KANTILAL MOHANBHAI ZALAWADIA v. JIVANBHAI PARSHOTTAMBHAI PATEL
2021-12-06
ARAVIND KUMAR, ASHUTOSH J.SHASTRI
body2021
DigiLaw.ai
ORDER : ARAVIND KUMAR, J. 1. These two contempt petitions or applications are taken up together since order passed in one of the petitions will have direct bearing on the other. 2. We have heard Shri J. V. Japee, learned counsel appearing for the complainant in both the petitions and Shri Dakshesh Mehta, learned counsel appearing for respondent No.1, Shri N. V. Gandhi, appearing for respondent No.2 and Shri J. A. Adeshra, learned advocate appearing for respondent No.3. We have perused the case papers. 3. These two applications have been pending for the last 11 years 2 months and on account of Registry having been directed by this Court to list all old matters, these two matters have seen the light of the day, namely, they have come on board and as such fervent request made by learned counsel for the complainant for grant of adjournment has been refused on the ground that these matters are pending from last one decade. 4. The facts shorn of unnecessary details can be crystallized as under:- 4.1 The complainant herein filed a suit for specific performance against the first respondent herein in Special Civil Suit No.23 of 2009 (re-numbered as Special Civil Suit No.12 of 2017) which is still pending. An application came to be filed by the complainant in the said suit herein for grant of temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, which was dismissed by the trial court by order dated 11.01.2010. Appeal against the said order filed an Appeal From Order No. 102 of 2010 was filed which came to be disposed of by order dated 05.05.2010 by the learned Single Judge of this Court on the strength of a statement made by the learned advocates, which also came to be recorded, and we extract the same for the purpose of immediate reference. It reads: "in view of the settlement arrived at between the parties, learned advocate for the appellant requests that the order impugned may be substituted by the terms of settlement". 4.2 The settlement was to the effect that suit schedule property would not be sold by 1st respondent. Alleging violation of this order, Misc. Civil Application No.1735 of 2011 has been filed. In the said contempt proceedings, several orders, directions and injunctions have been passed / issued.
4.2 The settlement was to the effect that suit schedule property would not be sold by 1st respondent. Alleging violation of this order, Misc. Civil Application No.1735 of 2011 has been filed. In the said contempt proceedings, several orders, directions and injunctions have been passed / issued. Suffice to state that directions, injunctions of vital importance came to be issued by this Court which was adjudicating present the Misc. Civil Application No.1735 of 2011 by order dated 15.09.2011. 4.3 Alleging that this directions issued in Misc. Civil Application No. 1735 of 2011 on 15.09.2011 are violated, the contempt proceedings in Misc. Civil Application No.1021 of 2012 has been filed in which petition / application also several orders, directions and injunctions have been issued. As such, we have taken up these two applications together for consideration and passing a common order. 4.4 At the outset, it requires to be noticed that it is trite law that when this Court is exercising the jurisdiction under Section 11 of the Contempt of Courts Act, 1971, it would examine as to whether there is any disobedience or willful disobedience of the order which is complained of. If the answer is in the affirmative, necessarily after framing the charge, recording the plea, recording the evidence and thereafter recording the plea of the accused this Court would either punish the accused if found guilty or acquit. Issuing of interim orders or directions, injunctions is alien to these proceedings under Section 11 of the Contempt of Courts Act and beyond the scope of this proceedings. For this proposition judgment of the Hon’ble Apex Court in case of V. Senthur and Another versus M. Vijayakumar, IAS, Secretary, Tamil Nadu Public Service Commission and Another reported in 2021 SCC OnLine SC 846 can be looked up. However, if this Court after having found that there has been willful disobedience of the order and after having convicted the accused for the charge for which he or she has been proceeded with the illegality that has been committed would be redone to ensure that stream of justice is not polluted or in other words clock would be put back so that complete justice is done.
4.5 Keeping these salutary principles in mind when we examine the facts on hand, it would clearly indicate that in a simple suit for specific performance the plaintiff who claimed to be in possession of the suit scheduled property by virtue of the agreement of sale executed by respondent No.1 filed an application for temporary injunction under Order XXXIX Rule 1 and 2 as noticed hereinabove. The said application, after contest, came to be dismissed by order dated 11.01.2010. The aggrieved plaintiff pursued his grievance before this Court in Appeal From Order No. 102 of 2010 in which proceedings, the learned advocates filed an agreement said to be the terms upon which the parties had settled the disputes. This terms of settlement has been taken on record by the learned Single Judge of this Court and disposed of the appeal in terms of said settlement. At this juncture itself it requires to be noticed that prima facie said settlement arrived at between the parties is not in consonance with Order XXIII Rule 3 of the Code of Civil Procedure, which is not in dispute and particularly the terms of the settlement, which is at Annexure-C is said to have been entered into between the parties. We say so for the simple reason that none of the parties were before this Court when settlement was recorded. They have not been examined or the contents of the Settlement Deed was not read over to them in the open Court by the Court. As to whether that it is in due compliance with the provisions of Code of Civil Procedure namely Order XXIII Rule 3 or not is an issue which we will not examine and we would not express any opinion in this regard particularly in the background of respondent herein having disputed the same before this Court and also before the learned Single Judge by filing an application for review in Misc. Civil Application (Stamp) No.2350 of 2011, which is said to be still pending before the learned Single Judge. Any attempt made by this Court to express any opinion in that regard is likely to prejudice the rights of the parties in the said Review Application. That apart, we also notice that cognate Bench by order dated 15.09.2011 passed in Misc.
Civil Application (Stamp) No.2350 of 2011, which is said to be still pending before the learned Single Judge. Any attempt made by this Court to express any opinion in that regard is likely to prejudice the rights of the parties in the said Review Application. That apart, we also notice that cognate Bench by order dated 15.09.2011 passed in Misc. Civil Application No.1735 of 2011 has also clearly expressed in paragraph No. 15 to the following effect:- "(15) If the time gap between the order passed by this Court is considered, it was as back as on 05.05.2010, whereas the present proceedings are initiated by the cognizance of this Court on 11.07.2011, roughly after more than one year, that too after one alleged sale deed is executed by opponent No.1. Further the criminal complaint is of January, 2010, whereas the settlement is of March, 2010 and it was admitted before the Court in May 2010. ........." 4.6 We do not propose to finally conclude on the aspect of genuineness of the settlement or otherwise since said question may be required to be considered by the Civil Court at the appropriate stage, if such contingency arises. Further, the learned Single Judge in the review may also, if deems it proper, examine the said aspect. 5. The fact remains that the issue relating to the genuineness of the settlement is still at large in the review application and both parties would be at liberty to work out their rights in the said review application. That apart, this Court in the order dated 15.09.2011 had also granted liberty to the learned Civil Judge adjudicating Special Civil Suit No.12 of 2017 to examine all aspects including the aspect of genuineness of the settlement and for this reason also we refrain from expressing any opinion on the alleged settlement arrived at. 6. It would not be out of context to refer at this juncture that the Co-ordinate Bench which had granted an interim injunction by its order dated 15.09.2011 had also directed that operation and implementation of the sale deed dated 13.06.2011 would remain stayed and suspended qua the rights of the applicant for the land in question which is the subject matter of Special Civil Suit No.23 of 2009 (New number as Special Civil Suit No.12 of 2017).
Such directions would be outside the scope of the proceedings as already observed hereinabove since exercising the power under Section 11 of the Contempt of Courts Act would only be examining the contemptuous act committed by a contemner namely to examine as to whether contemner has willfully disobeying the order and if found to be so, punish him / her for such act. Issuing of temporary or ad-interim injunction would not arise. Be that as it may. The fact that said injunction which had been granted, is now the subject matter in Misc. Civil Application No.1021 of 2012, cannot be lost sight of and it has been filed for violation of the order dated 15.09.2011 passed in Misc. Civil Application No.1735 of 2011. Even in the second contempt, several directions of appointing an investigating officer namely the District Superintendent of Police, Navsari to ascertain as to who is in possession of the property has also been undertaken by this Court intriguingly, which was alien to the scope of these proceedings as could be discerned from the order dated 02.07.2013. In fact possession of the suit property has been taken to the custody of the Court, namely, the possession of the suit scheduled property has been ordered to be taken over by the Registrar, District Court, Navsari and he has been appointed as a Court Commissioner to take possession of the land (disputed land), namely, the suit scheduled property with the help of the Police. It is stated by the learned advocates appearing for the parties that possession of the suit property now vests with the civil court and for the past 10 years neither of the parties are in possession of the suit property and it is stated that Court Receiver or the Court Commissioner is in possession and enjoyment of the said property and he is said to have been depositing the proceeds or the usufructs or the profits earned from the land in the Court namely in Special Civil Suit No.12 of 2017 (old number as Special Civil Suit No.23 of 2009).
In both the orders, namely, 02.07.2013 as well as 15.09.2011 the Co-ordinate Bench has observed to await orders of the civil court which was not warranted, inasmuch as the issue as to whether petitioner is entitled for specific performance and as to whether the defendant No.1 i.e. respondent No.1 herein, in contravention of the agreement of sale had sold the property to other defendants and as to whether there was a settlement entered into between the parties are all issues which requires to be thrashed out after a fullfledged trial before the civil court in the pending suit i.e. Special Civil Suit No. 12 of 2017 (Old number as Special Civil Suit No.23 of 2009) and as such keeping this contempt proceedings pending would only be burdening the Court records and no fruitful purpose would be served, but, on the other hand, it would act counterproductive, namely, the trial court would not proceed with the suit and in spite of observations made in the earlier orders, there seems to have no progress of the case and it is said to be moving at a snail’s pace. As such, reserving liberty to both the parties to work out their rights in the pending suit, the contempt proceedings stand dropped. 7. It is apt and appropriate to observe at this juncture that apart from this Court having observed on earlier occasions that trial court should proceed to adjudicate all the disputes and particularly on 08.08.2013 granting liberty to both the parties to move the Civil Judge for earlier disposal of the suit it seem to have had no effect. Hence, we reiterate the said order to the said extent only and request the learned Civil Judge, Navsari adjudicating Special Civil Suit No. 12 of 2017 (old number as Special Civil Suit No.23 of 2009) to take up the matter by following the procedure prescribed under the case management rules expeditiously. 8. With these observations, the contempt proceedings stand closed. Rule discharged. Interim relief, if any, stands vacated.