Sunday, 15 January 2017

What are important principles relating disobedience of order of court?

Few facets of relevant considerations when breach of order is alleged and facet of defence available would emerge as under from above case law.
"(1) In the context of breach of order, the order can be void or nullity but, the consequences flowing from its non-compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity.
(2) Void order has to be so declared. The party '... has to approach the Court for seeking such declaration...'
(3) The reason for requirement of nullity order to be challenged is, the Court may refuse to quash such order at the instance of the person who has challenged it or on the ground of delay or waiver or any such legal ground. Further, such void order may be void for one person and it may not be so far as another person is concerned.
(4) If breach of permanent injunction (O. 21 R, 32) vis-à-vis breach of interim injunction (O. 39 R. 2(a)) are compared, subsequent enforcement of decree in the former case and subsequent setting aside of the interim order in a later case insofar as the consequences flowing from these two situations are concerned, - would be different in the sense that in former case, it may happen that no further consequence would ensue but in later case the effect of breach would not be erased.
(5) In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground.
(6) In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not loose its efficacy only on that ground.
(7) The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal.
(8) Generally speaking, punishment would differ from case to case. For instance, in case of solitary breach attachment of property may not be restored to. The Court may direct to detain the guilty person in civil prison or commit him for contempt.
(9) The Court's action for breach would extend also to the person who is not party to the proceedings.
(10) It is not rule of law that unless the contemner purges the contempt, the contemner cannot be heard. It is only rule of practice. In fact, it depends upon the facts and circumstances of case.
(11) In order to decide whether the contemner should be heard or not, the Court would consider how interest of justice would be better served and also the nature of breach i.e. whether it is gross or not etc."
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Civil Application (for Direction) No. 6510 of 2015 in Civil Application No. 4112 of 2015 in Appeal From Order No. 8 of 2012
Decided On: 16.03.2016
 Velbai
Vs.
 Natha Harji Halai and Ors.
Coram:R.D. Kothari, J.


1. In this civil application, the applicant prays for suitable action against the opponents under Order 39 Rule 2(A) of the Code of Civil Procedure. For the sake of convenience, the parties are referred as plaintiff and defendants hereinafter. Plaintiff alleges breach of interim order by the defendant.
2. The plaintiff has instituted a suit being Special Civil Suit No. 111 of 2011 filed before the 3rd Additional Senior Civil Judge, Bhuj. In the plaint, the opponents have inter alia prayed for quashing of the two registered sale deeds i.e. sale deed dated 17.04.2010 and 12.01.2011 by the defendants. Former sale deed executed by defendant No. 1 in favour of defendants Nos. 5 to 9 and later one by defendants Nos. 5 to 9 in favour of defendants Nos. 10 to 12th suit property consists of different survey numbers. It appears that in all the suit property consists of 8 Hectare 61 Are at the periphery of Bhuj. For consideration of this civil application, detailed reference to pleadings is not necessary. The brief list of dates in chronology would give us somewhat idea about the case of the parties.
DATE -- EVENTS
19/20.12.2012 -- Present Appeal from Order No. 8 of 2012 is filed.
25.06.2013 -- Appeal from Order No. 8 of 2012 ADMITTED.
15.07.2013 -- The defendant applied for NA permission.
01.09.2014 -- NA permission granted by the authority.
11.03.2015 -- The present applicant filed Civil Application No. 3520 of 2015 alleging that the defendants have tried to overreach the court process by obtaining NA permission. The plaintiff has prayed for interim relief however, no order was passed on this civil application. This civil application is pending.
24.03.2015 -- Civil Application No. 4112 of 2015 filed with a prayer that defendants Nos. 10 to 12 be restrained from transferring and developing the suit land.
06.04.2015 -- The order of status-quo came to be passed in Civil Application No. 4112 of 2015.
09.04.2015 -- The learned trial Court rejected the plaint in Special Civil Suit No. 111 of 2011 under Order 7 Rule 11 of the Code of Civil Procedure.
15.04.2015 -- Civil Application No. 4894 of 2015 filed by the defendants for vacating the interim relief granted by this Court on 06.04.2015.
04.06.2015 -- Present Civil Application i.e. Civil Application No. 6510 of 2015 came to be filed. In the present civil application, it is the say of the applicant that despite the order of status quo of this Court the defendants have entered into registered sale transaction and thereby he has violated the order of this Court. Hence, application under Order 39 Rule 2(A) of the Civil Procedure Code."
3. Heard learned advocates for the respective parties.
4. Learned advocate Shri A.R. Thacker for the plaintiff has submitted written synopsis - besides making oral submissions. His oral submissions were charged with emotions and he has asserted that only view possible in the facts and circumstances of the case is defendants are guilty and hence they should be punished for violation of the order of this Court. In the synopsis submitted by the learned advocate, broadly stated, besides mentioning the facts in chronology, it is pointed out that in the affidavit filed by defendant No. 10, 'subsequent' execution of the sale deed is admitted by him (para 7). This execution of the sale deed is after the order of status quo passed by this Court. With such assertion in the nature of admission in the affidavit - on the face of the order of status quo, the defendants have exposed themselves for the penalty of breach of injunction. The learned advocate also submits that the order of status quo passed by this Court on 06.04.2015 is bi-parte order and the defendants are incorrectly referring the said order as ex-parte order. Such say of the defendants is misleading. Bare perusal of the order would show that the same was passed after hearing the learned advocates for the parties. In the arguments, learned advocate has reiterated the events leading to filing of Civil Application No. 6510 of 2015 for beach of injunction. The learned advocate has also drawn attention to the relevant case laws.
5. On the other hand, learned senior advocate Shri D.C. Dave appears for Shri Mehul Sharad Shah, after briefly referring the facts of the case has submitted that in typical facts of the present case, the plaintiff has no case on merits and these facts had to bear in mind while appreciating the grievance of the plaintiff. The submissions of learned senior advocate may be summarized as under:--* Breach of order of complained of by the plaintiff is not the order which is passed after bi-parte hearing, in the sense that time was sought by the learned advocate for defendants and the Court had while granting time to him has passed the order to maintain status quo. It was submitted that passing of order upon hearing the learned advocates on merits and passing of the order on a request made by the learned advocate for time does not stand on the same footing.
"* The plaint as it stand if considered by considering the rival pleadings of the parties, the suit is most likely to fail and this fact should be bear in mind while considering the application.
* In Special Civil Suit No. 111 of 2011, the Court has not granted ex-parte ad-interim relief to the plaintiff then, after hearing the defendants at Exhibit-5, also interim relief was rejected by the learned trial Court.
* Against rejection of the interim relief application by the learned trial Court (Exhibit-5), Appeal from Order No. 8 of 2012 came to be filed by the plaintiff wherein the order of Admitting appeal was passed only in June, 2013. In Appeal from Order, neither at the stage of notice or at the stage of Admitting the appeal, interim relief was granted to the plaintiff.
* In the affidavit filed by defendant No. 10, he has explained when he was served and/or informed about the order passed by this Court dated 06.04.2015. This also explains how, meanwhile sale deeds came to be executed on 09.04.2015. The defendants tenderers "unconditionally apology" in the affidavit.
* The sale deed executed on 09.04.2015, were executed by defendants Nos. 10 to 12 in the capacity of the Director of the Company and not in their individual capacity. That being so and as the Company has distinct and separate entity from defendants Nos. 10 to 12 - defendants Nos. 10 to 12 ought not to held guilty for committing breach. The Company has the distinct entity from individual and from its Director. The alleged breach assuming it to be there, the Court should also consider whether such breach is willful o not. In the facts and circumstances of the present case, the breach is at all not willful.
* The learned senior advocate has inter alia drawn attention to the decision of the Apex Court in the case of Anil Panjwani reported in MANU/SC/0382/2003 : (2003) 7 SCC 375. Drawing attention to paragraph Nos. 5 to 9, it was urged that the merits of the matter are also to be looked into by the Court while considering such application. It is not rule of law that unless contemner purges the fact that he should be heard. It is only the rule of practice. I proceed to consider case of parties."
6. The controversy between the parties surrounds the order passed by this Court dated 06.04.2015 passed in Civil Application No. 4112 of 2015, which reads as under:--
"Mr. BY Mankad, learned advocate appearing for respondents No. 10 to 12 requests for time to file affidavit-in-reply. Hence, S.O. to 18.06.2015.
Till then, the parties are directed to maintain status quo with regard to the disputed land.
Direct service for respondents No. 10 to 13 is permitted."
7. In order to appreciate the case of the parties properly, brief reference may be made to case laws relied on by them. First about the case laws relied on by the applicant/plaintiff.
7.1. Reliance was placed on the decision of this Court in the case of Nareshbhai Hathising Shah v. Dinaben Jitendrabhai Thakar reported in 2014 JX (Guj) 188 : 2014 AIJEL_HC 231112. In that case despite the interim order of this Court, the defendant has sold the property. It appears that the application was moved to take action against the defendant under the Contempt of Courts Act. It was pointed out by learned advocate Shri Thacker for the applicant that in that case also - as in the present case - request was made to hear the contempt application along with first appeal. It was a case of the defendant that first appeal is filed by the suppressing material facts. In detailed judgment rejecting the plea raised by the defendant, this Court had passed the order that defendant No. 11 shall undergo three months imprisonment and pay fine of Rs. 2,000/-. This Court had also passed the order of costs. Further, this Court had set aside the sale deed that was entered into in contravention of the order of this Court. The said sale deed was declared bad and non est. The Court gave liberty to the purchaser to recover the sale price from the defendant.
7.2. In the case of Bharatbhai Jivrajbhai v. Chaganbhai Samabhai & Ors. reported in2013 (1) GLH 343, the learned trial Court had refused the interim relief in the suit for specific performance of agreement for sale of property, however, in appeal, this Court had granted injunction. Despite, injunction, the defendant transferred the suit land. The plaintiff applied to take action under Order 39 Rule 2(a) of the CPC. This Court passed the order of seven days imprisonment and to pay fine of Rs. 1 lac. Therein, reliance was placed on the decision of the Apex Court in the case of Patel Rajnikant Dhulabhai & Anr. v. Patel Chandrakantbhai Dhulabhai & Ors., reported in MANU/SC/3163/2008 : (2008) 14 SCC 561 and the important observation made by this Court qua the nature of apology that is required, to make such apology acceptable.
7.3. In the case of Krishnadevi Malchand Kamathia & Ors., v. Bombay Environmental Action Group & Ors., reported in MANU/SC/0085/2011 : AIR 2011 SC 1140, it was held that even if the order is void, the party aggrieved by it cannot decide that it is void. Such order is required to be declared void by the competent Court. In para 17 and 21, it has held as under:--
"17. It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.
21. Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the Court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the Court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it nay not be so for another purpose or another person."
7.3.1. In that case, appellant was facing notice of breach of order/notification alleged to have committed by him. The contention was raised that suit challenging the validity of notification - wherein ground is raised that notification is void ab initio - is pending and this pendency of suit with such relief would take care of the breach complained of. This was negatived.
7.4 In the case of Patel Rajnikant Dhulabhai & Ors., v. Patel Chandrakant Dhulabhai & Ors., reported in MANU/SC/3163/2008 : AIR 2008 SC 3016(1), the party was facing proceedings under the Contempt of Courts Act. These proceedings arise as the party had sold the property during the pendency of the proceedings inspite of the interim order passed by the Apex Court. After recording the facts, the Apex Court has concluded as under;-
"39. We are, therefore, fully convinced that during the pendency of the proceedings and in spite of interim orders passed by this Court, agreements have been entered into by the contemner, cheques had been accepted and consideration had been received at least in part. So far as the first order passed by this Court on April 26, 2004 is concerned, there was total prohibition from creating any interest in favour of third party either by sale, mortgage, transfer, assignment, gift or 'in any other manner whatsoever.' Hence, entering into an agreement or acceptance of full or even part consideration would be hit by the said order. In our considered view, it would amount to 'creation of interest' prohibited by this Court.
45. From the overall considerations of the matter in light of the series of events, we hold that he respondents-contemners have disregarded and violated the orders passed by this Court on April 26, 2004 and January 10, 2005."
7.5. In the case of Samee Khan v. Bindu Khan reported in MANU/SC/0564/1998 : AIR 1998 SC 2765, submission was advanced by the party who has alleged to have committed breach of interim order, by relying on Order 21 Rule 32 of the CPC. In para 11, the Apex Court has held as under:--
"11. At the first blush the above interpretation appeared attractive. But on a closer scrutiny we feel that such interpretation is not sound and it may lead to tenuous results. No doubt the wording as framed in Order 21 Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But sub-rule (5) of Rule 32 shows that the Court need not resort to either of the above two courses and instead the Court can direct the judgment-debtor to perform the act required in the decree or the Court can get the said act done through some other person appointed by the Court at the cost of the judgment-debtor. Thus, in execution of a decree the Court can resort to a threefold operation against disobedience of the judgment-debtor in order to compel him to perform the act. But once the decree is enforced the judgment-debtor is free from the tentacles of Rule 32. A reading of that Rule shows that the whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied the utility of Rule 32 gets dissolved."
7.5.1 Distinguishing the above situation, the Apex Court in para 12 has held as under:--
"12. But the position under Rule 2-A of Order 39 is different. Even if the injunction order was subsequently set aside the disobedience does not get erased. It may be different matter that the rigour of such disobedience may be toned down if the order is subsequently set aside. For what purpose the property is to be attached in the case of disobedience of the order of injunction? Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus even under Order 39, Rule 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience. "
7.6. In response to the submission that the plaintiff has failed to get injunction either ex-parte or bi-parte and thereafter the suit itself came to be rejected, reliance was placed on the decision of the Apex Court in the case of Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., reported in MANU/SC/0280/1997 : AIR 1997 SC 1240(1). The opening part of para 14 would give brief idea of how the question and objection as to the jurisdiction arise in that case. The facts were typical. Para 14 and 16 read as under:--
"14. The first and foremost question in this appeal is whether the High Court was right in holding that since it has been found ultimately that the Civil Court had no jurisdiction to entertain the suit, the interim orders made therein are non est and hence Defendants 1 and 2 cannot be punished for their violation even if they had flouted and disobeyed the said interim orders whey they were in force. We are of the considered opinion that the High Court was not right in saying so. The landlord-plaintiff came forward with the suit alleging that by virtue of the fire resulting in the destruction of the suit house, the relationship of landlord and tenant between the parties has come to an end and, therefore, he requested the Court to injunct the defendants from carrying on any construction on the suit premises without their permission and without obtaining the sanction from Municipal Corporation. The defendants questions the jurisdiction of the Civil Court to entertain the suit. According to them, the building was not totally destroyed and that in any even, the relationship of landlord and tenant has not come to an end on that account. The defendants plea was rejected by the Civil Court. It held that it did have the jurisdiction to try the said suit. On appeal, however, the High Court, disagreeing with the decision of another High Court, held that relationship of landlord and tenant has not come to an end for the reason suggested by the plaintiff and that the Civil Court has no jurisdiction to entertain the suit in view of Section 28 of Bombay Rent Act. All this Took about six years, i.e. from 1991 to 1996. It is not suggested not can it be suggested that the suit was filed by the plaintiff in the City Civil Court only with a view to avoid the Rent Control Court nor can it be suggested that they approached the Civil Court knowing full well that the Civil Court had no jurisdiction to try that suit. It is evident that they approached the Civil Court bona fide, thinking that it had jurisdiction to try their suit. They are confirmed in their view by the Civil Court. It is true that ultimately the High Court found against them but even then, must be noticed, they did so disagreeing with a decision of the Kerala High Court. It, therefore, cannot be said that the plaintiffs did not approach the Civil Court bona fide.
16. ....................... In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the Court does not become helpless forthwith - not does it become incompetent to grant the interim relief. It can. At the same time, it should also decide the objection to jurisdiction at the earlier possible moment. This is the general principle and this what Section 9A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad interim injunction was granted. Then the defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the Court. The Court overruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim orders were passed by both the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court's decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e. for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously rode the dignity and authority of the Courts. We must repeat that this is not even a case where a suit was filed in wrong Court knowingly or only with a view to snatch an interim order. As pointed out herein above, the suit was filed in Civil Court bona fide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction."
7.7. Reliance was placed on the decision of the this Court in the case of Thakorlal Parshottamdas v. Chandulal Chunilal reported in MANU/GJ/0043/1967 : AIR 1967 GUJARAT 124(V54 C 24) (1). Therein, this Court has held as under;-
"The interim injunction having been in force, they party is bound to obey it and when he disobeys he is liable to be proceeded against Order 39 Rule 2(3) even though the injunction has been subsequently vacated in appeal. The appellate Court is bound to examine the merits of the order under Order 39 Rule 2 (3).
Where there is a solitary act of disobedience or breach of injunction, the remedy by way of attachment of property under the first part of O 39, R 2(3) is clearly inapplicable. In such a case, the proper remedy will be to detain the person guilty of disobedience or breach in civil prison under the second part of O. 39 R.2(3) or to commit him for contempt. Thus, such an order of attachment for a single act of breach cannot be passed."
7.8. In the case of Jeram Mulchand Chandani v. Dinesh Hiranand Ramani & Ors., reported in 2000 (1) GLH (U.J.) 16, this Court had held that while dealing with an application filed under this provision, the Court can deal with anybody who has committed breach of the order - i.e. the person who is sought to be proceeded against for the breach, may not be a party to the proceedings.
7.9. In M.C. Mehta v. Union of India & Ors., reported in MANU/SC/0271/2003 : (2003) 5 SCC 376, it was held that filing of false affidavit amounts to criminal contempt.
7.10. Reliance is placed on the decision of this Court in the case of Patni Dhanjibhai Saybabhai v. Patni Mohanbhai Sababhai reported in MANU/GJ/0713/2009 : 2009 (3) GLR 2486. In that case disposal of the property by selling it despite the order of injunction has led the plaintiff to file an application under Order 39 Rule 2(a) of the CPC. The learned trial Court passed the order of three months imprisonment and fine of Rs. 2,000/-. The said order was upheld by the learned District Court and against that in petition under Article 227 of the Constitution of India, this Court has refused the apology as the defendant has tried to justify the action instead of showing remorse.
7.11. In the case of B.K. Muniraju v. State of Karnataka & Ors., reported in MANU/SC/7166/2008 : (2008) 4 SCC 451, the Apex Court held that no case for interference in exercise of powers under Article 227 of the Constitution of India.
8. In response to the above, on behalf of the defendant so far as case laws are concerned, the submission was twofold. (1) the proposition that the contemner should not be heard till the contemner purges is only rule of practice and it is not rule of law. Consequently, if the applicant - plaintiff has no case either for interim relief or for final relief in a suit, then, assuming for the sake of argument only that there is breach committed by the defendant, consideration of the Court would certainly change to a considerable extent when it comes to awarding punishment for breach of interim relief. Reliance was placed in the matter of Anil Panjwanis's case 2003 SCC 375.
8.1 In support of the submission that the company has its own and distinct personality from an individual/Director, reliance was placed on the decision in case of Floating Services Ltd. - MANU/GJ/0104/2004 : 2004 3 GCD 1921. In that case, question arose before the court was when name of company is struck from Registrar of Companies on account of company being dissolved, can it validly initiate legal action or not.
8.2 Besides above cases, a reliance was placed on the decision of this Court in the case of Harshadkumar Kantilal Bhalodwala & Anr., v. Ishwarbhai Chandubhai Patel & Ors., reported in MANU/GJ/0873/2009 : 2010 (1) GLH 151. This case cannot help much to the defendant in the present case. The head note reads as under:--
"Civil Laws - Code of Civil Procedure - 1908 - O. 39, R 1 and R. 2 - Grant of interim injunction - Suit for specific performance - Execution of agreement and receipt of part sale consideration by cash, disputed - Nothing produced on record by plaintiff to show source of payment of consideration - Held, no prima facie case in favour of plaintiff - Besides, third parties purchasing the property by registered sale deed after giving public notice and upon payment of full sale consideration. Balance of convenience, held in favour of such bona fide purchasers - No case of grant of interim injunction."
9. Few facets of relevant considerations when breach of order is alleged and facet of defence available would emerge as under from above case law.
"(1) In the context of breach of order, the order can be void or nullity but, the consequences flowing from its non-compliance or breach cannot be avoided by the party by advancing the plea that such order is void or nullity.
(2) Void order has to be so declared. The party '... has to approach the Court for seeking such declaration...'
(3) The reason for requirement of nullity order to be challenged is, the Court may refuse to quash such order at the instance of the person who has challenged it or on the ground of delay or waiver or any such legal ground. Further, such void order may be void for one person and it may not be so far as another person is concerned.
(4) If breach of permanent injunction (O. 21 R, 32) vis-à-vis breach of interim injunction (O. 39 R. 2(a)) are compared, subsequent enforcement of decree in the former case and subsequent setting aside of the interim order in a later case insofar as the consequences flowing from these two situations are concerned, - would be different in the sense that in former case, it may happen that no further consequence would ensue but in later case the effect of breach would not be erased.
(5) In case when objection to the jurisdiction of the Court is raised and later on it is upheld even then, interim order passed therein by the Court does not become vulnerable or bad only on that ground.
(6) In case where objection is raised, it would be more proper if the objection of the jurisdiction is decided first. But if the Court happens to pass the order before deciding that, the prior interim order would not loose its efficacy only on that ground.
(7) The party cannot avoid consequence flowing or breach merely because the order is subsequently vacated in appeal.
(8) Generally speaking, punishment would differ from case to case. For instance, in case of solitary breach attachment of property may not be restored to. The Court may direct to detain the guilty person in civil prison or commit him for contempt.
(9) The Court's action for breach would extend also to the person who is not party to the proceedings.
(10) It is not rule of law that unless the contemner purges the contempt, the contemner cannot be heard. It is only rule of practice. In fact, it depends upon the facts and circumstances of case.
(11) In order to decide whether the contemner should be heard or not, the Court would consider how interest of justice would be better served and also the nature of breach i.e. whether it is gross or not etc."
10. In the present case, in the affidavit-in-reply, filed by defendant No. 10 in the present civil application, in para 5, it is stated as under:--
"5. It is pertinent to note that after a period of 3 years and 4 months, the applicant has moved Civil Application No. 4112 of 2015 and the matter was listed for hearing on 06.04.2015. The learned advocate appearing on behalf of opponents Nos. 10 to 12 requested for time to file affidavit in reply. At that time, Hon'ble High Court was pleased to order the matter to stand over to 18.06.2015 and in the meantime directed the parties to maintain status-quo with regard to the disputed land. I say and submit that advocate had informed out local advocate Mr. Yogesh Bhandarkar on 07.04.2015 at about 7:10 p.m., through SMS and also informed him that he will send the e-mail and therefore, the local advocate inquired from him about the order on 08.04.2015 as the matter was kept for hearing before the trial Court on 09.04.2015. The learned advocate of the High Court informed him about the status-quo order passed by the Hon'ble High Court and thereafter by SMS at 7:15 p.m., on 08.04.2015, informed him to engage some other lawyer as he would not like to continue. Thereafter, the local advocate had taken out the print out of order in the morning of 09.04.2015 from the website of the Hon'ble High Court and informed me about the same on the same day i.e. 09.04.2015. I say and submit that, the suit was also dismissed by the trial Court on 09.04.2015, by allowing an application under Order VII Rule 11 of CPC. In the above facts, since opponent Nos. 10 to 12 came to know about the order passed by the Hon'ble High Court on 09.04.2015, several sale deeds have been executed on 07.04.2015 and on 08.04.2015. I say and submit that out of 9 sale deeds of 07.04.2015, and 08.04.2015, the consideration of 6 sale deeds have been received in the months of November and December, 2014 and January, 2015 and in case of two sale deeds, the payment was made on 07.04.2015. That as such, all the sale deeds were prepared in prior point of time and have been executed on the aforesaid dates. That the other sale deeds were executed much prior in point of time as detailed in the chart."
11. From the above quoted para 5 and from the above discussion, following conclusion is possible to record.
"* Civil Application No. 4112 of 2015 was taken up for hearing by this Court on 06.04.2015.
* Learned advocate appearing for the opponent/defendant has sought time and the Court had granted time.
* While granting time, the Court has also passed the order to maintain status-quo till the next date of hearing.
* This order was said to have been communicated by learned advocate for the defendant appearing before this Court to his counter part at Bhuj on 07.04.2015 at evening at about 07:10 p.m., by SMS.
* It is alleged that the advocate appearing before the High Court had also informed that he is forwarding the order by E-mail. However, no such E-mail was ever received by the learned advocate at Bhuj.
* On 08.04.2015, learned advocate at Bhuj had contacted learned advocate appearing before the High Court that since Special Civil Suit No. 111 of 2011 was posted on 09.04.2015.
* Learned advocate appearing before the High Court had said to have informed him that status-quo order is passed by the High Court.,
* It is alleged that he also said to the learned advocate at Bhuj that he would not like to continue as advocate and the party may engage another advocate.
* Thereafter, learned advocate at Bhuj, has taken print out from High Court website on 09.04.2015 and had said to have informed the parties.
* It is alleged that defendants Nos. 10 to 12 came to know about the order passed by the High Court on 09.04.2015.
* The sale deed came to be executed on 07.04.2015 and 08.04.2015.
* It is alleged by defendant No. 10 that 9 sale deeds were executed on 07.04.2015 and 08.04.2015.
* Of these 9 sale deeds, consideration of 6 sale deeds were received way back in December, 2014 and In January, 2015.
* After 08.04.2015, no sale deed have been executed by defendants Nos. 10 to 12 nor any construction work is carried by them."
12. In this affidavit, defendant No. 10 also averred that defendants Nos. 10 to 12 were not aware of the order passed by this Court and, therefore, sale deed came to be executed on 07.04.2015 and 08.04.2015. The deponent also tendered "sincere apology" for execution of those sale deeds.
12.1. The say of the defendant that he/they came to know about the order of status-quo only on 09.04.2015 is difficult to believe. The assertion of the plaintiff that a copy of Civil Application No. 4112 of 2015 was served to the learned advocate for the respondent on 30.03.2015 is not denied by the respondent. Defendant Nos. 10 to 12 were and are represented by learned advocate in Civil Application No. 4112 of 2015. The order of status-quo passed in their advocate's presence. From the above referred chronology of the dates, it is difficult to believe that defendants Nos. 10 to 12 were "unaware" of the order dated 06.04.2015 and that such 'unawareness' continued till 09.04.2015. The say of defendant No. 10 in this regard is not in the nature of inspiring confidence. In view of the above discussion, it is possible to conclude that defendant No. 10 has executed the sale deed on 07.04.2015 and 08.04.2015 despite the order of status-quo passed by this Court and thereby he has committed breach. At the time of hearing, it was pointed out that these sale deeds are executed only by defendant No. 10 and not by defendants Nos. 10 to 12. In this regard, learned advocate Shri Thacker has pointed out that NA permission was applied for by defendants Nos. 10 to 12 and thereby, they all have committed breach. To this, the say of the opponent is at the time of applying and obtaining NA permission, there was no interim order passed or operative qua that and this assertion was not controverted by the applicant. Hence, the submission that the opponent has violated interim order by applying and obtaining NA permission cannot be accepted. The breach is committed by defendant No. 10 by executing the sale deeds.
12.2. The next question would be what should be the "punishment" for breach of interim order.
13. From the above discussion, following aspects would appear as relevant for 'punishment'.
"(a) In Appeal from Order No. 8 of 2012 at no point of time till today, interim order in favour of the applicant passed. In the year 2015 only i.e. 06.04.2015, the order passed is passed in Civil Application No. 4112 of 2015.
(b) After the order dated 06.04.2015, 9 sale deeds were executed. Only opponent No. o is the signatory of these sale deeds. Of all these sale deeds, substantial consideration of six sale deeds were received in December, 2014 and in January, 2015.
(c) Is there any distinction between passing of the order after hearing the parties on merits and passing of the order on seeking time by one of the party."
13.1 Taking last referred aspect first, ingenuous plea has hardly any substance. The party who prays for time and does get the time with condition then he is not free to ignore the condition or treat it causally. Comparing it with the order passed after hearing the party, is misconceived so far as breach of order is concerned. In a sense, such distinction between two is academic. All the same, this has relevance and bearing so far as "punishment" is concerned. As to the second aspect namely, substantial consideration of six sale deeds received much earlier, this aspect can also be considered as mitigating circumstances to some extent and so also to negligible extent qua first aspect i.e. no interim order was issued in favour of the applicant at any time prior to 06.04.2015.
13.2 I may refer to one more aspect. Learned senior counsel Mr. Dave opened the arguments with the facts of the case and attempt was made to point out that the applicant is unlikely to get any interim relief on merits and worse, the plaintiff would not get any final relief as the plaint stand. It may be noted that this submission was not seriously met with by the applicant. In this regard, it may also be stated that submission of learned advocate for the opponent, namely, to hear Civil Application No. 4112 of 2015 and/or the main matter i.e. Appeal from Order No. 8 of 2012 along with this Civil Application, was opposed by the learned advocate for the applicant.
14. Yet another aspect is - property is fairly vast property. In all 103 different sale deeds of this very property are executed. Most of the sale deeds are executed prior to 06.04.2015. Only 9 sale deeds are hit by this interim order. This aspect would also have bearing in passing the order for breach of interim order.
14.1. The matter was kept for pronouncement of the order. It was kept on 26.02.2016. On 24.02.2016, learned advocate Shri Thacker has mentioned for urgent circulation of Civil Application. Permission was granted and Civil Application No. 1768 of 2016 moved by the applicant. Therein, the prayer is made that : "..... The Hon'ble Court may be pleased to permit the applicants to place on record the additional affidavit in support of Civil Application No. 6510 of 2015 dated 20.02.2016 (Annexure-A to this application) on the record of Civil Application No. 6510 of 2016...." In that affidavit attached to the Civil Application, it is averred that after arguments were over, the applicants got copy of the brochure of the Sardar Patel Nagar-II which is floated by S.V.C.T. Group. In S.V.C.T. Group respondents Nos. 10 and 11 are the Directors. It is also averred that the brochure clearly shows that construction work is carried out by respondents Nos. 10 and 11. It is also stated that in this regard, respondent No. 10 has made incorrect statement in the affidavit filed before this Court on 15.06.2016. The applicants alleges that the opponent has committed breach of the order dated 06.04.2015 in various manner by executing the sale deed for the land in question by continuing activity of construction and by making application for obtaining permission for construction from BHADA, despite the order of status-quo."
14.2. On 25.02.2016, this civil application was heard. At the time of hearing of Civil Application No. 1768 of 2016, learned advocate Shri Shah has submitted that S.V.C.T. Group is not made a party in this proceedings. It was also submitted that from the brochure it cannot be make out that construction work in fact is going on at the site.
14.3. After hearing, this Court has passed the order, wherein, conclusion reads thus
"5. Considering the submissions made by learned advocates for the parties, it appears just and proper to decide this Civil Application along with Civil Application No. 6510 of 2015."
14.4. I do not feel it just and proper to take aid of this broacher and affidavit as the civil application No. 6510 of 2015 is kept for pronouncement of judgment and more than that, the other side has no effective opportunity to meet with the averments made in the Civil Application No. 1768 of 2016.
15. Before mentioning conclusion I may also refer to Anil Panjwani's case (supra) and in that case, proceedings for criminal contempt was initiated against the appellant as the appellant has made serious allegations in his affidavit against the Judge of the Apex Court. Considering the typical facts of the case namely, conducting of the case by the respondent in that case, it was found that frustration of the appellant was some what justified. In the end, it allowed the appellant to withdraw the affidavit from the record. What is material to note herein is the fact that the appellant has suffered 4 days imprisonment for being committing contempt and for that he has apologized before the Court "with folded hands" and these had also weighed with the Court and had allowed to withdraw the affidavit and accepted apology.
16. In view of above discussion and considering the facts and circumstances of the present case, the applicant No. 10 is hereby directed to undergo 7 days' civil imprisonment and shall pay fine of Rs. 5000/-. Accordingly, present civil application stands disposed of.
FURTHER ORDER
After pronouncement of this order, learned advocate for the opponent, Shri Mehul Sharad Shah prays for stay of operation of this order.
Learned advocate for the applicant opposes this prayer.
Operation of order is stayed for a period of 8 weeks.
ORDER ON SPEAKING TO MINUTES NOTE
17. The applicant has filed a note for speaking to minutes drawing attention of the Court that in paragraph No. 16 by error, it is stated "........ applicant No. 10 is hereby directed to undergo 7 days' civil imprisonment...... " and it should have been ....."opponent No. 10 is hereby directed to undergo 7 days' civil imprisonment...."
18. Heard learned advocate for the applicant.
19. In the order passed by this Court on 16.03.2016, in paragraph No. 16 instead of " applicant No. 10 is hereby directed to undergo 7 days' civil imprisonment...... " it should be read as "opponent No. 10 is hereby directed to undergo 7 days' civil imprisonment..... "
20. The note stands disposed of accordingly.

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