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2012 DIGILAW 753 (MP)

Sanman Singh v. Sumer Singh

2012-07-26

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2012
JUDGMENT Shrivastava, J. -- 1. By invoking the jurisdiction under section 19 of Contempt of Courts Act, 1971 (in short “the Contempt of Courts Act”) read with section 104(h) and order XLIII rule 1(r) of CPC the impugned order dated 1.9.2010 passed by learned Single Judge of this Court in M.C.C. No.59/09 holding that the appellant has violated the order dated 18.5.2006 passed in First Appeal No.270/2003, this appeal has been filed. 2. No exhaustive statement of facts is required to be narrated for the purpose of disposal, suffice it to say that in First Appeal No.270/2003, the following order was passed by the learned Single Judge of this Court on 18.5.2006 which reads thus : “18.5.2006 Shri U.K. Jain, learned counsel for the petitioner. Shri Praveen Newaskar, learned counsel for the respondents No.1 and 2. Shri D.D. Bansal, learned counsel for respondents No.4 and 5. Shri Bhagwan Pandey, learned counsel for respondent No.7. Heard on I.A. No.8276/06 which is an application for vacating the stay order and I.A. No.8277/06 which is an application under Order XXXIX rules 1 and 2 CPC, wherein prayer is made that appellant and respondents No.3, 4, 5, 7 to 12 be restrained from alienating the suit property and also not to raise any construction over the suit property. Counsel for appellant prays for time to file reply of the application. Reply be filed within four weeks. Till then appellant and respondents No.3 to 5 and 7 to 12 are restrained from selling any specific part of the property. C.C. as per rules.” 3. The first appeal was listed thereafter for hearing on 14.8.2006 before the learned Single Judge, on the aforesaid date the learned Single Judge ordered that order dated 18.5.2006 shall remain in operation till final disposal of the first appeal. It is curious to note that after having passed interim order on 18.5.2006 which was made absolute on 14.8.2006, the appellant by executing a registered sale-deed on 30.3.2007 sold part of the property of Survey No.291/5 to Narayan Singh Kushwaha. On bare perusal of the impugned order dated 1.9.2010, it is gathered that the appellant in his reply has admitted the factum of selling the suit property after passing of the interim order. The relevant averments raised by the appellant are reproduced as under : “4. On bare perusal of the impugned order dated 1.9.2010, it is gathered that the appellant in his reply has admitted the factum of selling the suit property after passing of the interim order. The relevant averments raised by the appellant are reproduced as under : “4. That, the answering non-applicant is a patient of Harniya and remains ill and is a retired Government servant who has retired in the year 1993, and generally remains ill and twice operated for Harniya and Gallbladder. Due to medical treatment and meet the family expenses of non-applicant No.1 he has to sale part of the land which is much less to his share. The area of the total land was 2.497 hectare which is approximately 13 Bighas and the share of answering non-applicant was 1/4, which comes to 3.5 Bighas of the land, while the total land sold by answering non-applicant was less than 1 Bigha and no specific share was sold by him. Hence, the answering non-applicant has not committed breach of injunction. The land sold to Narayan Singh was 20’x10’ on 1.4.2000, Kishori Lal area 20’x10’ on 1.5.2000, Dhanwanti 25’x25’ on 12.5.2000, Geeta Bai 15’x16’ on 17.5.2005, Sushila Bai area 235 sq.ft. on 15.6.2006 and Narayan Singh 261/2434 = 0.206 hectare on 30.3.2007. These all land are liable to be adjusted in the share of non-applicant No.2, which is even more left after adjusting the total area sold by non-applicant No.1. The filing of the application by the applicant and passing on the order on 18.5.2006 was not with in the knowledge of the non-applicant No.1 on that day, but it came to his notice when it was intimated by his counsel and filed the reply of the application for vacating stay in June 2006. The date of sale-deed in favour of Dhanvanti Bai is mentioned wrong, it is 1.4.2000. It is also denied that respondent No.3 has purchased the property of the having knowledge of the order dated 18.5.2006 and 14.8.2006.” 4. The date of sale-deed in favour of Dhanvanti Bai is mentioned wrong, it is 1.4.2000. It is also denied that respondent No.3 has purchased the property of the having knowledge of the order dated 18.5.2006 and 14.8.2006.” 4. On bare perusal of the stand taken by the appellant, we have no scintilla of doubt in our mind that by flouting the order of this Court dated 18.5.2006, which was affirmed and was made absolute on 14.8.2006 a part of the land of Survey No.291/5, which is a part of suit land was sold by appellant, and thus, clearly the order has been violated and there is a breach of the temporary injunction order. 5. Vehemently it has been submitted by Shri Jain, learned senior counsel for the appellant that the period of limitation to file contempt application is one year under section 20 of the Contempt of Courts Act from the date of the alleged act of violation of the order, however, we are of the view that although limitation under section 20 of the Contempt of Courts Act is one year, but under Article 215 of the Constitution of India since there is no period of limitation the action against the appellant can be taken. According to us, the jurisdiction of High Court to act as a Court of record is original jurisdiction, and therefore, if it has come in the notice of this Court that the order of this Court has been flouted by appellant by executing a sale-deed, under Article 215 of the Constitution of India necessary orders for punishment can be passed. If we keep section 20 of the Contempt of Courts Act in juxtaposition to Article 215 of the Constitution of India, it has become luminously clear like a noon day that section 20 of the Contempt of Courts Act is made applicable to all the Courts including the High Courts, but the power conferred under Article 215 of the Constitution of India is exclusively enjoyed by the High Court. If the order of any Court subordinate to the High Court is flouted or breached upon, an application under the Contempt of Courts Act can be filed praying to punish the contemners. If the order of any Court subordinate to the High Court is flouted or breached upon, an application under the Contempt of Courts Act can be filed praying to punish the contemners. According to us, this section would also be applicable to the High Court, but at the same time this Court is also having powers to punish the contemners under Article 215 of the Constitution of India and no period of limitation is prescribed for it. Thus, we are not having any scintilla of doubt in our mind that prescribed period of one year mentioned in section 20 of the Contempt of Courts Act cannot be made applicable to a case of contempt of High Court and Article 215 of the Constitution of India gives a supreme position to the High Courts compared to the lower Courts. 6. One important fact which cannot be marginalized and blinked away to decide this appeal is that the application of committing breach of temporary injunction order by the appellant was filed on 28.1.2009, the impugned sale-deed is dated 30.3.2007. Since application under Order XXXIX rule 2-A of CPC is filed the prescribed period of limitation would be three years under Article 317 of the Indian Limitation Act because there is no other specific period prescribed for filing application for the breach tof temporary injunction, and therefore, the residuary Article 137 of the Constitution would be applicable, if no period of limitation elsewhere provided the prescribed period of limitation would be three years from the date right to apply accrues. Since on 30.3.2007 the appellant sold the part of suit property of Survey No.295/1 any breach to the temporary injunction order which was made absolute by this Court on 14.8.2006 the period of limitation would commence from 30.3.2007, and therefore, within the prescribed period of limitation of three years as envisaged under Article 137 of Constitution of India the application which has been filed under Order XXXIX rule 2-A of CPC would within the time limit and within that period. The application of breach was filed before this Court on 28.1.2009, and thus, the application filed under Order XXXIX rule 2-A of CPC committing breach of temporary injunction order cannot be thrown out like a waste paper in a dustbin holding it to be a time barred application. 7. The application of breach was filed before this Court on 28.1.2009, and thus, the application filed under Order XXXIX rule 2-A of CPC committing breach of temporary injunction order cannot be thrown out like a waste paper in a dustbin holding it to be a time barred application. 7. According to us, the so-called apology is not an act of penitence, contrition or regret. It has been tendered as a ‘tactful move’ when the contemners are in the tight corner and with a view to ward off the Court. Acceptance of such apology in the case on hand would be allowing the contemners to go away with impunity after committing gross contempt of Court. In our considered opinion, on the facts and in the circumstances of the case, imposition of fine in lieu of imprisonment will not meet the ends of justice. But the learned Single Bench by taking a latitude stand has not sent the contemners behind the bars, but has simply punished the appellant No.1 directing him to pay fine of Rs.25,000/- (Rupees twenty five thousand). The learned Single Judge has rightly relied the decision of Supreme Court Patel Rajnikant Dhulabhai and others v. Patel Chandrakant Dhulabhai and others [ AIR 2008 SC 3016 ]. In para 69 of this decision the Supreme Court has held that the temporary injunction order was violated, and therefore, under rule 2-A of Order XXXIX of CPC and also under Article 129 of the Constitution of India the contemners had to undergo simple imprisonment for a period of two years. Article 219 of the Constitution of India speaks about Court of record including the power to punish for contempt of itself. The equivalent Article for High Court is 215 of the Constitution of India. 8. According to us, the aforesaid decision of the Supreme Court is squarely applicable in the present case. We may further held that learned Single Judge has already adopted quite lenient view and looking to the age of the appellant since he is in advance age of 75 years did not send him behind the bars and simply directed to pay a fine of Rs.25,000/- (Rupees twenty five thousand). This punishment cannot be said to be excessive rather lenient view has been taken. 9. Resultantly, this appeal fails and is hereby dismissed with costs. Counsel for Rs.1,000/- if pre-certified. ...........