Back
IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
Damodar Mahadeo Patil .... Petitioner.
Versus
Motiram Mahadeo Patil another.... Respondents.
Contempt Petition No. 201 of 2002, decided on 3-10-2002.
Advocates appeared :
G.S. Hiranandani, i/b., C.G. Gavnekar, for petitioner.
I.S. Thakur Sunil Kumar Rathore, for respondent No. 1.
K.K. Tated, A.G.P., for respondent No. 2.
Limitation Act, 1963 - Section 5 - Initiation of proceedings - Case of contempt - Alleged contemnation if taken first day, the application must be filed or suo motu action must be taken within one year from it - Contention that, as procedure was not initiated even within one year it became time barred - Held - Date of offer refers to notice pursuant to application, hence it is not a suo motu proceeding - It appears proceedings were initiated by application filed in relation to offending act so it is within limitation.
Contempt of Courts Act, 1971 - Section 2(b) - Civil contempt. - When contempt by wilful non- compliance of order of High Court not in dispute then mere absence of affidavit of petitioner in support of application is of no consequence.
Contempt of Courts Act, 1971 - Sections 2 (b) and 15 - Civil contempt - Wilful disobedience of order passed by High Court - Proceedings relate to civil contempt - Not a criminal contempt - Obtaining of written consent of Advocate General for initiation of contempt proceedings - Not necessary at all. - As regards the first contention of the respondent No. 1 that contempt petition is filed under Section 15 of the Contempt of Courts Act, 1971. It is to be noted that the nature of the contempt proceedings does not depend upon the section of the Contempt of Courts Act referred to or mentioned in the application but the substance of the application is the decisive factor in that regard. If one peruses the contents of the application, the same reveal the grievance of the applicant relating to the wilful non-compliance of the order of the Court. Once it is clear that the present proceedings are not for criminal contempt but for civil contempt, the question of obtaining written consent of Advocate General for initiation of such proceedings does not arise at all.
Contempt of Courts Act, 1971 - Section 12(1) - Unconditional apology - Case of contempt - Sale- deed executed even without permission of Court - Execution of deed knowing well that it was stayed - Held - Plea of financial constraints is not supported by any evidence - It seems to be a statement only to avoid penal action - Logic of bona fide also not acceptable - It was an act done in full sense knowing full case history - It is an offence under the Act and it is duly punishable. - The Apex Court was dealing with the matter whereby the Government of Haryana had expressed its inability to comply with the directions issued in relation to the payment of arrears of salary to the employees on account of financial constraint. It was not a case of positive act of violation of the Court s order but an inability to perform an act which was directed to be performed by the Court. There is a difference between two such acts. In case of inability to perform an act on the ground of financial constraint, the same may not always be an act of disobedience, and perhaps rarely be called as intentional or wilful. However, when the party to whom specific direction is given not to perform a particular Act and yet the party performs the said Act, it apparently shows disobedience of the Court s direction. Undoubtedly, in order to hold a person to be guilty of Contempt of Court, such disobedience has to be coupled with wilful act on the part of performer.
Contempt of Courts Act, 1971 - Section 20 - Limitation. - Where offending act in violation of order of Court was committed on 17.4.2001 then application under Section 15 of Contempt Act filed on 9.4.2002 was well within period of limitation.
2. The petitioner herein had filed regular Civil Suit No. 34 of 1991 against the respondent No. 1 and some others for partition and separate possession of ¼ share contending that the agricultural property held by the brothers was a joint family property. The said suit was decreed by the trial Court while rejecting the monetary claim made by the petitioner against the defendants in the suit. The preliminary decree was passed on 17-1-1995. The Civil Appeal No. 36 of 1995 came to be filed by the respondent No. 1 herein against the said decree which was allowed by the lower Appellate Court by its judgment and decree dated 12-2-1998 and thereby the suit filed by the petitioner came to be dismissed.
3. The petitioner thereupon filed the Second Appeal No. 169 of 1998 and pending the hearing and final disposal of the said second appeal preferred Civil Application No. 3202 of 1998 for direction to the parties not to incumber the properties and/or to continue with the construction, if any, as also to restrain the respondent No. 3 to the said appeal from creating third party interest over the land bearing Survey No. 24/2 situated in the village Tarankhop, Taluka Pen, District Raigad, and further for stay of the operation of the judgment of the lower Appellate Court. On the said application, an ad interim relief in terms of prayer Clause (b) which related to the relief of restriction on creation of third party interest in or over the land bearing Survey No. 25/2 by the respondent No. 3 to the said appeal was granted by order dated 4-5-1998, however, after issuance of notice and upon hearing the Advocates for the parties including the Advocate for the respondent No. 1 herein, it was ordered on 23-7-1998 that, "status quo as of today in the matter of possession to continue till the hearing and final disposal of the appeal subject to the condition that the parties will not create third party right or alienate or encumber the property" and with the said direction, the civil application was disposed of.
4. The petitioner herein filed the present petition on 9-4-2002 complaining of violation of the order dated 23-7-1998 in Civil Application No. 3202 of 1998 in Second Appeal No. 169 of 1998 accusing the respondent No. 1 herein, of having executed a sale deed dated 27-4-2001 thereby alienating an area admeasuring 16 gunthas from survey No. 25 in favour of the third party and that the said sale deed was registered in the office of the Sub-Registrar of Pen on 17-4-2002. Copy of the said sale deed was also produced alongwith the application. When the matter came up for hearing before this Court on 27-6-2002, whereupon after hearing the Advocate for the applicant and the respondent No. 2 and on perusal of records, this Court directed issuance of notice to the respondent No. 1 calling upon him to show cause as to why he should not be punished for wilful disobedience of the order dated 23-7-1998 passed in Civil Application No. 3202 of 1998 in Second Appeal No. 169 of 1998 on account of execution of the said sale deed thereby transferring the rights in the said property in favour of the third party. Pursuant to the service of the notice, the respondent No. 1 herein filed his affidavit in reply dated 12-9-2002. The respondent No. 2 is only a proforma party.
5. The learned Advocate appearing for the respondent No. 1 has urged that, in view of unconditional apology tendered by the respondent No. 1 in relation to the execution of the sale deed inspite of the order dated 23-7-2001, for the reasons and the circumstances mentioned in the affidavit in reply, the matter may be closed by accepting the said unconditional apology tendered by the respondent No. 1. Without prejudice, the proceedings are sought to be defended mainly on three grounds. Firstly that, the proceedings which are initiated are for criminal contempt, and the same is evident from the cause title of t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
