JUDGMENT Hon'ble KOTHARI, J.— "A dad is some one who wants to catch you before you fall but instead picks you up, brushes you off, and lets you try again. A dad is someone who wants to keep you from making mistakes but instead lets you find your own way, even though his heart breaks in silence when you get hurt. A dad is someone who holds you when you cry, scolds you when you break the rules shines with pride when you succeed, and has faith in you even when you fail... Never forget your parents; they are the reason why you are and who you are." 2. A Jewish Proverb says:- "When a father gives to his son, both laugh; when a son gives to his father, both cry." 3. The present contempt petition is an unfortunate fight between father-Om Singh and his two sons; Dhirendra Singh and Narendra Singh and it is indeed a sad state of affairs that sons, particularly the elder son Dhirendra Singh has created all sorts of nuisance for his own father, Om Singh, for the portion of a property, which was admittedly constructed by the father only and who has spent his life as a civil contractor and despite directions of the Court and solemn undertaking given by the sons before the Court, they flouted the orders of the Court and the Undertaking given by them before the Court and, therefore, despite advice of the Court to settle the dispute between the parties out of the Court in view of the close relationship, on account of reticent attitude of respondent No.1 -Dhirendra Singh, the present contempt petition was argued by both the sides counsels on merits and is being disposed of by this order. 4. The present contempt petition was filed by the father-Om Singh for the alleged and deliberate disobedience by the respondent contemners of the interlocutory order passed by this Court in favour of the petitioner-father-Om Singh in the writ petition No. 8449/2009 (Om Singh vs. Dhirendra & Anr.) on 13.11.2009, which is quoted below for ready reference. 4. The present contempt petition was filed by the father-Om Singh for the alleged and deliberate disobedience by the respondent contemners of the interlocutory order passed by this Court in favour of the petitioner-father-Om Singh in the writ petition No. 8449/2009 (Om Singh vs. Dhirendra & Anr.) on 13.11.2009, which is quoted below for ready reference. "The learned counsel for the petitioner submits that after the TI order was passed on 2.6.2007 in which the learned trial court has granted temporary injunction only to the extent that the defendant-father was restrained from transferring or alienating the suit property in question, the plaintiff-respondents (sons) have locked bathroom, latrine and Pooja room which were being used by the defendant-petitioner. He submits that after the decision of this Court on 3.7.2008 by which the order for temporary injunction was modified to the extent that the present petitioner-father shall be at liberty to undertake repair of the property situated at plot No. 8-9, Nagaur Road, Baori, Jodhpur and earned monthly income out of that, his residential house continued to be the same suit premises and the plaintiffs-respondents have changed the status-quo by locking the said bathroom, latrine and "Pooja" room in the said house. This contention is opposed by the learned counsel for the plaintiffs who submitted that the petitioner-defendant is residing in a separate independent house and therefore, cannot be permitted to have said locks opened or interfere in peaceful possession of independent property of the respondents-plaintiffs. Since this writ petition is pending and both the parties are represented, the writ petition be listed for final hearing in the month of December, 2009. By way of interim relief, it is directed that the respondents-plaintiffs shall open the locks of latrine, bathroom and Pooja Room in the said property for use by the defendant-petitioner forthwith and shall maintain status-quo thereafter and permit use of these parts of the premises to the petitioner-father uninterruptedly. Put up on 8.12.2009." 5. The writ petition No. 8449/2009 was filed by the petitioner father-Om Singh himself challenging the temporary injunction granted by the civil court against him in a partition suit filed by the plaintiffs sons, Dhirendra and Narendra and the learned trial Court of Addl. District Judge No. 3, Jodhpur vide order dated 2.6.2007 in civil misc. case No. 32/2007 (Dhirendra & Anr. District Judge No. 3, Jodhpur vide order dated 2.6.2007 in civil misc. case No. 32/2007 (Dhirendra & Anr. vs. Om Singh) while rejecting the temporary injunction application filed by the plaintiff sons, however, still invoking the inherent powers under Section 151 CPC restrained the defendant-father from alienating the residential house in question and directed both the parties to maintain status quo of the same. The operative portion of the said order dated 2.6.2007 is reproduced hereunder: ^^12- mijksDr foospu ds vk/kkj ij izkFkhZx.k }kjk izLrqr izkFkZuk i= vUrxZr vkns'k 39 fu;e 1 o 2 lhihlh [kkfjt fd;k tkrk gS] ijUrq foi{kh dks flfoy izfØ;k lafgrk dh /kkjk 151 dh 'kfDr;ka dk mi;ksx djrs gq, rkQSlyk ewy okn ikcUn fd;k tkrk gS fd og vuqlwph ^^v** esa of.kZr vU; fdlh lEifr dk vc dksbZ cSpku] gLrkUrj.k vkfn U;k;ky; dh vuqefr izkIr fd;s fcuk ugha djs rFkk nksuksa i{kdkjku dks ikcUn fd;k tkrk gS] fd os fookfnr lEifr;ksa dh ;FkkfLFkfr dk;e j[ksA okn i= ds lkFk layXu vuqlwph ^^c** ds lUnHkZ esa dksbZ izkFkZuk izkFkhZx.k us nkSjkus cgl ugha dh gS] vr% ml lUnHkZ esa izkFkhZx.k dk izkFkZuk i= vLohdkj fd;k tkrk gSA** 6. Against this aforesaid order of Addl. District Judge, Jodhpur dated 2.6.2007, both the parties approached this Court also, father-Om Singh by way of SBCWP No. 3553/2007 (Om Singh vs. Dhirendra & Anr.) and plaintiff son-Dhirendra Singh by way of SBC Misc. Appeal No. 1300/2006 (Dhirendra & Anr. vs. Om Singh & Ors.) and both these cases came to be disposed of by this Court on 3.7.2008 by the following order: "1. S.B. Civil Writ Petition No. 3553/2007 Om Singh vs. Dherendra & Anr. 2. S.B. Civil Misc. Appeal No. 1300/2006 Dhirendra & Anr. vs. Om Singh & Ors. Date of order 3rd July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J. Gehlot, for the petitioner. Mr. J.K. Bhaiya for the respondents. 1. Heard learned counsels. 2. This writ petition is directed against the order dated 2.6.2007 passed by the learned trial court under Order 39 Rule 1 and 2. It is dispute of partition and possession between sons and the father. The petitioner Om Singh is father and the partition suit has been filed by the sons Shri Dhirendra and Narendra. The suit is still pending. This writ petition is directed against the order dated 2.6.2007 passed by the learned trial court under Order 39 Rule 1 and 2. It is dispute of partition and possession between sons and the father. The petitioner Om Singh is father and the partition suit has been filed by the sons Shri Dhirendra and Narendra. The suit is still pending. This writ petition under Article 227 of the Constitution of India has been filed against the order dated 2.6.2007 whereby the learned trial court directed the parties to maintain the status quo of the suit property during the pendency of the suit. 3. The learned counsel for the petitioner-defendant Mr. J. Gehlot submits that on account of old age of the defendant Shri Om Singh being 66 years of age, he has no regular source of income as he did not retire from any government job but did a work as Contractor. He, therefore, prays for modification of the said TI order passed by the learned trial court to the effect of the property situated at plot No. 8 and 9, Nagaur Road, Bawari, Jodhpur, may be permitted to repair and leased out to tenants, so that he can earn rental income for his old age in the evening of his life, subject to decision of the suit. 4. Learned counsel for the respondents, however, opposed these submissions and prays for maintaining of the status quo during the pendency of the suit. 5. Considering the submissions made at the Bar and looking to the facts and circumstances of the case, the impugned order dated 2.6.2007 is modified to the extent that the petitioner-defendant Shri Om Singh shall be at liberty to undertake repairs of the property situated at plot No. 8 and 9, Nagaur Road, Bawari, Jodhpur and also shall be entitled to earn rental income out of the suit property. The order of status quo passed by the learned trial court is modified to this extent only. In respect of other properties and except modification indicated above, the said order is not interfered with. 6. The writ petition is accordingly disposed of. No order as to costs. 7. Accordingly, the Civil Misc. Appeal No. 1300/2006 is also disposed of." 7. The order of status quo passed by the learned trial court is modified to this extent only. In respect of other properties and except modification indicated above, the said order is not interfered with. 6. The writ petition is accordingly disposed of. No order as to costs. 7. Accordingly, the Civil Misc. Appeal No. 1300/2006 is also disposed of." 7. Thereafter, the present petition, father-Om Singh filed the present writ petition No. 8449/2009 (Om Singh vs. Dhirendra & Anr.) challenging the order dated 10.8.2009 passed on an application filed by the defendant-father, Om Singh, under Order 39 Rule 7 CPC with the following observations:- ^^11- mijksDr leLr foospu ds vk/kkj ij eSa bl fu"d"kZ ij igqapk gwa fd bl U;k;ky; }kjk fnukad 2-6-07 dks nksuksa i{kdkjku dks oknxzLr lEifr dh ;FkkfLFkfr cuk;s j[kus gsrq vkns'k ikfjr fd;k x;k vkSj bl vkns'k dh ekuuh; mPp U;k;ky; }kjk iqf"V dh xbZ gSA vr% mijksDr rF;ksa o ifjfLFkfr;ksa dks ns[krs gq, oknxzLr lEifr esa yxs gq, rkys [kqyokus ds laca/k esa izkFkhZ ds i{k esa iqfyl benkn fnyk;k tkuk U;k;ksfpr ugha gS D;ksafd ,slk fd;s tkus ls] bl U;k;ky; }kjk ;FkkfLFkfr cuk;s j[kus ds vkns'k esa ifjorZu djuk gksxkA vr% mijksDrkuqlkj izkFkhZ dk izkFkZuk i= /kkjk 151 lhihlh [kkfjt fd;s tkus ;ksX; gSA vkns'k vr% izkFkhZ izfroknh la- 1 dh vksj ls izLrqr izkFkZuk i= vUrxZr /kkjk 151 lhihlh o vizkFkhZ-oknhx.k dh vksj ls izLrqr izkFkZuk i= vkns'k 39 fu;e 7 lhihlh [kkfjt fd;s tkrs gSaA** 8. In the present writ petition, an interim order came to be passed after hearing both the parties by this Court on 13.11.2009, out of which the present contempt petition arises, which is quoted above, in para 4 of this order. 9.The notices were issued in the present contempt petition on 11.12.2009 and after service of notices, different coordinate benches of this Court passed detailed orders in the present contempt petition No.535/2009 in favour of the petitioner-father and it is found relevant to quote these orders as well. (i) Order dt: 23.12.2010 "S.B.C. Misc. Contempt Petition No. 535/2009 In S.B. Civil Writ Petition No. 8449/2009 Date of Order 23.12.2010 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. J. Gehlot, for Petitioner. Mr. J.K. Bhaiya, for the respondents. On 13.11.2009, as an interim relief the respondents were directed to open locks of latrine, bathroom and Pooja Room situated in the property in question for the use by the defendant-petitioner. JUSTICE GOVIND MATHUR Mr. J. Gehlot, for Petitioner. Mr. J.K. Bhaiya, for the respondents. On 13.11.2009, as an interim relief the respondents were directed to open locks of latrine, bathroom and Pooja Room situated in the property in question for the use by the defendant-petitioner. A direction was further given to maintain status quo thereafter with permission for use of the amenities mentioned above by the petitioner. It is submitted that compliance of the order aforesaid is not made. While controverting the submission aforesaid, it is submitted by learned counsel for the respondent that a compliance of the order has been made and all the amenities are open for the use by the petitioner. Having considered the disputed facts, I deem it appropriate to appoint a Commissioner to examine the factual position. On request of the Court Shri Pankaj Mehta, Advocate of this Court has accepted to be a Commissioner to examine the factual position of the disputed site. Shri Mehta submits that he will visit the site tomorrow at 11.00 a.m. and submit his report to this Court on or before the next date i.e. 3.1.2011. The expenses of the Commissioner in a tune of Rs. 2200/- shall be borne by both the parties with equal share. The renumeration shall be paid to the Commissioner appointed the course of the day. Learned counsel for the respondent is directed to supply a copy of relevant record to Shri Pankaj Mehta forthwith. Put up on 3.1.2011. Sd/- (Govind Mathur), J." (ii) Order dt. 26.7.2011:- "S.B. Civil Contempt Petition No. 535/2009 (Om Singh vs. Dhirendra & Another) Date of Order : July 26, 2011. PRESENT HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. J. Gehlot for the Petitioner. Mr. J.K. Bhaiya for the respondents. BY THE COURT: The writ petition, being S.B. Civil Writ Petition No. 8449/2009, was filed by the petitioner against order dated 10.8.2009 passed by Addl. Sessions Judge No. 3, Jodhpur upon application filed under Section 151, C.P.C. by the petitioner, whereby, application filed by the petitioner for providing police aid and open the locks of disputed property was rejected. BY THE COURT: The writ petition, being S.B. Civil Writ Petition No. 8449/2009, was filed by the petitioner against order dated 10.8.2009 passed by Addl. Sessions Judge No. 3, Jodhpur upon application filed under Section 151, C.P.C. by the petitioner, whereby, application filed by the petitioner for providing police aid and open the locks of disputed property was rejected. The co-ordinate Bench of this Court passed order dated 13.11.2009, whereby, following order was made: "By way of interim relief, it is directed that the respondents-plaintiffs shall open the locks of latrine, bathroom and Pooja Room in the said property for use by the defendant-petitioner forthwith and shall maintain status-quo thereafter and permit user of these parts of the premises to the petitioner-father uninterruptedly." In pursuance of the above direction, locks of latrine; bathroom and Pooja Room of the property were to be opened by the respondents but, by way of filing the instant contempt petition, it is prayed that in spite of the order passed by this Court, non-petitioners are not making compliance of the order passed by this Court. After filing reply by the respondents, commissioner was appointed. Learned counsel for the non-petitioners submits that they are making compliance of the order which is evident from the report of the commissioner. Learned counsel for the petitioner submits that the day on which the property was inspected by the commissioner, on that day, the locks of latrine, bathroom and Pooja Room were opened; but, thereafter, again the non-petitioners but locks on the said parts of the premises and respondents are still not allowing the petitioner to use the said parts of the premises, therefore, it is a case of willful disobedience of the order passed by this Court. Learned counsel for the non-petitioners however submits that no non-compliance of the order has been made by the non-petitioners. After hearing learned counsel for the petitioner, I have ascertained correct facts from the petitioner Om Singh who is father of non-petitioners No. 1 and 2 in the Court. The petitioner-father of non-petitioners No. 1 and 2, with very sad feelings, submits that the property belongs to him and both non-petitioners are his sons but they are repeatedly assaulting him and his wife and other family members and creating very bad atmosphere in the house. The petitioner-father of non-petitioners No. 1 and 2, with very sad feelings, submits that the property belongs to him and both non-petitioners are his sons but they are repeatedly assaulting him and his wife and other family members and creating very bad atmosphere in the house. So also, they are not allowing him and his wife to use latrine, bathroom and Pooja Room inspite of the orders passed by this Court on 13.11.2009. Learned counsel for the non-petitioners, Mr. J.K. Bhaiya submits that the non-petitioners are not raising any obstruction in the user of the said parts of the property by the petitioner or his wife, however, the petitioner may be directed to open the door which is situated in the middle of the house. After perusing the order impugned, so also, order dated 13.11.2009 passed by the co-ordinate Bench and considering the prayer made by the petitioner, father of the non-petitioners No. 1 and 2, I am of the opinion that it is a case of gross disobedience on the part of the non-petitioners because they are not only putting locks upon the premises but they are making attempt to assault the petitioner who is their father inspite of the fact that the property belongs to the father. In this view of the matter, I deem it just and proper to direct the Station House Officer, Police Station Mahamandir (Jodhpur) to provide police aid to the petitioner and if locks are there on the doors of latrine, bathroom and Pooja Room they shall be opened. Further, the said police official shall ensure that upon any complaint received from the petitioner with regard to user of latrine, bathroom and pooja-room in the property by him and his wife or any complaint of assault by the non-petitioners, appropriate legal action may be taken against the non-petitioners. A copy of this order be sent to the Deputy Commissioner of Police, Jodhpur Metropolitan for ensuring compliance. List the case on 10.8.2011. Sd/- (Gopal Krishan Vyas) J. (iii) Order dt. 21.10.2011 "Date of Order : 21.10.2011 HON'BLE MR. JUSTICE SANGEET LODHA Mr. J. Gehlot, for the petitioner. Mr. J.K. Bhaiya, for the respondent. Mr. Ashok Prajapat, Dy. Govt. Advocate. Mr. Ashok Prajapat, Deputy Govt. Advocate has produced the report of SHO, P.S. Mahamandir, Jodhpur depicting the present factual position existing at the site. The report is take on record. 21.10.2011 "Date of Order : 21.10.2011 HON'BLE MR. JUSTICE SANGEET LODHA Mr. J. Gehlot, for the petitioner. Mr. J.K. Bhaiya, for the respondent. Mr. Ashok Prajapat, Dy. Govt. Advocate. Mr. Ashok Prajapat, Deputy Govt. Advocate has produced the report of SHO, P.S. Mahamandir, Jodhpur depicting the present factual position existing at the site. The report is take on record. Put up on 14.11.2011 as jointly prayed. Sd/- (Sangeet Lodha), J." (iv) Order dated 14.11.2011 "Date of order November 14, 2011 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. J. Gehlot for the petitioner. Mr. M.A. Bhurat, Counsel for the State. In pursuance of the directions issued to the Public Prosecutor Mr. M.A. Bhurat, the S.H.O., Police Station Maha Mandir (Jodhpur) Mr. Kan Singh Bhati is present before the Court and submits that although the earlier directions issued by this Court were compliance with and even if now any grievance remains with the petitioner, then, he can approach the Police Station for the purpose of redressal of his grievance and compliance of the order dated 26.7.2011. It is also assured by the S.H.O. that compliance of the order dated 26.7.2011 shall be made in toto and appropriate action will be taken in accordance with law. Upon the above assurance, the matter is ordered to be listed after six weeks. In the meanwhile, the petitioner shall be allowed facilities as ordered by this Court and compliance report shall be made after six weeks. Sd/- (Gopal Krishan Vyas), J." (v) Order dated 17.2.2012 "Date of Order : 17.2.2012 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. J. Gehlot, for the petitioner. Mr. Vinay Chipa, for the respondents. Learned counsel for the petitioner submits that inspite of the order passed by this Court, SHO, Police Station Mahamandir, Jodhpur is not taking action for the purpose of compliance of the order dated 26.7.2011 and 14.11.2011 passed in this contempt petition. In this view of the matter, a copy of the order dated 26.7.2011 and 14.11.2011 may be sent to Asstt. Commissioner of Police, Jodhpur for giving instruction to the SHO, Police Station Mahamandir to comply the order passed by this Court otherwise appropriate action may be taken against him. List after two weeks. Sd/- (Gopal Krishan Vyas), J." (vi) Order dated 20.3.2013 "Date of order 20.3.2013 HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J. Gehlot, for the petitioner. Mr. Sajjan Singh, for the respondents. Mr. List after two weeks. Sd/- (Gopal Krishan Vyas), J." (vi) Order dated 20.3.2013 "Date of order 20.3.2013 HON'BLE DR. JUSTICE VINEET KOTHARI Mr. J. Gehlot, for the petitioner. Mr. Sajjan Singh, for the respondents. Mr. Dhirendra, Narendra, Respondents present in person. The respondent Dhirendra Singh S/o Sh. Om Singh, Narendra Singh S/o Sh. Om Singh are present in person. They are sons of petitioner-defendant Om Singh. Despite series of orders passed by different benches of this Court, nuisance from the side of respondents-sons continues, which is indeed unfortunate. Therefore, the parties were summoned in this Court. After some interaction with them, upon instructions and in their presence, the respondent Dhirendra Singh and Narendra Singh undertake to handover the vacant and peaceful possession of portion of the house in their occupation within 15 days to the petitioner-father Sh. Om Singh Gehlot. It is made clear that no further time beyond 15 days from today shall be granted for handing over peaceful and vacant possession to the petitioner father Sh. Om Singh Gehlot. Put up on 5.4.2013 along with S.B. Civil Writ Petition No. 8449/2009. Sd/- (Dr. Vineet Kothari), J." 10. Against the last interlocutory order passed by this Court on 20.3.2013, with the change of counsel for the respondents sons, an application for modification of the said order dated 20.3.2013 was filed on behalf of the respondent sons on 29.3.2013 and also an appeal before the Division Bench of this Court was filed on 4.4.2013, though prima facie against such interlocutory/order, unless the person is convicted under law, no such appeal lies under Section 19 of the Contempt of Court Act, 1971. 11. Section 19 of the Contempt of Courts Act, 1971 reads as under:- "19. Appeals (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. (2) Pending any appeal, the appellate court may order that- (a) the execution of the punishment or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2). (4) An appeal under sub-section (1) shall be filed- (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against." 12. The Division of this Court initially granted ad interim order in favour of the respondent sons, the appellants before the Division bench, on 5.4.2013, but later on dismissed the Special Appeal itself vide order dated 10.4.2013, which orders are also quoted below for ready reference:- (i) Order dated 5.4.2013 D.B. Civil Special Appeal (Writ) No. 147/2013 Dhirendra & Anr. vs. Om Singh Date of Order : 5th April, 2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE V.K. MATHUR Mr. M.C. Bhoot, Sr. Counsel assisted by Mr. Arpit Bhoot & M. Surendra Singh, for Appellants. Heard learned counsel for appellants. Learned counsel for the appellants submitted that an interim order was passed by Single Bench on 13th November, 2009, in S.B. Civil Writ Petition No.8449/2009, whereby plaintiffs/respondents (Present appellants) were directed to open the locks of latrine, bathroom and pooja room of the property in dispute for use by the defendants forthwith and thereafter status quo was ordered to be maintained. Learned counsel for appellants further submitted that as per direction of learned Single Judge, the locks of latrine, bathroom and pooja room were opened and order was complied with, but still an order has been passed by learned Single Judge in contempt proceedings, widening the scope of contempt, to hand over the possession of the property in dispute. He further submitted that present appeal is directed against the order dated 20th March, 2013 passed by Single Bench. Appellants have filed an application for modification of order dated 20.3.2013 on 29.3.2013. He further submitted that present appeal is directed against the order dated 20th March, 2013 passed by Single Bench. Appellants have filed an application for modification of order dated 20.3.2013 on 29.3.2013. The said application for modification of the order was listed before the Single Bench on 2nd April, but learned Single Judge refused to hear the application and without giving any opportunity of hearing dictated the order that the appellants may be taken into custody and they will be produced before the Court under custody on 5th April, 2013. He also submitted that learned Single Bench called the Guards, but since appellants were not present, therefore, they were not arrested. Learned counsel further submitted that although the order was passed in his presence, but he has not received copy of the order, therefore, he is unable to produce the same. Issue notice to respondent, returnable on 10th April, 2013. Learned counsel for appellants is directed to serve a copy of this memo of appeal upon Mr. J. Gehlot, Advocate, who is appearing before Single Bench on behalf of the respondent and registry is directed to show his name in the cause list. Parties are directed to appear in person on the next date. Learned counsel for appellants will inform the opposite counsel about the order of this Court. List on 10th April, 2013. Till then, further proceedings before Single Bench in S.B. Civil Contempt Petition No.535/2009 shall remain stayed. Sd/- (V.K. Mathur), J. Sd/- (Narendra Kumar Jain), J." (ii) Order dated 10.4.2013 "D.B. Civil Special Appeal (Contempt) No. 147/2013 in S.B. Civil Contempt a Petition No. 535/2009 Dhirendra & Anr. vs. Shri Om Singh Date of Order : 10th April, 2013 Hon'ble Mr. Justice Narendra Kumar Jain Hon'ble Mr. Justice Mahendra Maheshwari Mr.M.C. Bhoot, Sr. Counsel assisted by Mr. Surendra Singh and Mr. Arpit Bhoot, for Appellants. Mr. D.K. Parihar with Mr. J. Gehlot for respondent. Both appellants-Dhirendra and Narendra are present in person along with their counsel Shri M.C. Bhoot, Sr. Advocate assisted by Mr. Surendra Singh and Mr. Arpit Bhoot. Shri Om Singh- respondent present in person along with his counsel Shri D.K. Parihar and Shri J. Gehlot. I.A. No. 3378/2013 is allowed. The filing of certificate copy of order under challenge is dispensed with. Advocate assisted by Mr. Surendra Singh and Mr. Arpit Bhoot. Shri Om Singh- respondent present in person along with his counsel Shri D.K. Parihar and Shri J. Gehlot. I.A. No. 3378/2013 is allowed. The filing of certificate copy of order under challenge is dispensed with. This Special Appeal is directed against order of Single Bench dated 20th March, 2013 read with order dated 2nd April, 2013, Copy of order dated 2nd April, 2013 was not placed on record along with appeal. Today, learned counsel for respondent has produced the certified copy of the order dated 2nd April, 2013, which is taken on record. It shows that on that day, the case was adjourned for orders on 5th April, 2013 on I.A. No. 1730/2013. From the submissions of learned counsel for the parties and the order dated 2rd April, 2013. It is clear that there is no order for calling the Guard and arresting the appellants during the pendency of contempt petition and further that application for modification of the order impugned in this appeal, is pending before Single Bench. In these circumstances, we are not inclined to admit this Special Appeal and the same is, accordingly, disposed of However, it is observed that during the pendency of the contempt petition as well as application for modification of the order dated 20th March, 2013 passed by Single Bench in Contempt Petition No. 535/2009, no order of punishment against contemnors/respondents will be passed on interim basis. However, it will be open to pass final order by Single Bench, in accordance with law. Learned counsel for both the parties have assured that they will sit together and will make an effort for compromise in the main suit itself. It is needless to mention that in case, there is any harassment or beating etc. by appellants with their father-Om Singh respondent who is directed to see that proper protection in all respect is provided to respondent-Om Singh. Shri G.R. Punia, Additional Advocate General is present in person. He is directed to inform the SHO Police Station Mahamandir, Jodhpur, in this regard. The Stay Application No. 2663/2013 also stands disposed of. Parties and directed to appear before Single Bench on 25th April, 2013. Registry is directed to list S.B. Civil Contempt Petition No. 535/2009 before concerned Bench having roster. Sd/- (Mahendra Maheshwari), J. Sd/- (Narendra Kumar Jain), J." 13. The Stay Application No. 2663/2013 also stands disposed of. Parties and directed to appear before Single Bench on 25th April, 2013. Registry is directed to list S.B. Civil Contempt Petition No. 535/2009 before concerned Bench having roster. Sd/- (Mahendra Maheshwari), J. Sd/- (Narendra Kumar Jain), J." 13. Accordingly, the arguments on the application for modification of the order dated 20.3.2013 as well as on the contempt petition were head by this Court at length. 14. Let first the application for modification, namely S.B. Civil Misc. Application No. 1730/2013 in S.B. Civil Contempt Petition No. 535/2009 in SBCWP No. 8449/2009 be taken up for orders. 15. By this application, the respondent applicants-sons have stated that the order dated 20.3.2013 was passed to handover the vacant and peaceful possession of the portion of the house in their occupation within 15 days to their father Shri Om Singh and accordingly these applicants sons stated that the said portion was handed over to the petitioner father, therefore, the order dated 20.3.2013 may be modified. The averments made in para 2 onwards in the said application I.A. No. 1730/2013 signed by their previous advocate Shri Sajjan Singh are as follows:- "2. That it is an admitted position that the respondent No. 2 is not residing in the house named "Shanti Bhawan" but he is residing at Khokhariya Bera, Mandore, Jodhpur. As such, so far as the present dispute is concerned, he is not at all involved. The humble respondent No.1- applicant complied with the order forthwith but unfortunately due to the litigation, the petitioner filed the present contempt petition alleging that the order is not complied with by the respondent-applicant No.2 has nothing to do with the disputed latrine, bathroom and the pooja room. 3. That in the above circumstances, a disputed question of fact was raised and this Hon'ble Court was pleased to appoint Shri P.R. Mehta, advocate as a commissioner in order to resolve the dispute by order dated 23rd Dec., 2010 and Shri P.R. Mehta, advocate inspected the site on 24th Dec., 2010 and submitted report to the effect that no locks are there on the disputed latrine, bathroom and the pooja room. He has also categorically stated that the petitioner has his own "modern toilet" in his portion. 4. He has also categorically stated that the petitioner has his own "modern toilet" in his portion. 4. That it is submitted with all respect that the petitioner again raised a false dispute before this Hon'ble Court on 26.7.2011 that the respondents' sons are repeatedly assaulting him and his wife and other family members and this Hon'ble Court was pleased to direct the police authorities to look into the matter. The Station House officer, Police Station, Mahamandir, Jodhpur inspected the site on 19.10.2011 and submitted report through the Deputy Government Advocate with a sketch map categorically saying that there are no locks. The inspection was made in presence of the petitioner but he refused to sign the report. 5. That looking to the nature of the dispute, this Hon'ble court in order to settle the dispute regarding the use of latrine, bathroom and pooja room permanently and it was thought it proper that latrine, bathroom and pooja room may be handed over to the petitioner during pendency of the litigation and with that object in mind decided on 20th March, 2013 that the humble respondents-applicants should vacate the disputed site and both the humble applicants respondents were directed to handover the vacant and peaceful possession of portion of the house in their occupation within 15 days to the petitioner-father Shri Om Singh Gehlot and the humble respondents-applicants were asked to give undertaking to that effect. The respondents-applicants obeyed the order by giving the undertaking. Certified copy of the order dated 20th March, 2013 is submitted herewith and marked as Exhibit-A. 6. That the humble respondents-applicants are submitting herewith sketch map of the house of the ground floor and marked as Exhibit-B. The respondent No.1 is residing with his family in the ground floor and the first floor of his portion marked "ABCDEF" in the sketch map. It is submitted with all respect that this Hon'ble Court with an anxiety to provide free access to latrine, bathroom and the pooja room rightly thought it proper that the dispute can only be resolved if the portion marked "ABCDEF" is vacated by the humble respondents-applicants so that the latrine, bathroom and the pooja room may remain in exclusively possession of the petitioner. The humble respondent-applicant No.1 has now shifted with his family in first floor. The humble respondent-applicant No.1 has now shifted with his family in first floor. The portion marked as "ABCDEF" is lying vacant and the humble applicant No. 1 has requested the petitioner to put his lock from inside at the door marked "X". Under such circumstances, the humble respondents can not enter in the portion ABCDEF and the petitioner will be free to use the latrine, bathroom and the pooja room. Since the petitioner requires only latrine, bathroom and the pooja room, the respondent No.1 has put his locks on the vacant room, kitchen and store as the room, kitchen and store has been kept vacant only to keep his exclusive possession. 7. That under such circumstances, the grievance of the defendant-petitioner stood completely satisfied and the object and the anxiety of this Hon'ble Court to settle raised dispute by the petitioner, it is submitted with all respect, unnecessarily now stands completely satisfied and hence, it will be in the interest of justice and to do the complete justice to the parties that the order dated 20th March, 2013 may kindly be suitably modified. PRAYEER It is, therefore, most respectfully and humbly prayed that this application may kindly be allowed and in the interest of justice, this Hon'ble Court will be pleaded to modify the order dated 20th March, 2013 as submitted above (How ??) Any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the humble respondents/applicants. Humble Respondents/Applicants Through Sd/- (Sajjan Singh) Counsel for the respondents" 16. The aforesaid application dated 29.3.2013 was strongly opposed by learned counsel for the petitioner, Mr.J. Gehlot by filing a detailed reply to the application before this Court on 4.4.2013. The following averments have been made in the said reply filed by the learned counsel for the petitioner: "3. The facts mentioned in para No. 3 are admitted to the extent of appointment of commissioner, but the report of commissioner was denied by petitioner because the locks on said items are not open till today due to possession of said items are with the respondent Dhirendra the petitioner having no modern toilet. 4. The facts mentioned in the para No. 4 are denied. The SHO Mahamandir sent a faise report to the Hon'ble Court collusion with respondent Dhirendra. 5. 4. The facts mentioned in the para No. 4 are denied. The SHO Mahamandir sent a faise report to the Hon'ble Court collusion with respondent Dhirendra. 5. The order passed by Hon'ble Court dated 20.3.2013 just and proper and there is no need to modify the same. 6. The facts mentioned in para No. 6 of the application are denied. The respondent Dhirendra continuously disobeyed the order of Hon'ble Court and broken the lock of the petitioners under ground and stolen the articles and put up his new lock on the under ground. The petitioner filed FIR on 29.3.2013 before SHO Mahamandir but the SHO lodge FIR of petitioner but did not turn up/did not came on spot the petitioner taken photograph of new lock. The respondent till filing the reply did not hand over the possession of any part of house did not offer for possession and file this application with malafide intention. The copy of FIR and photograph are enclosed as Ann. 25 and Ann. 26. 7. The facts mentioned in para No. 7 are denied and order dated 20.3.2013 cannot be modified. It is, therefore, prayed that the application of respondent modification of order dated 20.3.2013 is dismiss with cost and respondent be punished for continuous disobeying the order dated 20.3.2013 of Hon'ble Court." 17. 25 and Ann. 26. 7. The facts mentioned in para No. 7 are denied and order dated 20.3.2013 cannot be modified. It is, therefore, prayed that the application of respondent modification of order dated 20.3.2013 is dismiss with cost and respondent be punished for continuous disobeying the order dated 20.3.2013 of Hon'ble Court." 17. The petitioner father was also required to file an FIR before SHO, Police Station, Mahamandir on 29.3.2013, which is also extracted below for ready reference:- ^^Jheku Fkkukf/kdkjh] iqfyl Fkkuk] egkefUnj] tks/kiqjA fjiksVZ ntZ djus eSa vkseflag iq= Lo- Jh gtkjhyky th] tkfr xgyksr fuoklh IyksV uEcj 16] 'kkafr Hkou] ukxkSjh xsV ds ckgj tks/kiqj fjiksVZ ,d djrk gwa esjk dCtk lqn edku ds v.Mj xzkm.M ¼Hkqjk½ ij esjk rkyk yxk gqvk FkkA ftlds /khjsUnz iq= vkseflag o jkts'k ifRu /khjsUnz flag us 28-3-2013 dh jkf= dks rksM+ fn;k o mlds vUnj j[kk esjk lkeku crZu] diM+s] xSl HkV~Vh vkSj x`gLFkh dk vU; lkeku pksjh dh fu;r ls pqjkdj ys x;s vkSj viuk u;k rkyk yxk fn;kA esjs }kjk iqNus ij dgk fd cw<s rsjh ekSr vk;h gS eSa edku [kkyh ugha d:axk dksVZ ds ,sls dbZ vkns'k ns[ks gSA ,slk mlds ekuuh; mPp U;k;ky; ds vkns'k 20-3-2013 dh ikyuk ugh djus ds mn~ns'; ls fd;kA eSa izksLVªsV dk ejht gwa bl dkj.k fjiksVZ djus esa nsjh gqbZ fjiksVZ dj fuosnu gS fd /khjsUnz oxSjkg ds fo:) dkuwuh dk;Zokgh djkosaA fnukad 29-3-2013 vkseflag eks-ua- 9414475910** 18. Despite all these proceedings and orders of this Court in the present contempt petition to restore peace between the close relatives, the respondent contemner No. 1- Dhirendra seems to have taken the Court process for a ride and in an absolutely callous and casual manner, to avoid the compliance of the directions of this court. It may be pointed out here that the order dated 20.3.2013 passed by this Court, which was challenged before the Division Bench only recorded an Undertaking of the respondents Dhirendra Singh and Narendra Singh to handover the vacant and peaceful possession of the portion of the house in their occupation within 15 days to petitioner-father Om Singh. It may be pointed out here that the order dated 20.3.2013 passed by this Court, which was challenged before the Division Bench only recorded an Undertaking of the respondents Dhirendra Singh and Narendra Singh to handover the vacant and peaceful possession of the portion of the house in their occupation within 15 days to petitioner-father Om Singh. It was not a direction of the Court on its own but the order merely recorded on an undertaking of the respondents, who were present in the Court and upon their instruction which was given in the background of the previous orders passed by the different coordinate benches of this court. It is this solemn Undertaking of the respondents from which they want to wriggle out by filing the present application for modification and also the Division Bench appeal, which was dismissed on 10.4.2013, as aforesaid. 19. Thus, it is clear that the conduct of the respondent contemners is not above board and they are trying to avoid not only the previous directions of this Court but the undertaking given by themselves to hand over the vacant and peaceful possession of the portion of the house in their occupation, namely both the ground floor and first floor of the house entirely constructed by the petitioner father & in another portion of which he lives. This disobedience and non compliance on the part of respondent contemners still continues even today, despite sufficient time granted to the parties to amicably settle the dispute and the learned counsels were also requested to use their good offices for this purpose and for which efforts were also made but unfortunately the dispute could not be resolved amicably and, therefore, it was so recorded by this Court on 10.5.2013 that there is no possibility of compromise between the parties and, therefore, the contempt petition may be argued on merits and consequently the arguments were heard today. The order dated 10.5.2013 is also quoted below:- "S.B. Civil Contempt Petition No. 535/2009 in S.B. Civil Writ Petition No. 8449/2009 Om Singh vs. Dhirendra & Anr. Date of order: 10.5.2013 Hon'ble Dr. Justice Vineet Kothari Mr. J. Gehlot, for the petitioner. Mr. M.C. Bhoot, Sr. Advocate assisted by Mr. Surendra Singh, for the Respondents. The learned counsel for the petitioner Mr. Date of order: 10.5.2013 Hon'ble Dr. Justice Vineet Kothari Mr. J. Gehlot, for the petitioner. Mr. M.C. Bhoot, Sr. Advocate assisted by Mr. Surendra Singh, for the Respondents. The learned counsel for the petitioner Mr. J. Gehlot submitted that there is no possibility of compromise between the parties- father and sons and therefore, the contempt petition deserves to be heard on merits. The learned counsel for the respondents Mr. M.C. Bhoot, however, submitted that once the compromise talks were held, however, later on, the petitioner father Mr. Om Singh has withdrawn from the same, but according to him, there is still possibility of compromise between the parties. In view of aforesaid, list the matter for arguments on contempt petition No. 14.5.2013 as prayed. Sd/- (Dr. Vineet Kothari)" 20. In view of the chequered history of litigation and series of orders passed by this Court and continuous non-compliance and disobedience on the part of respondent No. 1 Dhirendra Singh as well as other son Narendra Singh, who is although not living in the said house that this Court is of the considered opinion that he has committed breach of directions of this Court as well as his own Undertaking given before this Court on 20.3.2013. The other son Narendra Singh, who is stated to be living at another place, has not apparently caused any direct and deliberate disobedience of this Court's order but the Undertaking was given by both of them before this Court, whereas, the other son Dhirendra Singh has committed such clear & deliberate breach of directions of this Court as well as the Undertaking given by him by his continuous occupation of the part portion of the ground floor and full portion of first floor of the residential house in question situated at outside Nagori Gate, Ram Mohalla, Jodhpur, in the other part of which the petitioner father-Om Singh and his wife lives and constant fight between the parties reaching to police through FIR, sometimes, physical fights and oral abuses and failure of mediation process clearly show that the respondent contemner Dhirendra Singh not only does not have any regard for the court process and directions and his own Undertaking given before this Court but has least respect for his own father. Such an unfortunate but blameworthy son does not deserve any sympathy of the Court in contempt jurisdiction. Such an unfortunate but blameworthy son does not deserve any sympathy of the Court in contempt jurisdiction. The respondent contemners have not even tendered any such usual and formal apology also in their reply to contempt petition filed before this Court and on the other hand they sought to oppose the same tooth and nail by making all sorts of allegations against their own father, the present petitioner Om Singh. It is indeed unfortunate that the contemners have shown complete disrespect and disregard not only for their own father but they appear to have least respect for the directions of this Court and their own Undertaking given before this Court, as if they are fighting for every inch of the property, which their father constructed. 21. It would to travesty of justice if such bickering sons, who have not only no respect for their own father but have complete disregard and disrespect for the directions passed by this Court and their own Undertaking given before this court on 20.3.2013 and have abused the process of the Court are set free for the contumacious conduct while invoking the contempt jurisdiction of this court, even though arising out of the interim orders and series of such orders passed by different benches of this Court. 22. For breach of Undertaking in contempt law, the Hon'ble Supreme Court in Rama Narang vs. Ramesh Narang & Ors.- (2009) 16 SCC 126 has observed as under:- 41. In Noorali Babul Thanewala vs. K.M.M. Shetty (1990) 1 SCC 259 , a tenant committed breach of undertaking given by him to the Supreme Court to deliver vacant possession of certain premises. The Supreme Court held the tenant guilty of contempt. Hon'ble V. Ramaswami, J., delivering the judgment observed: "11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarding as tantamount to a breach of injunction although the remedies were not always identical. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceedings is, therefore, regarding as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt." 43. In Rita Markandey vs. Surjit Singh Arora (1996) 6 SCC 14 , this Court came to the conclusion that even if the parties have not filed an undertaking before the Court, but if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the court ultimately finds that the party never intended to act on such representation or such representation was false, even then the party would be guilty of committing contempt of court. The Court observed as under:- "12. Law is well settled that if any party gives as undertaking to the Court to vacate the premises from which he is liable to be evicted under the orders of the Court and there is a clear and deliberate breach, thereof it amounts to civil contempt but since, in the present case, the respondent did not file any undertaking as envisaged in the order of this Court the question of his being punished for breach thereof does not arise. However, in our considered view even in a case where no such undertaking is given, a party to a litigation may be held liable for such contempt if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the Court ultimately finds that the party never intended to act on such representation or such representation was false." 45. This Court again had occasion to deal with a case in Bank of Baroda vs. Sadruddin Hasan Daya (2004) 1 SCC 360 . This Court again had occasion to deal with a case in Bank of Baroda vs. Sadruddin Hasan Daya (2004) 1 SCC 360 . In that case, the Court clearly observed as under: "The wilful breach of an undertaking given to a court amounts to "civil contempt" within the meaning of Section 2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court." 23. Consequently, while arriving at the firm and considered conclusion that the respondents are guilty of committing civil contempt of this Court, this Court directs as under: (i) That as far as the execution of the orders passed by this Court and the Undertaking given by both the Respondents are concerned, it is directed that the vacant and peaceful possession of the portion of the house occupied by the respondent-sons including the ground floor locked portion as well as the first floor entire portion shall be handed over to the petitioner father-Om Singh with police aid, if necessary, within 45 days from today. The Executing Court below shall ensure compliance of the same punctually and meticulously forthwith, after expiry of 45 days from today. (ii) That the Contemner, Dhirendra Singh be punished with civil imprisonment to the extent of three months and also to pay fine of Rs. 25,000/-, which will be deposited in State Treasury within 45 days from today, and in default of payment of fine, he shall further undergo simple imprisonment of one month. (iii) That another contemner Narendra Singh shall only pay fine of Rs.25,000/- and deposit the same in State Treasury within 45 days from today and in default of payment of fine, he shall undergo simple imprisonment of one month. (iv) That sentence of imprisonment shall remain suspended for a period of 60 days from today. The present contempt petition is accordingly disposed of.