over or transfer of possession of the land in question at the time of effecting mortgage that would amount to violation or disobedience of the order, but any act of the non-petitioner by which there is likelihood of transfer or handing over of possession in any manner to any other person shall amount to disobedience or violation of the order. From the material available on record, it is clear that after passing of the order dated 19.4.2002, the non-petitioner took loan from the bank concerned and to secure the repayment of that loan, the land in question was mortgaged with the bank. It is also clear that payment of the loan amount was not made and an amount of Rs. 8,63,647/- was due against the non-petitioner and when that amount was not paid, auction notice was published in accordance with law. If the bank or the competent authority proceeds with the auction of the land in dispute, there is every likelihood that some person may purchase the land in dispute and in that situation there is every possibility that possession of the land in dispute would be handed over or transferred to the auction purchaser. I am of the considered view that the act of mortgaging the land in lieu of taking of loan from the bank and thereafter non-payment of that loan is clearly tantamounts to disobedience or violation of even order of status-quo regarding possession. I am also of the view that the order dated 19.4.2002 should not be narrowly interpreted as the intention of passing of that order was clearly that no such steps would be taken by any of the parties to the order, which may in any way adversely effect the rights of the party in possession at the time the order was passed. The meaning of the order dated 19.4.2002 cannot be confined only to the actual handing over of possession. Therefore, it is held that mere taking of loan by mortgaging the land In dispute clearly tantamounts to disobedience or violation of the order dated 19.4.2002. The meaning of the order dated 19.4.2002 cannot be confined only to the actual handing over of possession. Therefore, it is held that mere taking of loan by mortgaging the land In dispute clearly tantamounts to disobedience or violation of the order dated 19.4.2002. (3) It was contended on behalf of the petitioner that the order dated 19.4.2002 was passed In the presence of counsel for the non-petitioner and, therefore, it would be presumed that the order was in the knowledge of the non- petitioner. It was also contended that even it has not been said by the non-petitioner that the order was not in his knowledge and in ignorance of the order the land In question was mortgaged by him. According to learned counsel if a party bound by an order knowingly disobeys or violates such an order, it tantamounts to a deliberate and wilful disobedience or violation. It was also contended that non-payment of the loan further shows that the non- petitioner was not having any intention to repay the loan and this act of the non-petitioner Is further clear Indication of the fact that the disobedience or violation is wilful and deliberate. On the other hand, learned counsel for the non-petitioner submitted that mere disobedience or violation of the order does not tantamount to "civil contempt" within the meaning of the Act unless the Court comes to a clear finding that the disobedience or violation was wilful and deliberate. It was also contended that the non-petitioner Is an Illiterate person with a rural background and he was under the impression that mere mortgage of the land in question does not amount to not maintaining the status-quo as regards the possession of the land. The Act provides that contempt of Court means civil contempt or criminal contempt. Section 12 of the Act provides punishment for contempt of Court whereas according to Section 2(b) of the Act, "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. It is thus clear that unless the disobedience of an order is wilful, it does not tantamount to "civil contempt" within the meaning of the Act. Hon'ble Supreme Court In the case of Ashok Paper Kamgar Union v. Dharma Godhra & Ors. It is thus clear that unless the disobedience of an order is wilful, it does not tantamount to "civil contempt" within the meaning of the Act. Hon'ble Supreme Court In the case of Ashok Paper Kamgar Union v. Dharma Godhra & Ors. reported In, 2003(2) WLC (SC) Civil 497 : (2003) 11 SCC 1 has interpreted the concept of wilful disobedience of an order of the Court in the manner that "wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Hon'ble Court it signifies the act done with evil Intent or with a bad motive or purpose. It was also observed that the act or omission has to be judged having regard to the facts and circumstances of each case. In the case of Kapildeo Prasad Sah & Ors. v. State of Bihar & Ors. reported In, (1999) 7 SCC 569 it has been observed by Hon'ble Supreme Court that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or order of the Court, but it was indicated that even negligence and carelessness may amount to contempt. It was further observed that Issuance of notice for contempt of Court or power to punish Is of far reaching consequences, and as such they should be resorted to only where a dear case of wilful disobedience of the Court's order is made out. In the case of Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors. reported in, (2002) 4 SCC 21 , Hon'ble Supreme Court has held that mere disobedience of an order may not be sufficient to amount to a "civil contempt" within the meaning of Section 2 (b) of the Act - the element of willingness Is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation-the act or acts cannot be described to be otherwise contumacious In nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise. It was also held that disobedience of a clear and unambiguous order of a Court, not capable of more than one interpretation, would amount to contempt of court. There can be no laxity in such a situation, because otherwise court orders would become the subject of mockery and the courts themselves rendered useless. Misunderstanding or own understanding of the court's order, would not be a permissible defence. If considered in the light of the legal position as prevalent in this regard, it is clear that the non-petitioner deliberately and wilfully disobeyed or violated the order dated 19.4.2002. Despite the knowledge of passing of the order of status-quo, the non-petitioner took loan from the bank and in lieu of that he mortgaged the land in dispute without informing the bank that the mortgaged land is a subject matter of a suit/appeal and moreover he failed to repay the loan necessitating the bank to take appropriate steps according to law so that the loan can be realised. An attempt has been made by the non-petitioner to explain that as the possession of the land was not handed over to the bank he was under a belief that mere mortgaging of the land would not change the nature of possession of the land in question and it would not be treated as violation or disobedience of the order. I am of the view that misunderstanding or own understanding of the Court's order being not a permissible defence, the non-petitioner cannot get any benefit from the explanation rendered by him. In the facts and circumstances of the present case, it cannot be held that the non-petitioner did not understand the implication and/or consequence of the status-quo order. The non-petitioner has taken no steps till now to repay the arrears of loan due against him and in such circumstances the plea of bonafide mistake of understanding the order cannot be accepted. If in fact by bonafide misunderstanding of the order, the land was mortgaged, the non-petitioner has failed to explain why he failed to repay the loan and allowed it to swell to the extent of several lac rupees. If in fact by bonafide misunderstanding of the order, the land was mortgaged, the non-petitioner has failed to explain why he failed to repay the loan and allowed it to swell to the extent of several lac rupees. If the act was actually by mistake or misunderstanding, it could have been rectified by him but he has failed to do so. Apart from that, if there was any confusion regarding meaning or implication of the order, the non-petitioner could have approached to this Court for clarification but that also was not done. Accordingly, it is held that the action of the non-petitioner was deliberate as well as wilful;. (4) The learned counsel for the non-petitioner contended that non-petitioner at the earliest opportunity by way of reply has tendered unconditional apology, therefore, looking to the facts and circumstances of the case and more particularly to the fact that the non-petitioner is an illiterate person having a rural background, his apology may be accepted and he may be discharged from the accusation of disobedience of the Court's order. On the other hand, learned counsel for the petitioner contended that mere tendering of unconditional apology by way of reply does not tantamount to apology in the real sense. It was also pointed out that on the one hand the non-petitioner is tendering unconditional apology whereas on the other hand his contention Is that the disobedience was not wilful or intentional. It was also pointed out that the conduct of the petitioner lacks bonafide by the reason that even after filing of this petition he has not taken any steps for repayment of loan taken from the bank. It is well settled that the Act is a powerful weapon in the hands of the courts for the purpose of imbibing confidence in the people and to ensure the due and proper administration of justice in India. However, for that very reason, powers under it should be exercised cautiously and in the larger interest of society and only after the court is satisfied beyond doubt as to the guilt of an accused as well as the bonafides of the complainant. Feeling of confidence and proper administration of justice cannot but be the hallmark of Indian jurisprudence and contra-action by courts will lose its efficacy. Feeling of confidence and proper administration of justice cannot but be the hallmark of Indian jurisprudence and contra-action by courts will lose its efficacy. Tolerance of law courts there is, but not without limits and only up to a certain point and not beyond the same.Hon'ble Supreme Court in the case of T.N. Godavarman Thriumulpad v. Ashok Khot reported in, 2006 (2) WLC (SC) Civil 515 : (2006) 5 SCC 1 has held that an apology is neither a weapon of defence to purge the guilty of their offence, nor it is intended to operate as a universal panacea, it is intended to be evidence of real contriteness. It has also been held that if the apology is not offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. In the present case, non-payment of loan even after the filing of this petition, is a clear indication of the fact that the non-petitioner has no respect to the orders of a court and he took the loan with an intention not to pay it as he was aware that if the loan is not paid, at the most the land in dispute would be put to auction to realise the loan and not being in possession, he is not going to suffer in any manner. A party to the litigation cannot be allowed to take an,unfair advantage by committing breach of an order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the court and the wrong perpetrated by the non-petitioner In contumacious disregard of the order of this Court should not be permitted to hold good. Although, it has been pleaded by the non-petitioner that he intends and undertakes to repay the loan but it remained only as a proper (sic. paper ?) promise. In the present case, I am satisfied that the apology tendered by the non-petitioner by way of reply is not an act of penitence, contrition or regret. I do not find any reason to accept the so called, apology tendered by the non-petitioner. paper ?) promise. In the present case, I am satisfied that the apology tendered by the non-petitioner by way of reply is not an act of penitence, contrition or regret. I do not find any reason to accept the so called, apology tendered by the non-petitioner. (5) In my considered opinion on the facts and circumstances of the case imposing of fine in lieu of imprisonment will not meet the ends of justice. Considering the facts and circumstances in their entirety in my opinion ends of justice would be served if the non-petitioner is held guilty under Section 12 of the Act and order the non-petitioner to undergo simple imprisonment for a term of three months. 10. Consequently, the contempt petition Is allowed. It is ordered that the non-petitioner Madanlal @ Madan Mohan would undergo simple imprisonment for a term of three months in accordance with Section 12 of the Contempt of Courts Act, 1971.Contempt Petition Allowed. *******