Chandrashekhar Govind Daiwatkar & another vs Ramdas Govindrao Daiwatkar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 617

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Dr. Chandrachud D.Y., J.
Chandrashekhar Govind Daiwatkar another .... Petitioners.
Versus
Ramdas Govindrao Daiwatkar.... Respondent.
Contempt Petition No. 99 of 2002 in Appeal From Order No. 1 of 1998, decided on 3-7-2002.
Advocates appeared :
Abhijit Deshpande, for petitioners.
V.L. Somalwar, for non-applicant/respondent.

Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rules 1 and 2, Order V, Rule 20 - Injunction - Notice sought to be served on respondent - Substituted service was made - Number of sale deeds affected - Respondents contravening said order - Knowledge of interim injunction denied - Such plea is not reliable - A person who is party to appeal is supposed to be aware of all developments.
       Contempt of Courts Act, 1971 - Section 2(c) - Notice of injunction sought to be served on respondent - Substituted service was made out - Number of sale deeds affected - Res- pondents contravening said order - Knowledge of interim injunction clearly denied - Unacceptable - A person who is directly involved in litigation is supposed to be aware of latest development. - There is absolutely no substance in the plea that the respondent was aware only of the contents of the memo of appeal and the civil application therein but not of the order of the Court. Whatever may be the position prior to 16.8.1999, there can be no doubt about the fact that once the respondent had entered appearance before the Court on the aforesaid date through an Advocate, the respondent must be imputed knowledge of the proceedings before the Court and of the order which was passed on 11.2.1998. In AIR 1962 SC 1089 (supra) Mr. Justice S.K. Das delivering the judgment of the Bench of three Judges of the Supreme Court, held that in the matter of a prohibitory order it is well-settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had the notice of the order aliunde. The Supreme Court after referring to the earlier decisions on the point held that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt. The entire sequence of events of this case has been referred to in some detail in the earlier part of this order. The narration of facts, would leave no manner of doubt that the respondent was duly served with notice and was aware of the order passed by the Court. The respondent initially evaded the service of the notice and ultimately when the notice was served on him in pursuance of the order permitting substituted service under Order V, Rule 20 of the Code of Civil Procedure, the respondent duly entered appearance through an Advocate.
       Contempt of Courts Act, 1971 - Section 2(c) - Awarding of punishment by whom - Against contempt - Interim orders of lower Court not followed - Contention - In view of Rule 2(a) Order XXXIX, CPC High Court cannot pass a punishment for its contempt - Plea not tenable - Being Court of supervision it can punish contemnor and its efforts are not thwarted by Section 22 of Contempt Act - Sentence of fine with sentence imposed - On agreeing to pay money the sentence reduced. - In fairness, it must be stated that it has not been the contention of the respondent that the existence of the remedy under Order XXXIX, Rule 2-A would oust the jurisdiction of the Court to punish for contempt. No such argument could have, in any case, been made having regard to the well-settled position of law. In AIR 1992 SC 904, the Supreme Court held that the Supreme Court and the High Courts being Courts of record, under Articles 129 and 215 of the Constitution of India, these Courts are vested with the constitutional power to punish for contempt and that power cannot be abridged or abrogated by any legislation. The same view has been taken in a judgment of a Full Bench of the Madras High Court in AIR 1991 Madras 323, and by Single Judge of this Court in 1999 Vol. 101(1) Bom LR 15 (supra). Finally it would also be appropriate to advert to the provisions of Section 22 of the Contempt of Courts Act, 1971 which lay down that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. It would be appropriate, in the interests of justice, to grant one final opportunity to the respondent to purge the contempt. In order to enable the respondent to do so, the order of sentence should be suspended for an appropriate period so as to furnish that opportunity to the respondent. Accordingly, there shall be a direction to the effect that the respondent shall, within one week from today, file an affidavit before the trial Court in Special Civil Suit No. 1385 of 1995, containing a full disclosure of the sale transactions which have been entered into by the respondent in respect of the property which forms the subject- matter of the order of injunction that was passed by the Court on 11.2.1998 with full particulars of the dates on which the transactions were entered into, the parties with whom the transactions were entered into and the consideration that has been received in respect thereof. The respondent shall also file before the trial Court, within the aforesaid period, authenticated copies of the sale documents and all other documents which have been executed. The respondent shall also within a period of four weeks from today deposit before the trial Court the full consideration that has been received by him in respect of the aforesaid sale transactions. The trial Judge is directed to submit a report to this Court after verifying that compliance has been made by the respondent.
       Constitution of India - Articles 129 and 215 - Contempt of Court who to pass sentence - Interim orders passed by lower Court not obeyed - In view of Rule 2, Order XXXIX CPC - High Court alleged to have no power to award punishment - Plea not tenable - Being Court of supervisory jurisdiction High Court can punish contemners, its efforts are nowhere thwarted by Section 22 of Contempt Act - Sentence awarded - Power of High Court is not hampered. - It would be appropriate, in the interests of justice, to grant one final opportunity to the respondent to purge the contempt. In order to enable the respondent to do so, the order of sentence should be suspended for an appropriate period so as to furnish that opportunity to the respondent. Accordingly, there shall be a direction to the effect that the respondent shall, within one week from today, file an affidavit before the trial Court in Special Civil Suit No. 1385 of 1995, containing a full disclosure of the sale transactions which have been entered into by the respondent in respect of the property which forms the subject matter of the order of injunction that was passed by this Court on 11.2.1998 with full particulars of the dates on which the transactions were entered into, the parties with whom the transactions were entered into and the consideration that has been received in respect thereof. The respondent shall also file before the trial Court, within the aforesaid period, authenticated copies of the sale documents and all other documents which have been executed. The respondent shall also within a period of four weeks from today deposit before the trial Court the full consideration that has been received by him in respect of the aforesaid sale transactions. The trial Judge is directed to submit a report to this Court after verifying that compliance has been made by the respondent. The contempt petition shall be listed before this Court for verifying compliance on 19.8.2002. Until 23.8.2002, the sentence which has been imposed on the respondent shall remain suspended..

JUDGMENT - Dr. D.Y. CHANDRACHUD, J.:---The petitioners before this Court are the original plaintiffs in Special Civil Suit No. 1385 of 1995 which was instituted in the Court of the learned 4th Joint Civil Judge, Sr. Dn., Nagpur, for partition, for separate possession of the shares of the petitioners and for consequential reliefs. In the said suit, an application for the grant of an interim injunction restraining the original defendants from alientating the suit property was dismissed by the learned trial Judge by an order dated 24-7-1997. The respondent herein is the first defendant to the suit for partition. The petitioner filed an appeal before this Court against the order of the learned trial Judge declining to grant an interim injunction. The appeal was admitted on 11-2-1998 and on the civil application taken out in the aforesaid appeal, an order was passed in terms of prayer Clause (a), by which all the respondents thereto including the respondent herein were restrained by an order of injunction from creating any third party interests and from alienating any part of the property mentioned in the schedule annexed to the civil application. The schedule of property which is appended as Annexure A to the civil application contains inter alia a reference at serial No. 1 to the property bearing Gat No. 141, P.H. No. 6, situated at Waddhamna in the Tahsil and district of Nagpur. After the order was passed by this Court on 11-2-1998, an effort was made by the bailiff on several occasions to serve the respondent. The first report of the bailiff dated 25-3-1998 states that the respondent herein was not present at his residence. Respondent Nos. 2 and 3 to the appeal from the order, who were respectively the brother and the mother of the respondent herein, were however present when the bailiff visited the residential premises of the respondents to effect service. Thereafter further attempts were made by the bailiff on 30-4-1998 and 24-8-1998. Eventually, on 2-10-1998 the bailiff again went to serve the notice upon the respondent and since it was stated that he was not available, the notice was pasted on the door of the residential house of the respondent. The bailiff has submitted a report to that effect to this Court. Subsequently, a registered letter was addressed to the respondent by the Registry of this Court at Nagpur. The postal packet contains an endorsement dated 16-2-1999 that intimation had been posted. The letter was returned back to the office with an endorsement dated 22-2-1999 to the effect that the letter had not been claimed and that it was accordingly being returned to the sender. The petitioner thereupon took out a civil application, C.A. No. 2852 of 1999, in the appeal against order for effecting substituted service and in paragraph 2 of the civil application a reference was made to the efforts which were made by the bailiff and thereafter by the registry to serve the respondent. The fact that the registered letter had been returned as not claimed was also adverted to and a statement was made before the Court that the respondent was avoiding service of the notice of the appeal. Accordingly, permission of the Court was sought for effecting substituted service under Order V, Rule 20 of the Code of Civil Procedure. The civil application was allowed on 6-7-1999 by an order of this Court. Thereafter the bailiff once again went to the very same premises at which the service had been attempted in the past and once again the respondent was not available upon which a copy of the notice of the Court was pasted on the premises. The bailiff has submitted a report on 16-8-1999. On 18-8-1999 the respondent entered appearance before this Court and the Vakalatnama of the learned Advocate, who is appearing on his behalf, came to be filed in the registry on the same date.

2. The grievance of the petitioner is that thereafter on 10-9-2001 the respondent executed a sale-deed which has been registered in respect of the very same proper

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