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2020 DIGILAW 115 (BOM)

Manohar Modku Tadse v. Banwarilal

2020-01-14

MILIND N.JADHAV

body2020
JUDGMENT : Milind N. Jadhav, J. Heard learned counsel appearing for the respective parties. 2. By the present Contempt Petition, the Petitioner has alleged contempt of the order dated 8.2.2017 passed by this Hon'ble Court in Civil Application (F) No.3060/2016 in First Appeal No.913/2016. The Petitioner has filed First Appeal bearing No.913/2016 challenging the judgment and decree dated 21.7.2015 passed by the Trial Court in S.C.S. No.403 of 2011. The Petitioner is the Original Defendant. The Contemnor-Respondent is the Original Plaintiff. Special Civil Suit No.403 of 2011 was filed by the Original Plaintiff (Respondent-Contemnor herein) for seeking Specific Performance of Agreement between the parties and further consequential reliefs. This suit came to be decreed on 21.7.2015, inter alia, directing the Petitioner herein to execute the Sale Deed of the suit property in favour of the Respondent-Contemnor. Certain other relief’s were also granted. 3. Both the learned counsels appearing for the respective parties have informed the Court that the Petitioner did not execute the Sale Deed as directed in the order, the Respondent-Contemnor got the Sale Deed executed through the Trial Court. 4. The Petitioner, being aggrieved by the aforesaid decree dated 21.7.2015, filed First Appeal No.913 of 2016 in this Hon'ble Court. In the interim Civil Application (F) bearing No.3060/2016, this Hon'ble Court was pleased to pass the following order on 8.2.2017 : "By this application, the applicant prays for staying the effect and operation of decree passed by the trial Court dated 21.7.2015. By said decree, the suit filed by the respondent for specific performance of the agreement has been decreed and the appellant has been directed to execute sale deed of the suit property in favour of the respondent. It is submitted on behalf of the applicant that the applicant is in possession of the suit property and the trial Court, without considering the evidence in proper perspective, has decreed the suit. It is, therefore, prayed that the execution of the decree be stayed during the pendency of appeal. The application is opposed by learned counsel for the respondent. It is submitted that the respondent has paid earnest amount of Rs.51 lacs and has also deposited the balance consideration in terms of the decree passed by the trial Court. Perused the impugned judgment. The application is opposed by learned counsel for the respondent. It is submitted that the respondent has paid earnest amount of Rs.51 lacs and has also deposited the balance consideration in terms of the decree passed by the trial Court. Perused the impugned judgment. Prima facie, considering the findings recorded by the trial Court and considering the fact that the respondent has parted with the entire amount of consideration of almost Rs.1 crore, the following order is passed without prejudice to the rights of the parties: Order The possession of the appellant in respect of the suit property shall remain protected during the pendency of the appeal. No third-party interests shall be created by either of the parties with regard to the property during pendency of the appeal. The appellant shall execute sale deed of the suit property in favour of the respondent subject to final outcome of the present appeal. The manner in which the registration expenses are to be appropriated, shall be adjudicated when the appeal is finally heard. Application is disposed of in aforesaid terms. No costs." 5. The Contempt, that is alleged in the present petition, is of this very Order. 6. Ms. Ashwini Kathane, learned counsel appearing for the Petitioner, drew my attention to the operative part of the order dated 8.2.2017 and dissected the said operative part into four items as under: (i) The possession of the Appellant in respect of the suit property was remained protected during the pendency of the Appeal. (ii) No third-party interest shall be created by either of the parties with regard to the property during pendency of the Appeal. (iii) The appellant shall execute Sale Deed of the suit property in favour of the Respondent subject to final outcome of the present appeal. (iv) The manner in which the registration expenses are to be appropriated, shall be adjudicated when the Appeal is finally heard. 7. She submitted that in respect of the afore-stated Item Nos. (iii) and (iv), she has no grievance. Her grievance of contempt is mainly directed towards non-compliance of Item Nos.(i) and (ii) herein above. She submitted that the order came to be passed on 8.2.2017, inter alia, giving certain specific directions. She submitted that by the first direction, possession of Appellant in respect of suit property was directed to be protected during pendency of Appeal. Her grievance of contempt is mainly directed towards non-compliance of Item Nos.(i) and (ii) herein above. She submitted that the order came to be passed on 8.2.2017, inter alia, giving certain specific directions. She submitted that by the first direction, possession of Appellant in respect of suit property was directed to be protected during pendency of Appeal. She submitted that some time on 6.10.2017 that is eight months after passing of the order, the Respondent-Contemnor along with some third-party put up tin shed over the boundary of the suit property without recourse to the due process of law. She submitted that though the Respondent-Contemnor was not directly seen or had put up the tin shed on the boundary of the suit property, it was at his behest that a third-party called Shri Hira Bisen had come on the suit property and indulged in putting up the tin shed. Therefore, in respect of contempt alleged in terms of Item No.(i) herein above, she submitted that the Respondent-Contemnor has disturbed possession of the Petitioner. 8. Thereafter, Ms. Kathane submitted that though there was a specific direction [Item No.(ii)] that no third-party interest shall be created by either of the parties during pendency of the Appeal. According to her, the Respondent-Contemnor has flouted and violated this order of the Court inasmuch as the Respondent-Contemnor has created third-party interest and rights by allowing the third-party viz., Shri Hira Bisen to come over on the suit property and put up the tin shed. She, therefore, submitted that the Respondent-Contemnor was responsible for wilfully disobeying and intentionally violating the order passed by this Court and was in contempt of the same. 9. In support of her contention, she submitted that the Respondent-Contemnor had illegally handed over possession of one plot on the suit property to third-party Shri Hira Bisen and it was this third-party Shri Hira Bisen, who had erected the tin shed over the suit plot, which was handed over to her. She submitted that though she had no documentary evidence to place on record that the said plot was handed over to Shri Hira Bisen, the fact that Shri Hira Bisen had come over on the said plot and put up the tin shed at the behest of the Respondent-Contemnor proved that the Respondent-Contemnor had committed wilful breach and disobedience of the order of this Hon'ble Court. In the Contempt Petition, there is an averment with respect to lodging of Police Complaint in respect of the aforesaid incident. On being asked to place a copy of the said Complaint on record, the Petitioner was not in a position to place the same. Ms. Kathane finally placed reliance upon the photographs, which were placed on record and enclosed as Annexure-3 to the Contempt Petition. She drew my attention to photograph nos. 1, 2, 3, 4 and 5 and submitted that in two out of the five photographs, there is a black notice board, which gives details of the order dated 8.2.2017 passed by this Hon'ble Court. She submitted that the place where the said black notice board has been planted is the said vacant plot, has been encroached upon by the said Shri Hira Bisen and in photographs no.3, 4 and 5, the tin shed, which has been erected on the said plot, can be seen. She submitted that this construction of tin shed was violative of the directions contained in the order dated 8.2.2017 and amounted to interference by a third-party on the suit property. She has fairly rested her case at this. 10. Per contra, Shri Shirish Kotwal, learned counsel appearing for the Respondent-Contemnor, has refuted the charge of contempt alleged by the Petitioner. He submitted that the Petitioner had entered into an Agreement to Sale with the Respondent-Contemnor on 13.4.2006. At that time, the land belonging to the Respondent Contemnor was agricultural land and the Petitioner was interested in converting the same into non-agricultural land so that the Petitioner could demarcate a layout and sell the plots in the layout to prospective purchasers. Therefore, the Petitioner approached the Respondent-Contemnor and entered into the above Agreement, pursuant to which the Respondent was instrumental in beginning the procedure for conversion of the land from agricultural to nonagricultural status. He submitted that the Respondent also pursued and obtained permission from the Gram Panchayat, which was mandatory. He submitted that the Petitioner also granted permission to the Respondent-Contemnor to display public advertisement on the suit land to invite attention of prospective purchasers of the plots in the layout. He submitted that for the purpose of the above development of the suit land, the Petitioner accepted a sum of Rs.51,00,000/- from the Respondent-Contemnor, pursuant to which he permitted the Respondent-Contemnor to deal with the said suit land. He submitted that for the purpose of the above development of the suit land, the Petitioner accepted a sum of Rs.51,00,000/- from the Respondent-Contemnor, pursuant to which he permitted the Respondent-Contemnor to deal with the said suit land. He submitted that after demarcation of the layout on the suit land, several prospective purchasers had taken consent of the Petitioner and had occupied their respective plots. He submitted that the said prospective purchasers had also obtained electricity connections from MSEDCL/MSEB to their respective constructions/units standing on their plots, with the consent of the Petitioner. 11. In support of the aforesaid submissions, he relied upon the copy of the Plaint, which is enclosed as Annexure-2 to the affidavit-in-reply dated 7.1.2019. He submitted that all the aforesaid facts were incorporated in the Plaint by the Respondent-Contemnor (Original Plaintiff), on the basis of which, the Suit came to be decreed. He further submitted that the Petitioner had himself issued a legal notice through his Counsel to the Respondent-Contemnor on 26.8.2010, a copy of which has been enclosed as Annexure-R-3 to the affidavit-in-reply filed by the Respondent-Contemnor. He submitted that in the notice, the fact of construction of houses on the plots and obtaining electricity supply by the prospective purchasers has been specifically mentioned by the Petitioner. He submitted that the Petitioner had filed the present Contempt Petition with a clear mala fide intention against the Respondent Contemnor, as the Sale Deed of the suit land came to be executed by the Trial Court in favour of the Respondent-Contemnor. He submitted that in terms of the directions at Item No.(iii) (supra) it is the Petitioner who had committed Contempt thereof by refusing to execute the Sale Deed of the suit property in favour of the Respondent-Contemnor. He submitted that since the Respondent Contemnor had approached the Trial Court and got the Sale Deed executed in his favour, the Petitioner could not digest the said fact and, therefore, as a counter blast has filed the present Contempt Petition to harass and subjugate the Respondent-Contemnor. He submitted that the Respondent-Contemnor had never visited the suit property nor had he permitted any person or third-party and, more specifically, Shri Hira Bisen to occupy any plot on the suit property. He submitted that the Respondent-Contemnor had never visited the suit property nor had he permitted any person or third-party and, more specifically, Shri Hira Bisen to occupy any plot on the suit property. He submitted that the allegations made by the Petitioner in the Contempt Petition are vague, insufficient, arbitrary and most importantly false, as they are not supported by any documentary evidence. He submitted that pursuant to the order dated 8.2.2017, it was the duty of the Petitioner to protect the suit land as has been stated in the order. He submitted that the Petitioner has miserably failed to protect the suit land from Shri Hira Bisen, as alleged in the Petition. He submitted that the Petitioner is indulging in mala fide activities solely to harass the Respondent-Contemnor, during the pendency of the First Appeal. Lastly, he has drawn my attention to the suit-plaint at page No.33 of the file. He submitted that on the suit being decreed by the learned Trial Court, the execution of the Sale Deed and Specific Performance of the Contract came to be granted only on the pre-condition that the Respondent-Contemnor had to deposit and pay to the Plaintiff the balance consideration of Rs.47,73,455/-. He submitted that the Plaintiff has received a sum of Rs.51,00,000/- at the time of entering into the Agreement and further sum of Rs.47,73,455/-. There is no dispute in respect of the aforesaid transactions, and the learned counsel appearing for the Plaintiff also admits the receipts of the two aforesaid amounts by the Petitioner. Shri Kotwal, therefore, submitted that the Plaintiff has received due consideration, as directed by the learned Trial Court in respect of the suit property and, therefore, though the order dated 8.2.2017 protects the possession of the Petitioner during the pendency of the Appeal, it is the duty of the Petitioner to protect the suit property, as the Petitioner claims to be and is in possession of the suit property. He, therefore, submitted that the Petition is vexatious and frivolous abuse of the due process of law and is not maintainable and deserves to be dismissed with exemplary costs. 12. I have perused the Petition, the copy of the affidavit-inreply dated 7.1.2019 and Annexures thereto. 13. He, therefore, submitted that the Petition is vexatious and frivolous abuse of the due process of law and is not maintainable and deserves to be dismissed with exemplary costs. 12. I have perused the Petition, the copy of the affidavit-inreply dated 7.1.2019 and Annexures thereto. 13. On going through the pleadings, I find that the allegations of the contempt, which are alleged of the order dated 8.2.2017, are to be looked at from the perspective intentional breach of the same by the concerned party. The Contempt is alleged of Item Nos.(i) and (ii) (supra) viz., the possession of the Petitioner being disturbed and encroachment by the third-party Shri Hira Bisen, as alleged. Both the aforesaid directions, which are contained in the order dated 8.2.2017, can only be violated, if concrete proof and material are placed before this Hon'ble Court by the Petitioner. The possession of the suit property is with the Petitioner. The averment by the Respondent-Contemnor that he has never visited the suit property is placed on affidavit. The Petitioner has also confirmed that the Respondent-Contemnor has himself never come upon the suit land, pursuant to the passing of the order dated 8.2.2017. The Petitioner has, however, alleged that the third-party Shri Hira Bisen has come over on the suit property at the behest of the Respondent-Contemnor. Insofar as this allegation/charge/claim is concerned, the Petitioner ought to have placed on record better proof and particulars of the same so as to establish the nexus between the alleged encroacher, who has put up the tin shed and the Respondent-Contemnor. By merely making a bald allegation that some third-party has come upon the suit land at the behest of the Respondent-Contemnor does not prove the case of the Petitioner and prove contempt committed by the Respondent-Contemnor. Insofar as Item no. (ii) (supra) is concerned, it is the case of the Petitioner that third-party interest has been created by the Respondent-Contemnor. Here also, the Petitioner is required to place on record the factual details of creation of third-party interest in respect of the suit property so as to indict the Respondent- Contemnor. No such factual material or documentary evidence has been placed on record by the Petitioner, save and except making a bald allegation in the Petition. Here also, the Petitioner is required to place on record the factual details of creation of third-party interest in respect of the suit property so as to indict the Respondent- Contemnor. No such factual material or documentary evidence has been placed on record by the Petitioner, save and except making a bald allegation in the Petition. In paragraph No.3 of the Petition, the details which have been given by the Petitioner do not go on to prove commission of any wilful act or disobedience of the order dated 8.2.2017 by the Respondent-Contemnor. Further, the five photographs, which have been placed on record to corroborate the case of the Petitioner also do not prove the commission of any contemptuous act by the Respondent-Contemnor. Therefore, the allegation of contempt initiated by the Petitioner against the Respondent-Contemnor that the alleged encroacher Shri Hira Bisen has erected the tin shed with the help of the Respondent-Contemnor cannot be accepted and is not sustainable in law. In quasi criminal proceedings like Contempt, if contempt of any order of the Court is alleged, such actions which are beyond reasonable doubt, are required to be proved by the person, who alleges the contempt and, therefore, in the present case, the Petitioner has failed to prove beyond reasonable doubt that it is the Respondent-Contemnor, who has violated or is in wilful beach of the directions contained in the order dated 8.2.2017. 14. In view of the above, I find no merit in the Contempt Petition. The Petitioner has failed to prove that the Respondent Contemnor has violated the order dated 8.2.2017 intentionally or wilfully. On the contrary, I will have to accept the case of the Respondent-Contemnor that he has not been involved in any contemptuous act, as alleged by the Petitioner. In the facts and circumstances of the present case, the Contempt Petition is, therefore, dismissed. The Petitioner is directed to pay cost of Rs.5000/- to the High Court Legal Services, Sub Committee, Nagpur, within a period of four weeks from the date of this Order. If the said cost is not paid by the Petitioner within the stipulated time, the same shall be recovered from the Petitioner as arrears of land revenue. 15. Rule is discharged. Contempt proceedings are dropped against the Petitioner. Contempt Petition is disposed of accordingly.