Back
2007 Supreme(Bom) 1200
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
S. A. BOBDE, J.
Shri V.D.Kavatkar, Registrar, Petitioner.
versus
Fatima Huseni Radhapurwala, Respondents.
CONTEMPT PETITION NO. 189 OF 2005 IN Int. Notice No. 660/ 2005
IN
R.A.D. & E. SUIT NO. 1155/1905 OF 2002
Decided on: 27TH & 28TH AUGUST, 2007.
Advocate Appeared
Mr.Jimmy Mehta with Mr.H.G. Bhambhani for the Petitioner/
Original Plaintiff.
Miss R.H.Bhandari i/by J.P.Thakkar for Respondent No.1.
Mr.J.S.Kini for the Respondent No.2.
Headnote:Contempt of Courts Act, 1971 - Section 2(c) - Code of Civil Procedure, 1908, Order XLI, Rule 1 - Constitution of India, Article 215-Contemnor had breached order of injunction of Court - For which he tendered unconditional apology - Lower Court had rejected his plea to act as agent of Court Receiver-Writ petition against that - Held that petitioner is liable to be convicted for civil contempt of Court.-In the present case, the contemner breached the injunction order after he was appointed as an agent of the Court Receiver by order dated 13th and 14th October, 2003. He actually took charge as agent of the Court Receiver on 20th April, 2005. Indeed it would not have been possible for him to exploit the situation and part with possession of the premises for a commercial gain but for the fact that he was in a possession as an agent of the Court Receiver. In fact no party would have agreed to pay for using the said premises unless the contemnor had some semblance of authority and possession. In the circumstances, it is clear that the contemner cannot be left to scrupulously avoid the judicial process and it is difficult to rely on his future conduct. Even accepting his undertaking may not serve the purpose since he appears to have inducted those persons in breach of the injunction order. In the circumstances of the case, Court is of view that the contemner forfeited the trust with which he was appointed as agent of the receiver and ought to be deprived of his status as an agent.
Thus contemnor is hereby convicted of a civil contempt of Court. However, his apology having been accepted he is not sentenced to undergo any punishment. However, he is removed from receivership as agent of the Court Receiver.
Contempt of Courts Act, 1971-Section 2(c)-Constitution of India, Article 215 - Reference from Small Causes Court-Charge framed for breach of order of injunction - Held that contemnor has wilfully breached the order of injunction. - In the application for taking action under the Contempt of Courts Act, the original plaintiff has alleged that the respondent No. 2 has parted with the possession of the premises in breach of the order of injunction. Earlier, the respondent No. 2 was carrying on business on his own. He has afterwards let out the premises to various persons by allowing them to do business in the cabins specially constructed.
In the circumstances, that the contemnor has wilfully breached the order of injunction. However, it must be noted that the contemnor has tendered an unconditional apology in writing. Along with the apology, prior to the hearing of this contempt petition, the contemnor has removed of his so called agents from the premises and restoring the possession with him being in sole occupation of the premises.
Contempt of Courts Act, 1971 - Section 3 - Contempt petition - Breach of order of injunction - Contemner, an agent of Court receiver for suit premises - Constructing cabins on suit premises to be used by other persons - Violation of Courts order - Amounts to civil contempt - Convicted for - Contemner tendered apology - Not sentenced - However, removed as agent of Court receiver. - In the present case, the contemner breached the injunction order after he was appointed as an agent of the Court receiver by order dated 13th & 14th October, 2003. He actually took charge as agent of the Court receiver on 20th April, 2005. Indeed it would not have been possible for him to exploit the situation and part with possession of the premises for a commercial gain but for the fact that he was in a possession as an agent of the Court receiver. In fact no party would have agreed to pay for using the said premises unless the contemner had some semblance of authority and possession. In the circumstances, it is clear that the contemner can not be left to scrupulously avoid the judicial process and it is difficult to rely on his future conduct. Even accepting his undertaking may not serve the purpose since he appears to have inducted those persons in breach of the injunction order. In the circumstances of the case, the contemner forfeited the trust with which he was appointed as agent of the receiver and ought to be deprived of his status as an agent.
High Court has sufficient power to ensure the due administration of justice and in order to do justice has ample powers to pass order in the nature of grant of injunction or eviction, appointment or removal of receivers and their agents. It is the duty of the Court to exercise these powers ex debito justitiae in proper cases. The present case is one such an appropriate case where inherent powers of High Court deserve to be exercised. High Court accordingly direct that the contemner’s status as an agent of the Court receiver shall be removed and that the receiver shall appoint any other person who is willing to act as an agent, including the plaintiff, having regard to be the agent on payment of royalty and security on usual terms.
The contemnor is hereby convicted of a civil contempt of Court. However, his apology having been accepted he is not sentenced to undergo any punishment. However, he is removed from receivership as agent of the Court receiver.
1. This is a Reference by the Small Causes Court at Mumbai under the Contempt of Courts Act, 1971.
2. An application was made by the original plaintiff in the suit for possession and upon hearing the respondents, the Small Causes Court made the reference of the orders dated 10th & 16th March, 2005 passed in Int.Notice No. 660/2005 in R.A.D.& E. Suit No. 1155/1905/2002 of the Small Causes Court, Mumbai.
3. In the course of the suit, the original plaintiff has alleged contempt of injunction order dated 13th & 14th of October, 2003 passed by the Small Causes Court, Mumbai in Interim Notice No.4877/2002 in R.A.D. & E. Suit No. 1155/1905 of 2002 taken out in the suit, which reads as follows : .
"The notice is partly made absolute. Prayer (a) is granted i.e. Registrar of this Court is hereby appointed as Court Receiver in respect of the shop premises i.e. Shop Premises viz. 72/74, first floor, Room No.1, Bhaji Pala Lane, Mumbai - 400 003, with all powers under Order 40 Rule 1 of CPC. The Court Receiver is hereby directed to take symbolic possession of the suit premises from the defendant No.2. The defendant No.2 will be the Agent of the Court Receiver in respect of the suit premises and will pay the rent to the Court Receiver and in turn the Court Receiver to pay the rent to the landlord in respect of the suit premises. The defendants, their agents and servants are hereby restrained by an order of temporary injunction from parting with possession or dealing and disposing in any manner of the suit premises vix. Shop Premises viz. 72/74, first floor, Room No.1, Bhaji Pala Lane, Mumbai 400 003, till disposal of the suit. Prayers (b),(c), (e), (f) and (g) are rejected.. In the circumstances of the case no order as to costs."
4. The suit is for recovery of four rooms totally admeasuring about 800 sq.ft. area. According to the original plaintiff he is a tenant of the respondent No.1. However, the respondent No.2 took forcible possession of the premises and has occupied it. In a notice of motion taken out by the plaintiff, the trial court passed an order of injunction in terms set out above.
5. In the application for taking action under the Contempt of Courts Act, the original plaintiff has alleged that the respondent No.2 has parted with the possession of the premises in breach of the order of injunction. Earlier, the respondent No.2 was carrying on business on his own. He has afterwards let out the premises to various persons by allowing them to do business in the cabins specially constructed.
6. The respondent No.2 denied the allegations. The trial court after hearing the respondents came to the conclusion that the respondent has parted with the possession of the premises. The trial court observed that in his application for opposing the notice of motion, there was no mention of others in possession of the premises. He had claimed that he was doing the business of timber. The trial court took into account affidavits of the plaintiff and his nephew and certain visiting cards of the persons doing business in the premises. 7. The trial court also considered affidavits of the persons who claimed to be functioning as commission agents of the respondent. By a detailed order, the trial court has come to the conclusion that the respondent No.2 has parted with the possession of the premises in violation of the court’s order.
8. Mr. Mehta, referred to the affidavit of plaintiff’s nephew and the visiting cards of the persons who are said to be doing business in the premises. Mr. Kini, the learned counsel for the respondent No.2 interalia relied on the affidavits of the persons who are said to be not in occupation of the premises but are acting as commission Agents of the respondent No.2.
9. The affidavits of other persons are vague. They merely state that they are acting as commission agents without disclosing the period from which they
