Monthly Archives: December 2013

Kanwar Singh Saini Vs. High Court of Delhi: Sept 23, 2011

Kanwar Singh Saini Vs. High Court of Delhi: Sept 23, 2011

Civil Procedure Code, 1908, O.39.R.2-A — Failure to obey the undertaking given in civil suit – Contempt proceedings- Once the suit has been decreed, the court could not entertain the application under Order 39 Rule 2A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed.

‘Liberty’ – the most cherished fundamental right, a basic human right, a “transcendental”, inalienable, and ‘primordial’ right, should not be put in peril without following the procedure prescribed by law and in a casual and cavalier manner.
Supreme Court of India
 Criminal Appeal No. 1798 of 2009
Hon’ble Judge(s):  P. Sathasivam and B.S. Chauhan
Date of Judgment: September 23, 2011
Kanwar Singh Saini Vs. High Court of DelhiJ U D G M E N T
Dr. B.S. Chauhan, J.1. ‘Liberty’ – the most cherished fundamental right, a basic human right, a “transcendental”, inalienable, and ‘primordial’ right, should not be put in peril without following the procedure prescribed by law and in a casual and cavalier manner. Instant case is an example where all proceedings in the suit as well as under the Contempt of Courts Act, 1971, (hereinafter called as ‘Act 1971’), have been taken without adverting to the procedure known in law.2. This Criminal Appeal has been preferred under Section 19 (1)(b) of the Act 1971 against the impugned judgment and order dated 20.7.2009 passed by the High Court of Delhi at New Delhi in Contempt Case (Crl.) No.9 of 2004, whereby the appellant has been convicted for committing contempt of court by violating the undertaking given by him to the Court at the time of disposal of the suit and awarded him simple imprisonment for four months.3. Facts and circumstances giving rise to this appeal are:

A. The appellant executed a sale deed in favour of one Mohd. Yusuf on 5.9.2002 in respect of the premises bearing No. 148, village Khirki, Malviya Nagar, New Delhi for a sum of Rs.2,10,000/- and got the said deed registered.

B. Mohd. Yusuf filed suit No. 106/2003 in the Civil Court, Delhi, on 26.4.2003 for permanent injunction alleging that the appellant tried to dispossess him on 24.4.2003 from the said suit premises. His application for interim relief was rejected. The Civil Court issued summons and notice to the appellant/defendant.

C. In response to the said summons and notice, the appellant filed a written statement on 29.4.2003 admitting the execution of sale deed in respect of the suit premises for a sum of Rs.2.10 lacs and handing over its possession to the plaintiff but denied the allegation that he had made any attempt to dispossess the plaintiff. However, the appellant raised the grievance that the entire consideration of sale has not been paid to him as a sum of Rs.25,000/- still remained outstanding.

D. The Civil Court while taking his written statement on record also recorded the statement of the appellant/defendant in person that he had neither threatened to dispossess nor he would dispossess the plaintiff. The plaintiff’s counsel accepted the statements made by the appellant/defendant in the court and the case was adjourned for 12.5.2003. On 12.5.2003, plaintiff asked the court to dispose of the suit in view of the statement made by the appellant/defendant. The court disposed of the suit directing the appellant/defendant not to breach the undertaking given by him.

E. Appellant’s son filed a suit on 11.8.2003 for partition in respect of two plot Nos. i.e. 147A and 148 claiming that he had a share in the said properties.

F. Mohd. Yusuf-plaintiff in the Suit No. 106/2003 filed an application before the High Court under the provisions of Act 1971 alleging the violation of the undertaking given by the appellant to the civil court. The application came up for hearing on 11.9.2003 but none appeared to press the same. The High Court disposed of the application vide order dated 11.3.2003 giving liberty to the said applicant to approach the civil court. The said order was passed without issuing notice to the appellant or anyone else.

G. Mohd. Yusuf filed an application dated 15.9.2003 under Order XXXIX Rule 2A of Code of Civil Procedure, 1908 (hereinafter called ‘CPC’) read with Sections 10, 11 and 12 of the Act 1971 against the appellant, his wife and two sons alleging that when he visited the suit premises on 4.8.2003, he found that the locks of the main door had been broken by them. The appellant filed reply to the said application on 22.10.2003 alleging that the execution of the sale deed dated 5.9.2002 and his written statement and the statement made before the court on 29.4.2003 had been obtained by fraud.

H. While hearing the said application, the Court vide order dated 16.2.2004 recorded that as the appellant had taken inconsistent pleas to his written statement filed earlier and violated the undertaking while making his oral statement, a prima facie case of contempt was made out and referred the matter to the High Court to be dealt with under the provisions of Act 1971.

I. The appellant filed a suit on 23.2.2005 for cancellation of the sale deed dated 5.9.2002. J. The High Court while accepting the reference as Criminal Contempt, issued show cause notice to the appellant on 2.2.2005 directing him to appear in person on 16.2.2005. The Court vide impugned judgment and order dated 20.7.2009 held the appellant guilty of criminal contempt on the basis of inconsistent pleas taken by him and also for the breach of undertaking and imposed simple imprisonment for four months. The appellant was granted bail by this Court on 29.9.2009. Hence, this appeal.

4. Mr. Tanmaya Mehta, learned counsel appearing for the appellant has raised the grievance mainly, that it was a case of civil contempt which could have been dealt with by the Trial Court itself and by no means could be treated as a criminal contempt case. The High Court erred in treating the same as criminal contempt and awarded the punishment to the appellant which was not warranted under the facts and circumstances of the case and therefore, the judgment and order of the High Court convicting the appellant is liable to be set aside.

5. Mr. Shree Prakash Sinha, learned counsel appearing for the plaintiff – Mohd.Yusuf, intervener, has opposed the appeal contending that the appellant and his family members had made false and misleading statements to scuttle the interest of justice. The appellant has not only committed criminal contempt but also abused the process of the court. Thus, no interference is called for.

6. The suit was filed on 26.4.2003 and notice was issued returnable just after three days, i.e. 29.4.2003 and on that date the written statement was filed and the appellant appeared in person and his statement was recorded. Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the “first hearing of the suit” which comes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order X Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC.

The cumulative effect of the above referred provisions of CPC comes to that the “first hearing of the suit” can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after 6filing of the written statement and framing of issues, the hearing of the case commences. The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause.

Hearing, therefore, should be first in point of time after the issues have been framed. The date of “first hearing of a suit” under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the “first hearing of the suit” prior to determining the points in controversy between the parties i.e. framing of issues does not arise.

The words the “first day of hearing” does not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. [Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar, AIR 1987 SC 197; Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525; and M/s Mangat Singh Trilochan Singh thr. Mangat Singh (dead) by Lrs. & Ors. v. Satpal, AIR 2003 SC 4300]

7. From the above fact situation, it is evident that the suit was filed on 26.4.2003 and in response to the notice issued in that case, the appellant/defendant appeared on 29.4.2003 in person and filed his written statement. It was on the same day that his statement had been recorded by the court. We failed to understand as to what statutory provision enabled the civil court to record the statement of the appellant/defendant on the date of filing the written statement. The suit itself has been disposed of on the basis of his statement within three weeks of the institution of the suit. The order sheets of the suit read as under:

26.4.2003:

“Present: Ld. counsel for the plaintiff. Arguments on injunction application heard. No ground for granting ex-parte stay order at this stage, request in this regard is declined. Issue summons of the suit and notice of the interim application to the defendants on PF and RC, courier, UPC and dasti also for 29-04-2003.

Sd/-

CJ/Delhi

26-04-2003”

29.4.2003:

“Counsel for the plaintiff.

Defendant in person in person.

He states that he is not likely to dispossess the plaintiff from the suit premises as he has already sold the same. However, he has stated that he has to take certain amount from the plaintiff towards expenses which has not been paid by the plaintiff. There is counter claim of the defendant affixing the court fee and in any case, he has legal remedy to exercise it. The defendant is ready to make the statement. Let it be recorded.

CJ/Delhi

“Statement of Shri Kanwar Singh Saini, Defendant on

S.A.

Neither I have threatened the plaintiff nor I will dispossess him as I have already sold the suit property vide sale deed. The suit of the plaintiff may kindly be dismissed as there is no merit in the same.

R.O. & A.C.

Sd/

(Kanwar Singh Saini)

Sd/-

CJ/DELHI

29.4.2003”

“Statement of Ld. Counsel for plaintiff Shri Iqbal Ahmed without oath:

I have heard the statement of defendant and I have instruction from the plaintiff to accept the same. The suit of the plaintiff may kindly be disposed of. R.O. & A.C.

Sd/-

(Iqbal Ahmed)

Sd/-

CJ/DELHI

29.4.2003

9 12.5.2003:

“I have heard the statement of defendant and I accept the same. My suit be disposed of in terms of statement of defendant.

RO & AC

Sd/-

(Mohd. Yusuf)

Sd/-

CJ/DELHI

12.5.2003″

Thereafter the learned Judge passed the following order:- ”

12.5.2003

Present: Plaintiff in person. Ld. Counsel for the defendant. Statement of plaintiff is recorded on a separate sheet. Statement of defendant is already recorded. Keeping in view of the statements of parties, the suit of the plaintiff is disposed of. Parties are bound by their statements as given in the court. No orders as to costs. File be consigned to Record Room.

Sd/-

CJ/DELHI

12.5.2003″

8. Be that as it may, the so-called statement/undertaking given by the appellant/defendant culminated into the decree of the Civil Court dated 12.5.2003. Thus, the question does arise as to whether the 1application under Order XXXIX Rule 2A CPC or under the Act 1971 could be entertained by the Civil Court and whether the matter could be referred to the High Court at all.

9. Application under Order XXXIX Rule 2A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order XXXIX Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. (Vide: Dr. A.R. Sircar v. State of U.P. & Ors., 1993 Suppl. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, UPSRTC & Anr., 1995 Suppl (2) SCC 726; Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur, through its Manager & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; M/s. GTC Industries Ltd. v. Union of 1India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corpn. v. C.L. Mishra, (2005) 8 SCC 423).

10. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed.

Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character.

Thus, the violation of permanent injunction can be set right in executing the proceedings and not the 1contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.

11. In Food Corporation of India v. Sukha Deo Prasad, AIR 2009 SC 2330, this Court held that the power exercised by a court under Order XXXIX Rule 2A is punitive in nature, akin to the power to punish for civil contempt under the Act 1971. Therefore, such powers should be exercised with great caution and responsibility. Unless there has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the question of entertaining an application under Order XXXIX Rule 2A does not arise. In case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or breach under Order XXXIX Rule 2A. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit.

12. The proceedings under Order XXXIX Rule 2A are available only during the pendency of the suit and not after conclusion of the trial of the suit. Therefore, any undertaking given to the court during the pendency of the suit on the basis of which the suit itself has been 1disposed of becomes a part of the decree and breach of such undertaking is to be dealt with in execution proceedings under Order XXI Rule 32 CPC and not by means of contempt proceedings.

Even otherwise, it is not desirable for the High Court to initiate criminal contempt proceedings for disobedience of the order of the injunction passed by the subordinate court, for the reason that where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both. The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act.

Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible. (See: Hungerford Investment Trust Ltd. (In voluntary Liquidation) v. Haridas Mundhra & Ors., AIR 1972 SC 1826).

13. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute.

(Vide: The United Commercial Bank Ltd. v. Their Workmen AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios Pvt. Ltd. v. Navrang Studio & Anr., AIR 1981 SC 537; Sardar Hasan Siddiqui & Ors. v. State Transport Appellate Tribunal, U.P., Lucknow & Ors. AIR 1986 All. 132; A.R. Antulay v. R.S. Nayak & Anr., AIR 1988 SC 1531; Union of India & Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement Trust, Karnal v. Prakash Wanti (Smt.) (Dead) & Anr., (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. & 1Ors., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Kesar Singh & Ors. v. Sadhu, (1996) 7 SCC 711; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213; and Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC 2484).

When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, “that performance cannot be enforced in any other manner”. Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. (See: Doe d. Rochester (BP) v. Bridges, 109 ER 1001; Barraclough v. Brown, 1897 AC 615; The Premier Automobiles Ltd. v. K.S.Wadke & Ors., AIR 1975 SC 2238; and Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) thr. L.Rs., (1990) 1 SCC 193).

14. In Samee Khan v. Bindu Khan, AIR 1998 SC 2765, this Court explained the distinction between a civil and criminal contempt observing that enforcement of the order in civil contempt is for the 1benefit of one party against another, while object of criminal contempt is to uphold the majesty of law and the dignity of the court. The scope of the proceedings under Order XXXIX Rule 2A CPC is entirely different. It is a mode to compel the opposite party to obey the order of injunction by attaching the property and detaining the disobedient party in civil prison as a mode of punishment for being guilty of such disobedience. Breach of undertaking given to the court amounts to contempt in the same way as a breach of injunction and is liable to be awarded the same punishment for it.

15. It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide: State of Punjab & Ors. v. Mohinder Singh Randhawa & Anr ., AIR 1992 SC 473).

16. The case requires to be considered in the light of the aforesaid settled legal proposition. Whatever may be the circumstances, the court decreed the suit vide judgment and decree dated 12.5.2003. The said decree was passed on the basis of admission/undertaking made by the appellant on 129.4.2003 and the pleadings taken by him in his written statement. Therefore, in a case where there was any disobedience of the said judgment and decree, the application under Order XXXIX Rule 2A CPC should not have been entertained. Such an application is maintainable in a case where there is violation of interim injunction passed during the pendency of the suit. In the instant case, no interim order had ever been passed. Thus, the appropriate remedy available to the decree holder-Mohd. Yusuf had been to file application for execution under Order XXI Rule 32 CPC. The procedure in execution of an injunction decree is same as prescribed under Order XXXIX Rule 2A i.e. attachment of property and detention of the disobedient to get the execution of the order. In view thereof, all subsequent proceedings were unwarranted.

17. Application of the decree holder had been for violation of the undertaking which at the most could be civil contempt as defined under Section 2(b) of the Act 1971 as it includes the wilful breach of an undertaking given to a court. Therefore, the Trial Court failed to make a distinction between civil contempt and criminal contempt. A mere disobedience by a party to a civil action of a specific order made by the court in the suit is civil contempt for the reason that it is for the sole benefit of the other party to the civil suit. This case remains to the extent that, in such a fact situation, the administration of justice could be undermined if the order of a competent court of law is permitted to be disregarded with such impunity, but it does not involve sufficient public interest to the extent that it may be treated as a criminal contempt. It was a clear cut case involving private rights of the parties for which adequate and sufficient remedy had been provided under CPC itself, like attachment of the property and detention in civil prison, but it was not a case wherein the facts and circumstances warranted the reference to the High Court for initiating the proceedings for criminal contempt.

18. The High Court in para 29 of the impugned judgment has taken note of various judgments of this Court including Dhananjay Sharma v. State of Haryana & Ors., (1995) 3 SCC 757; Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14; and Murray & Co. v. Ashok Kr. Newatia & Anr., (2000) 2 SCC 367, wherein it has been held that filing of a false affidavit or taking false pleadings in the court amounts to criminal contempt. The High Court failed to appreciate the nature/status of proceedings in which the alleged false affidavit had been filed. The instant case is quite distinguishable on facts from those cases. In the instant case, proceedings under Order XXXIX Rule 2A CPC were not maintainable at all. Had the complainant Mohd. Yusuf filed the execution proceedings under Order XXI Rule 32 CPC, the court could have proceeded in accordance with law without going into the averments raised therein by the appellant.

19. In a given case if the court grants time to a tenant to vacate the tenanted premises and the tenant files an undertaking to vacate the same after expiry of the said time, but does not vacate the same, the situation would be altogether different. (See: Sakharan Ganesh Aaravandekar & Anr. v. Mahadeo Vinayak Mathkar & Ors., (2008) 10 SCC 186; and Mahender Kumar Gandhi v. Mohammad Tajer Ali & Ors., (2008) 10 SCC 795). In an appropriate case where exceptional circumstances exist, the court may also resort to the provisions applicable in case of civil contempt, in case of violation/breach of undertaking/judgment/order or decree.

However, before passing any final order on such application, the court must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is wilful and intentional. Though in a case of execution of a decree, the executing court may not be bothered whether the disobedience of the decree is wilful or not and the court is bound to execute a decree whatever may be the consequence thereof. In a contempt proceeding, the alleged contemnor may satisfy the court that disobedience has been under some compelling circumstances, and in that situation, no punishment can be awarded to him. (See: Niaz Mohammad & Ors. v. State of Haryana & Ors, (1994) 6 SCC 332; Bank of Baroda v. Sadruddin Hasan Daya & Anr., AIR 2004 SC 942; and Rama Narang v. Ramesh Narang & Anr., AIR 2006 SC 1883) Thus, for violation of a judgment or decree provisions of the criminal contempt are not attracted.

20. The application filed under Order XXXIX Rule 2A CPC bearing Misc. No.89/2003 by the decree holder contains the following pleadings and prayer was made to punish the said contemnors: “To his utter amazement, the petitioner-applicant on 4th of August 2003 on visiting the site (148, Village Khirki, New Delhi) learnt that the respondents in league and collusion with one another in deliberate and wilful breach of the aforementioned statement, assurance and/or undertaking had broken open locks and doors of the premises in reference 148, Village Khirki, New Delhi and taken possession thereof, thereby committing grave contempt of the Hon’ble Court (by breach of the aforementioned statement, assurance and/or undertaking furnished on 29th of April 2003 2 as accepted by the learned Civil Judge on 12th May 2003).”

The Civil Court considered the said application; took notice of the facts and in its order dated 16.2.2004 held: “It also shows that plaintiff was in possession of the suit property on the date of making the statement. As on today, the respondents are in possession of the suit property. Even the respondent had not denied this fact rather their contention is that plaintiff was never in possession of the suit property. Further, a local commissioner was appointed and has also corroborated the fact that respondents are in possession. Therefore, prima facie, it appears that plaintiff has been dispossessed from the suit property by the respondents. The contention of the respondent no.1 that plaintiff was never in possession runs counter to the written statement of defendant filed in the original suit. Moreover, this fact needs evidence and evidence will be led only before Hon’ble High Court.

Therefore, prima facie case for reference of the contempt petition has been made out.” The Court reached the following conclusion : “As to the contention of learned counsel for respondent no.1 that evidence is required before making a reference, the provision of section 11 of the Contempt of Courts Act, 1971 are to be noted. Section 11 says that it is the Hon’ble High Court which has jurisdiction to inquire into or try the contempt petition. Therefore, the contention has no force. This Court has only to see that prima facie case exist for referring the contempt.” 2 The Court made the reference as under: “However, against other respondents there is no material for making the reference. In view of the above, a reference is made to the Hon’ble High Court with humble prayer to try the contempt petition against respondent no.1 and to punish the guilty accordingly. Application is disposed of accordingly.”

21. In view of the above discussion, as such proceedings were not maintainable, the order of reference itself was not warranted. It also becomes crystal clear that the appellant had been subjected to unfair procedure from the institution of the suit itself. The suit had been “disposed of” in great haste without following the procedure prescribed in CPC. Once the suit has been decreed, the court could not entertain the application under Order XXXIX Rule 2A CPC as the suit had already been decreed and such an application is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In the instant case, no interim order had ever been passed and the undertaking given by the appellant/defendant not to dispossess the said plaintiff culminated into a final decree and thus, if any further action was required, it could be taken only in execution proceedings. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in 2order to redress the grievances of the appellant/defendant. Judgment and order impugned cannot be sustained under any circumstance.

22. The courts below have proceeded with criminal contempt proceedings not for disobeying any judgment or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit. Purposes of initiation of contempt proceedings are two-fold: to ensure the compliance of the order passed by the court; and to punish the contemnor as he has the audacity to challenge the majesty of law. In the instant case, admittedly, the grievance of the complaint had been disobedience of decree/order of the civil court dated 12.5.2003. The High Court convicted the appellant and sent him to jail but did not grant any relief so far as the enforcement of the order dated 12.5.2003 is concerned. We failed to understand as under what circumstances, the High Court did not even consider it appropriate to enforce the judgment/order/decree if it had been disobeyed by the appellant. The instant case is a glaring example of non-application of mind and non-observance of procedure prescribed by law for dealing with such matters. Entire proceedings have been conducted in most casual and cavalier manner.

23. Learned counsel for the contesting respondent has placed a very heavy reliance on the judgments of this Court in Palitana Sugar Mills Private Limited & Anr. v. Vilasiniben Ramachandran & Ors., (2007) 15 SCC 218; and C. Elumalai & Ors. v. A.G.L. Irudayaraj & Anr., AIR 2009 SC 2214, wherein this court held that wherever there is a wilful disobedience/contumacious conduct – deliberate flouting of the order of the court, it amounts to contempt and it becomes the duty of the court to exercise its inherent power to set the wrong right as a party cannot be permitted to perpetuate the wrong by disobeying the order further. In the case at hands, the court initiated criminal contempt proceedings but ultimately after convicting the appellant did not enforce the order passed by the Civil Court dated 12.5.2003.

24. In Daroga Singh & Ors. v. B.K. Pandey, (2004) 5 SCC 26, this Court rejected the plea of the contemnors that the High Court could not initiate the contempt proceedings in respect of the Contempt of the Courts subordinate to it placing reliance upon earlier judgments in Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149; Brahma Prakash Sharma & Ors. v. The State of U.P., AIR 1954 SC 10; and State of Madhya Pradesh v. Revashankar, AIR 1959 SC 2102. The Court further explained the scope of contempt proceedings observing: “………. For the survival of the rule of law the orders of the courts have to be obeyed and continue to be obeyed unless overturned, modified or stayed by the appellate or revisional courts. The court does not have any agency of its own to enforce its orders. The executive authority of the State has to come to the aid of the party seeking implementation of the court orders. The might of the State must stand behind the court orders for the survival of the rule of the court in the country. Incidents which undermine the dignity of the courts should be condemned and dealt with swiftly……. ………. If the judiciary has to perform its duties and functions in a fair and free manner, the dignity and the authority of the courts has to be respected and maintained at all stages and by all concerned failing which the very constitutional scheme and public faith in the judiciary runs the risk of being lost.”

25. The contempt proceedings being quasi-criminal in nature, the standard of proof requires in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the Criminal Jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The case should not rest only on surmises and conjectures. In Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., AIR 1969 SC 189, this Court observed as under: “A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished……… Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.” (Emphasis added)

26. In view of the above, as the application under Order XXXIX Rule 2A CPC itself was not maintainable all subsequent proceedings remained inconsequential. Legal maxim “sublato fundamento cadit opus” which means foundation being removed structure falls is attracted.

27. Thus, taking into consideration, the fact situation involved in the case, the appeal is allowed. The impugned judgment and order dated 20.7.2009 passed by the High Court of Delhi at New Delhi in Contempt Case (Crl.) No. 9 of 2004 is hereby set aside. His bail bonds stand discharged.

28. However, we clarify that any observation made in this judgment shall not affect, in any manner, merit of other cases pending between the parties in regard to the Suit property.

……………………………J. (P. SATHASIVAM)

……………………………J. (Dr. B.S. CHAUHAN)

New Delhi,

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Delay in judges’ appointment clogs lower courts in Bangalore: 25 Dec 2013

As if frivolous petitions were not enough to clog the City’s lower courts, the delay in the appointment and promotion of judges has severely crippled the judicial proceedings. 

A whopping 56,000 cases have been pending in lower courts for the last seven months. The problem arose after the State government abolished 16 fast-track courts in June 2013.

KarHC-Bldg-December 25, 2013-DH

“Judges of the fast-track courts were promoted as district judges and the courts converted into City civil and sessions courts. But no judges have been appointed to them yet,” said A P Ranganath, the general secretary of Advocates’ Association, Bangalore (AAB). 

The present City civil and sessions judges, who have been given concurrent charge of the new courts, find it quite a task to discharge the additional duties. “At least five courts are without a judge as the previous judges were promoted to the High Court. Nearly 50 per cent of the judges are overworked and pending cases have been increasing,” Ranganath added. “Even those arrested for minor offences are unable to obtain bail.”

Probation not confirmed 

On the other hand, 223 judges appointed as magistrates and civil judges of junior-level courts in 2008-09 are still awaiting confirmation of their probationary period. “As per norms, their service should be confirmed within two years of appointment,” said a senior advocate. The Chief Justice of Karnataka High Court, D H Waghela, has assured the AAB that the City civil court will function smoothly and he would make appropriate appointments soon, an AAB office-bearer said.

…..Bangalore, December 25, 2013, DHNS:

https://jailcorrupt867judges.files.wordpress.com/2013/11/4pgs-6711-12-crtorder-sec-407.pdf

https://jailcorrupt867judges.wordpress.com/2013/08/26/memo-dated-24-august-2013-in-c-c-no-6711-of-2012-to-make-an-early-order-report/

http://www.deccanherald.com/content/376743/delay-judges-appointment-clogs-lower.html

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Vinay Chandra Mishra as the new advocate general of UP: In 1994, new AG was suspended from legal practice for threatening a judge:9 March 1994

LUCKNOW: Samajwadi Party government’s decision to appoint Vinay Chandra Mishra as the new advocate general of UP has led to many an eyebrow being raised in the legal fraternity. Mishra, supposedly close to SP chief Mulayam Singh Yadav, was awarded six-week simple imprisonment and suspended from legal practice for three years by the Supreme Court in 1994 after he allegedly misbehaved with a sitting judge of Allahabad high court, S K Keshote, threatening to get him transferred or impeached by parliament.The case dates back to 1994 when Mishra was representing one M/s Bansal Forging Limited which took loan from UP Financial Corporation and defaulted on repayment installments. The corporation proceeded against the company under section 29 of the UP Financial Corporation Act. The company too filed a civil suit against the corporation and also an application for grant of temporary injunction. The trial court passed an order that the corporation would not seize the factory of the company, which would, however, pay the amount of installment and furnish security for the disputed amount.

The company, which was represented by Mishra, moved the high court on March 9, 1994 advancing arguments that the said court had no jurisdiction to pass the order for payment of installment of loan and further no security could have been ordered. According to the letter of justice SK Keshote (dated March 10, 1994), which he wrote to then acting chief justice of Allahabad high court, justice VK Khanna, on the day of hearing, when he (justice Keshote), while sitting with another judge, justice Anshuman Singh, questioned Mishra under which provision this order had been passed, he (Mishra) started shouting and said that “no question could have been put to him”. “He will get me transferred or see that impeachment motion is brought against me in parliament,” justice Keshote wrote while referring to Mishra.

“Mishra further said that he had turned out many judges,” justice Keshote said and added that Mishra created quite a scene in the court. “In sum and substance it is a matter where except to abuse me of mother and sister he insulted me like anything,” Keshote recalled. TOI has a copy of this letter from which the quote is taken verbatim.

Justice Khanna forwarded this letter to then chief justice of India (CJI) on April 5, 1994. The CJI constituted a bench to hear the matter on April 15, 1994, when the SC found criminal contempt of court committed by Mishra, issuing him a show cause notice saying as why no contempt proceedings be initiated against him.

In pursuant to the notice, Mishra filed an affidavit on May 10, 1994, in which he stated that justice Keshote conveyed he was going to set aside the entire order, against a portion of which Mishra had come in appeal. According to Mishra, it was justice Keshote who lost his temper and told him in express words that he would set aside the order in toto, disregarding what he (Mishra) said. Mishra said, “being upset over what I felt was an arbitrary approach to judicial process. I got emotionally perturbed and my professional and institutional sensitivity got deeply wounded.”

Mishra claimed in his affidavit that the justice Keshote got a “little heated up” and made the following observations, “I am from the Bar and if need be I can take to goondaism….I never opted for Allahabad. I had opted for Gujarat and Himanchal Pradesh. I do not know why chief justice of India disregarded my options and transferred me to this place, which I never liked.”

The SC, after hearing the case, went by the version of justice Keshote. In its observation, the SC found Mishra guilty of the offence of criminal contempt of the court. The court said Mishra “interfered with and obstructed the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language, and convict him for the said offense.”

The apex court had observed that since Mishra is a senior member of the Bar and also adorns the high offices such as those of the Chairman of Bar Council Of India, the president of UP high court Bar Association, Allahabad and others, his conduct is bound to influence members of the Bar all over the country.

Mishra, who hails from Etawah, the home town of Samajwadi Party (SP) chief Mulayam Singh Yadav, was appointed Advocate General by Governor B L Joshi on Wednesday, on the recommendation of chief minister Akhilesh Yadav. When asked to comment, a senior advocate of the Lucknow bench of Allahabad high court said the appointment of Mishra was certainly surprising. “Does the state government want to reward lawyers who have faced criminal contempt cases,” the lawyer wondered.

,TNN | Nov 9, 2013, 03.00 AM IST………http://timesofindia.indiatimes.com/city/lucknow/In-1994-new-AG-was-suspended-from-legal-practice-for-threatening-a-judge/articleshow/25462532.cms

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Chargesheet served to Rajasthan HC official in sex-scandal: tarnishing the image and credibility of judiciary and character assassination of judges: Dec 23, 2002

A charge-sheet has been served upon Rajasthan High Court official, involved in a sex scandal, for tarnishing the image and credibility of judiciary and character assassination of judges.Deputy Registrar (record), Govind Kalwani, already suspended from job, was served the charge-sheet on Sunday under section 16 of the Rajasthan Civil Services (classification, control and appeal) rules, 1958 that provides major penalty, including dismissal, High Court sources said in Jodhpur on Monday.Kalwani is accused of seeking sexual favour for himself and a sitting judge Arun Madan from a lady doctor Sunita Malviya running a health clinic in Jodhpur, in return of judicial favour in a case pending against her.

Malviya had alleged in her complaint that Kalwani sought sexual favour when he visited her clinic on October 18 and 21 this year and talked to Justice Madan on mobile phone in this connection.

Describing his act as gross misconduct, the charge-sheet said Kalwani tarnished the image and credibility of judiciary bringing disrepute to the Rajasthan High Court.

It also told the suspended official that he had attempted character assassination of judges of the court by saying such things against them which were false to his knowledge.

Since the name of a sitting judge was also involved in the scandal, the then Chief Justice of India G B Pattanaik constituted a three-member committee of judges from the Punjab and Haryana high court, the Dehli High Court and the Patna High Court for in-house inquiry into the conduct of the judge.

The committee held its sitting in Jodhpur early this month and invited concerned people to hear their versions. Those appeared before the committee included complainant Sunita Malviya, accused Govind Kalwani and judge Arun Madan.

Meanwhile, the Rajasthan High Court Bar Association has announced a boycott of Madan’s court till his name is cleared in the controversy.

………….. http://expressindia.indianexpress.com/news/fullstory.php?newsid=17900

Press Trust of India 

Posted: Dec 23, 2002 at 1046 hrs IST

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12 NUJS profs condemn #InternJudge ‘character assassination’, call college to expedite AK Ganguly action: 25 Dec 2013

Twelve faculty members of NUJS Kolkata, the alma mater of the former student who accused retired Supreme Court judge AK Ganguly of sexual harassment during her internship a year ago, have issued a statement in her support today.

Earlier this month NUJS vice chancellor Ishwara Bhatt said that the university would discuss Ganguly’s position at the college, where he remains an honorary professor, at the next executive council meeting in January 2014. Ganguly has denied any “misbehaviour” of sexual nature, which a Supreme Court committee of three judges prima facie established after hearing testimonials of the intern (“SJ”), three witnesses on her behalf and Ganguly.

On the 6th of November, 2013, Ms. [SJ], one of our former students wrote a blog post highlighting the conflicting range of emotions that she underwent in the aftermath of sexual harassment at the hands of a retired judge of the Supreme Court of India. Subsequent to this, the Chief Justice of India constituted a Committee (SCC) to look into the charges leveled by her. SCC found that [SJ]’s statements “prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)”. After this, key portions from [SJ]’s affidavit outlining the horrific incident was disclosed to a newspaper by a high ranking law officer of the country. Further, press reports indicate that the Attorney General of India has opined to the Union Home Ministry that “[…] [it] is a fit case for action and there is enough evidence to proceed against the former Supreme Court judge”.

Considering the nature of allegations, and noting that [SJ] was a student, and the former judge was an honorary professor of NUJS at the time of incident, we feel that the latter’s continued association with our institution undermines the ideals of NUJS, an institution that has always strived to teach and foster justice, including gender justice. We believe that the position of a Professor is that of trust, and requires that such person be above reproach, especially above allegations of misbehaviour with students, particularly when such allegations have been found to have prima facie merit by a high level committee. Given that the former judge continues to remain an honorary professor at NUJS, we request the NUJS administration to take immediate steps to see to it that necessary action is initiated against the former judge.

We acknowledge the position taken by the Vice Chancellor, as reported in the media, about placing the matter of institution’s continued association with the former judge in the next Executive Council meeting. However in light of the findings of SCC and Supreme Court’s direction in Vishaka requiring the employer to take steps affirmatively, we call upon the NUJS administration including the Executive Council, the body responsible for appointments, to appropriately address this matter with utmost urgency. Till he is exonerated from all the charges leveled by [SJ], the University should, at the very least, dissociate itself from him. We must clarify here that we respect the right of the former judge and all other parties to pursue appropriate legal remedies and defend themselves as per due process of law.

We also note with concern the unwarranted statements from several quarters attributing political motives to [SJ]’s blog posts and deposition. We are particularly appalled at the insinuation by the retired judge that [SJ] is a political pawn and strongly condemn this character assassination. We also condemn all other statements that attempt to politicize the issue. Such statements are deeply disrespectful to [SJ] and trivialize her experience. These insinuations are also symptomatic of the manner in which issues of gender and power are turned into partisan political contests and we call upon all to resist such attempts.

1. Shamnad Basheer, MHRD Chaired Professor of IP Law, NUJS
2. Saurabh Bhattacharjee, Assistant Professor, NUJS
3. Anirban Chakraborty, Assistant Professor, NUJS [On Leave]
4. Lovely Dasgupta, Assistant Professor, NUJS
5. Ruchira Goswami, Assistant Professor, NUJS
6. Daniel Mathew, Assistant Professor, NUJS
7. Nandan Nawn, Assistant Professor, NUJS
8. Arup Kumar Poddar, Associate Professor, NUJS
9. Tilottama Raychaudhuri, Assistant Professor, NUJS
10. Shameek Sen, Assistant Professor, NUJS
11. N.S. Sreenivasulu, Associate Professor, NUJS
12. TVGNS Sudhakar, Associate Professor, NUJS

http://www.legallyindia.com/201312254205/Bar-Bench-Litigation/nujs-profs-condemn-internjudge-character-assasination

Read more on what legal steps could happen next in the #InternJudge story

Related Articles
  • Previous storyInterns’ new statement rubbishes AK Ganguly’s claims of ‘powerful quarters’ conspiracy

 

…………

Breaking By Kian Ganz Wednesday, 25 December 2013, 17:09 Bar, Bench & Litigation

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Hazare movement has opened new dimensions of democracy: Pranab: 19, Dec 2013

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Children present roses to Anna Hazare immediately after Lokpal Bill was passed by the Lok Sabha. File photo: Vivek Bendre
The HinduChildren present roses to Anna Hazare immediately after Lokpal Bill was passed by the Lok Sabha. File photo: Vivek Bendre
………………………

A day after Parliament approved the landmark Lokpal bill, President Pranab Mukherjee on Thursday said movements like that of Anna Hazare have opened new dimensions of democratic structure suggesting that they cannot be brushed aside.

In extempore remarks made during the annual endowment lecture of Intelligence Bureau in New Delhi, he referred to the conventional thought of democracy which meant periodical elections and review of performance of the Government but that has changed now.

“Just 10 years ago nobody could think of the social activists, non-governmental organizations…they will not only demand that a particular piece of legislation is to be enacted to protect the interest of the people as they perceive but they insist that you have to adopt this model, this structure.

“We shall have to agree and if we cannot….keep it under carpet…These are the types of challenges which we are facing today,” he said in an apparent reference to the adoption of the Lokpal bill for which a spirited campaign was mounted by Mr. Hazare in the last over two years.

Referring to Mr. Hazare’s movement, Mr. Mukherjee said when it was at its height more than two years ago Prime Minister Manmohan Singh had asked him to head Group of Minister to have negotiations with the anti-corruption campaigner.

He said he was even asked during a trip in Vietnam as to how he would respond to that movement.

Maintaining that he was responding as a student of politics, he said “it is opening new dimensions of our democratic structure which we shall have to address and what is that new dimension.”

Earlier, he said, it was thought that democracy meant people would choose their elected representatives who will make legislations for them and administer for them. At the end of that stipulated period “we shall have an account from them how have we been successful or not”.

……………..PTI.

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Now SECOND intern claims she was sexually harassed by a DIFFERENT former Supreme Court judge, but Ganguly panel refuses to investigate: 18 Dec 2013

At a time when the demand for action against former Supreme Court judge A.K. Ganguly is at its peak, Mail Today has learnt that Chief Justice of India P. Sathasivam had received another complaint of sexual harassment by an intern against another recently retired judge of the apex court.

Mail Today has learnt from a highly-placed source that the intern had sent the complaint against this judge around two weeks ago, when a panel of three judges was hearing the accusations against Justice (Retd) Ganguly. But, it is learnt, the second intern has been told by the apex court that it can’t take any action to help her in this case.

“A senior law officer sent an affidavit to the Chief Justice affirming in a sealed cover that another intern had levelled allegation of sexual harassment against another recently retired Supreme Court judge,” said the source.

More scandal: It seems controversies of a sexual nature won't leave the Supreme Court aloneMore scandal: It seems controversies of a sexual nature won’t leave the Supreme Court alone

 

“But in a full court meeting (which comprises all the judges of the Supreme Court) convened to take a call on the Ganguly issue, a decision was taken that no more complaints against retired judges will be entertained by the court,” the source said.

This has effectively shut the door for any response to the second intern’s complaint from the court.

Mail Today contacted Additional Solicitor General Indira Jaising, who has led the charge against Justice Ganguly, but she said that she had no comment on this matter.

Supreme Court Public Relations Officer Rakesh Sharma and Secretary General Ravindra Maithani said they did not have any information of a complaint sent to the Chief Justice of India.

KOLKATALAWYERS RALLY IN SUPPORT OF GANGULY

 

In a statement posted on the official website of the Supreme Court on December 5, 2013 after the full court meeting, Chief Justice Sathasivam said it did not have jurisdiction over retired judges.

HOW THE GANGULY CASE UNFOLDED

 

“As decided by the full court in its meeting dated 5th December, 2013, it is made clear that the representations made against former judges of this court are not entertainable by the administration of the Supreme Court,” the notice said.

Justice Sathasivam had said the three-judge panel which probed the allegations by an intern against Justice Ganguly was set up after her blog and a media report created an impression that the person involved was a serving judge when the incident took place.

The three-judge committee concluded that Justice Ganguly had indulged in unwelcome verbal and non-verbal conduct of a sexual nature, but did not suggest any action, saying it had no jurisdiction in the case.

“Considering the fact that the said intern was not an intern on the rolls of the Supreme Court and that the concerned judge had already demitted office on account of superannuation on the date of the incident, no further follow-up action of is required by the court,” the statement issued by the court had said.

The intern who had accused Justice Ganguly had said in her blog on November 11 that she had information that “four other girls face sexual harassment from other judges”.

All these have been mentioned in a complaint pending before the Delhi Police filed by a former Dean of the Law Faculty, S.N. Singh, demanding an FIR against Ganguly and probe into role of other judges.

He said the intern’s statement disclosed an offence under Section 354 of the Indian Penal Code which says “whoever assaults or uses criminal force on any women intending to outrage or knowing it will outrage the modesty shall be imprisoned for a term which may extend to two years”.

 

……………………By HARISH V NAIR

PUBLISHED: 23:08 GMT, 18 December 2013 | UPDATED: 23:08 GMT, 18 December 2013

Read more: http://www.dailymail.co.uk/indiahome/indianews/article-2526056/SECOND-intern-claims-sexually-harassed-DIFFERENT-former-Supreme-Court-judge-Ganguly-panel-refuses-investigate.html#ixzz2nztj2dnC
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