REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (CIVIL) Nos. 12-13 of 2006

IN

SPECIAL LEAVE PETITION(CIVIL) Nos.7659-7660 OF 2004

PATEL RAJNIKANT

DHULABHAI & Anr. …Petitioners

VERSUS

PATEL CHANDRAKANT

DHULABHAI & Ors. …Respondents/Contemners

J U D G M E N T

C.K. Thakker, J.

1. The present contempt petitions are

filed by the petitioners against respondent

Nos. 1 to 3, alleged contemners, praying that

they be held guilty of ‘civil contempt’ for

violating orders passed by this Court on April

26, 2004 and on January 10, 2005 and be

punished accordingly. A prayer is also made

directing the contemners to deposit the amount

received from third parties in consideration of

transfer of property effected by them during

the period of interim orders of this Court.

2. Shortly stated the facts of the case

are that petitioners and respondent Nos. 1, 4

and 5 (in Special Leave Petitions) are real

brothers and heirs and legal representatives of

one Dhulabhai Patel. It was the case of the

petitioners that in 1961, one Chandulal

Muljibhai Parikh and Dhulabhai Patel (father of

petitioners and respondent Nos. 1, 4 and 5)

purchased land bearing Revenue Survey Nos.

459/2, 464, 465, 466/1 and 466/2 admeasuring 6

acres and 9 gunthas of village Atladara, Taluka

and District Baroda in the State of Gujarat

from one Parvatibai Ingle by a registered sale

deed. According to the petitioners, the amount

of consideration was paid from the funds of

Hindu Undivided Family (HUF) of Dhulbhai Patel,

but name of respondent No. 1 Chandrakant

Dhulabhai Patel was shown as the purchaser of

the property being the eldest son of decdeased

Dhulabhai Patel along with Chandulal Muljibhai

2

Parikh. Respondent Nos. 4 and 5 were minors at

that time. Respondent No. 1, Chandrakant

Dhulabhai Patel was also studying in a college

and was having no source of income whatsoever.

The entire amount was paid by deceased

Dhulabhai. According to the petitioners,

several documents revealed that the property

was managed by HUF of Dhulabhai Patel. In

October, 1986, Dhulabhai died. No partition by

metes and bounds had been effected between the

sons of deceased Dhulabhai and the property

continued to remain as HUF property. The

petitioners used to manage property after the

death of Dhulabhai.

3. In 1990, a Memorandum of Understanding

(MoU) was entered into between respondent No.

1, Chandrakant Patel, being eldest son of

Dhulabhai Patel family on one hand and heirs of

deceased Chandulal Parikh on the other hand

whereunder it was agreed that a portion of land

towards western side would be treated as

3

property of deceased Dhulabhai Patel and his

family members.

4. In 1998, however, respondent No. 1 in

conspiracy with third party and behind the back

of the petitioners and respondent Nos. 4 and 5

executed an agreement to sell the share of HUF

property belonged to the petitioners and other

members of deceased Dhulabhai Patel. A

collusive suit came to be filed by respondent

Nos. 2 and 3 (partners of M/s Om Shivam

Corporation) in the Court of Civil Judge

(Senior Division), Baroda, being Special Civil

Suit No. 311 of 1999 for specific performance

of agreement, dated January 18, 1998 against

respondent No. 1 and within less than a month,

a collusive and fraudulent consent decree was

passed. The petitioners were neither aware of

the suit nor the decree passed therein. It was

only when a caveat was filed by M/s Om Shivam

Corporation, a partnership firm that the

petitioners suspected foul play. They,

therefore, made an inquiry and came to know

4

about the suit and collusive decree.

Immediately, they filed a suit being Special

Civil Suit No. 605 of 2002 in the Court of

Civil Judge, (Senior Divison), Baroda for

declaration, partition of joint family property

and their share in the said property. Along

with the plaint, the petitioners filed an

application (Exh. 5) under Order XXXIX, Rules 1

and 2 read with Section 151 of the Code of

Civil Procedure, 1908 (hereinafter referred to

as ‘the Code’) for interim injunction

restraining the defendants from putting up any

construction on the land admeasuring 1,43,000

sq. ft. towards western side of the land

bearing Revenue Survey Nos. 459/2, 464, 465,

466/1 and 466/2 and from entering into any

transaction of sale, gift, mortgage or from

dealing with the property in any other manner

or from handing over possession of the suit

land to anyone else. The trial Court issued

notice to the defendants, but did not grant

injunction as prayed by the petitioners-

5

plaintiffs. The petitioners challenged the

said order by filing Appeal from Order No. 140

of 2003 and the High Court of Gujarat vide its

order dated May 2, 2003 directed the trial

Court to dispose of the Application (Exh. 5) on

merits within 15 days from the re-opening of

the courts after summer vacation.

5. The trial Court thereafter heard the

matter and dismissed the Application by

refusing interim injunction. The petitioners

once again preferred an appeal against the said

decision in the High Court being Appeal From

Order No. 241 of 2003. Along with Memorandum of

Appeal, the petitioners filed Civil Application

No. 5083 of 2003 for interim injunction. In

paragraph 8 of the Civil Application, the

petitioners prayed for interim relief. The

High Court by an order dated July 23, 2003,

granted ex-parte ad interim relief in terms of

paragraph 8(A).

6. The said paragraph read as under;

6

8.The applicants, therefore, pray

that :

(A)Pending admission, hearing

and final disposal of the

aforesaid Appeal from Order,

the Hon’ble Court may be

pleased to issue an

injunction restraining

opponents Nos. 1 to 3 herein,

from putting up any

construction on the suit land

either themselves or through

their agents and/or servants

and from disposing of the

said property or creating any

interest therein in favour

of a third party either by

sale, mortgage, transfer,

assignment, gift or in any

other manner whatsoever.

7. It is thus clear that though interim

injunction was refused by the trial Court, the

High Court on July 23, 2003, granted the prayer

of the petitioner and issued interim injunction

during the pendency and final disposal of

Appeal from Order instituted by the

petitioners-appellants.

8. The High Court then heard the matter

and by judgment and order dated March 26, 2004

dismissed the appeal observing that considering

7

the facts and circumstances of the case in

their entirety, the order passed by the trial

Court below Application Exh. 5 called for no

interference. Interim relief which was granted

earlier was ordered to be vacated.

9. The learned counsel appearing for the

petitioners-appellants in the High Court, at

that stage, made a prayer to the Court to

continue interim relief granted earlier so as

to enable the petitioners-appellants to

approach higher forum. After hearing the

learned counsel for the parties and noting

objections raised by the other side, the Court

continued interim relief granted earlier for

four weeks.

10. Paragraphs 35 and 36 of the judgment

which are relevant read as under;

35.Considering the entire facts and

circumstances of the case and

having regard to the legal

position concerning the point in

issue, this Court is of the view

that the impugned order passed by

the Trial Court below an

application Exh. 5 does not call

for any interference in this

8

Appeal From Order. Accordingly,

this Appeal From Order is

dismissed. Interim relief granted

earlier is vacated.

36.At this stage, Mr. A.J. Patel, the

learned advocate appearing for the

appellants requested to continue

the interim relief granted earlier

by this Court for the period of

six weeks so as to enable the

appellants to approach the higher

forum. Mr. Bhatt and Mr.

Nanavati, learned advocate

appearing for the respondents Nos.

1, 2 & 3 respectively have

strongly objected to the extension

of interim relief. After

considering their submissions on

this issue, the interim relief

granted earlier is extended for

four weeks from today .

(emphasis supplied)

11. Being aggrieved by the said order, the

petitioners approached this Court by filing

Special Leave Petition (Civil) Nos. 7659-7660

of 2004. On April 26, 2004, this Court issued

notice and continued interim order passed by

the High Court which was, as noted earlier, in

terms of prayer para 8(A). The order, dated

April 26, 2004 passed by this Court read as

under;

9

“The interim order already granted

by the High Court will continue

subject to further orders of this

Court”.

12. Notices were served on the respondents

who appeared. Affidavits and further affidavits

were thereafter filed and Special Leave

Petitions were disposed of by this Court on

January 10, 2005.

13. The said order read thus;

“The dispute in these special leave

petitions pertains to the

construction on certain properties

which are claimed to be the joint

family properties. By the impugned

interim order, the High Court has

permitted construction to be made on

the suit properties. We have

considered the reasoning of the High

Court. While not affirming the

correctness of the prima facie

opinion expressed therein, we are of

the view that the interest of the

parties will be adequately protected

if a conditional order is passed.

The special leave petitions, are,

accordingly, disposed of by making it

clear that any construction which is

made by the respondent – purchasers

on the disputed properties will be

subject to the outcome of the suit.

Any third party right which is

created shall be done after notice to

the petitioners. The pendency of the

1

proceedings shall also be notified to

each of the third parties so

involved. The Trial Court is directed

to dispose of the suit expeditiously,

preferably within a period of six

months from the date of the

communication of this order.

(emphasis supplied)

14. The allegation of the petitioners in

the present Contempt Petitions is that in spite

of interim order passed by this Court on April

26, 2004, as modified by final order dated

January 10, 2005, the respondent Nos. 1 to 3

(contemners) dealt with and transferred the

suit property by entering into agreements,

accepted the amount by way of consideration,

executed sale-deeds in favour of third parties

without notice to the petitioners, allowed

construction to be made and thereby committed

wilful disobedience and intentional violation

of the order of the Court and they are liable

to be punished in accordance with law.

15. On these petitions, notices were

issued on February 6, 2006. The respondents

1

appeared and filed affidavits. Having satisfied

that the pleadings were complete, the Registry

was directed to place the matters for final

disposal. That is how the matters have been

placed before us.

16. The learned counsel for the

petitioners contended that in spite of the

orders passed by this Court, the contemners

sold the property, received consideration and

executed sale-deeds. No notice was given to

them about the transactions before they were

entered into. The orders of this Court were

abundantly clear. The first order dated April

26, 2004, totally restrained the respondents

from taking any action during the pendency of

the proceedings. In spite of such clear-cut

order, properties were sold and several other

actions were taken by the contemners and they

are liable to be punished for committing

contempt of Court. It was also submitted that

even under the order dated January 10, 2005,

when Special Leave Petitions were disposed of

1

and earlier interim order was modified, the

contemners had acted in violation of the

directions. And on that ground also, they are

liable under the Contempt of Courts Act.

17. The learned counsel for the

petitioners, in this connection, referred to

agreements to sell as well as sale deeds and

acceptance of part payment or full payment of

consideration during the intervening period

between July 23, 2003 when the High Court

granted interim relief in terms of para 8(A)

and also orders dated April 26, 2004 and the

final order dated January 10, 2005 by this

Court. It was urged that though the suit was

pending before the trial Court and the matter

was sub-judice, in agreements to sell as also

in sale deeds, an express and unequivocal

statement was made by the contemners that their

title to the property is ‘clear’ and

‘marketable’. It was ordered by the Court on

January 10, 2005 that if any third party right

1

would be created, it “shall be done after

notice to the petitioners”. No such notice,

however, was given to the petitioners. It was

only after the properties were sold that a

‘pursis’ was filed in the trial Court stating

therein that certain properties were sold by

the defendants. Thus, there was clear breach of

orders of this Court and the contemners are

liable to be punished for violating the interim

orders.

18. The learned counsel for the

respondents-contemners, on the other hand,

submitted that the Contempt Petitions are

liable to be dismissed. The respondents had not

wilfully and intentionally violated interim

orders of this Court. No doubt, the High Court,

granted interim injunction in Civil Application

in Appeal from Order on July 23, 2003 but

finally Appeal from Order itself was dismissed.

Similarly, this Court on April 26, 2004

continued interim relief but ultimately,

dismissed Special Leave Petitions on January

1

10, 2005 by modifying earlier interim order. It

was also submitted that this Court never

ordered to give ‘prior’ notice to the

petitioners before entering into any agreement

or executing sale-deed. It was, therefore, not

necessary for the respondents either to issue

notice or to intimate petitioners before

entering into any transaction. But in certain

cases, even ‘prior’ notice of transaction was

given to the petitioners by the respondents;

though in some cases, such notice was given

after entering into agreements/transactions but

the same could not be said to be violative of

the orders passed by this Court. Alternatively,

it was submitted that even if the Court finds

that there is ‘technical’ breach of the orders

of this Court, the respondents have tendered

unconditional and unqualified apology which may

be accepted by this Court and contempt

proceedings may be dropped against them by

showing magnanimity and taking lenient view.

1

19. We have given most anxious and

thoughtful consideration to the rival

contentions of the parties. We have also gone

through the relevant record and orders passed

by the High Court as also by this Court. We

have perused affidavits and further affidavits

filed by the parties to these petitions. We

have carefully gone through various documents

on record.

20. We have reproduced both interim orders

passed by this Court; (i) order, dated April

26, 2004, and (ii) order, dated January 10,

2005. Under the first order, larger relief was

granted, obviously because at that stage, the

Court on prima facie satisfaction of the case,

issued notice to the respondents. Moreover,

even the High Court which had granted interim

relief on July 23, 2003, continued the said

relief (though Appeal from Order was dismissed

and interim relief was vacated) so as to enable

the aggrieved parties to approach this Court.

On January 10, 2005, however, this Court

1

disposed of Special Leave Petitions. But taking

note of the pendency of the main matter (suit),

the Court did not totally vacate interim relief

but modified it by imposing certain conditions.

The question before us is whether the

contemners had violated both the orders or any

of the two orders and whether such violation or

disobedience was wilful or intentional as

alleged by the petitioners. If so, what

punishment should be imposed on the contemners

and what should be the final order in these

contempt petitions.

21. Before proceeding with the

consideration of rival contentions, it may be

stated for the completion of record that

Special Civil Suit No. 605 of 2002 instituted

by the petitioners herein (plaintiffs) was

decreed by the IXth Additional Senior Civil

Judge, Vadodara on May 23, 2006 and it was

declared that plaintiff Nos. 1 and 2 and

defendant Nos. 1, 4 and 5 each has 3/16 share

in the suit property and defendant Nos. 7, 8

1

and 9 each has 1/48 share in the said property.

Preliminary decree was ordered to be drawn up

accordingly. It was also stated that the

defendants against whom the decree is passed

have challenged the decree by filing First

Appeal in the High Court and the matter is

sub-judice.

22. Now, it is the case of the petitioners

that in spite of interim orders of this Court,

dated April 26, 2004 and January 10, 2005, in

gross violation, wilful disobedience and

intentional breach thereof, the contemners had

sold certain properties without notice to the

petitioners. It was stated that the contemners

executed a sale-deed in favour of Madhuben

Rohit and Jasodaben Thakor on August 30, 2005

for consideration of Rs.3,30,000/-. The

contemners accepted a cheque of Rs.2,00,000/-

bearing No. 531526, dated October 15, 2004.

Similarly, an agreement to sell was executed in

favour of Hemlataben Shah for Rs.3,00,000/- on

May 26, 2005 and the entire amount was received

1

by three cheques; cheque No.719372, dated April

15, 2004; cheque No.719374, dated April 22,

2004 and cheque No. 216684, dated April 29,

2004. Again, a sale deed in favour of Smt.

Ranjit Gulati was executed by accepting a

cheque of Rs.51,000/- dated September 10, 2003,

a cheque of Rs.1,00,000/- dated October 8, 2004

and a cheque of Rs.1,39,000/- dated April 26,

2004. By producing additional documents on

record, the petitioners have stated that sale-

deeds were executed by the contemners in favour

of Jayesh Natwarlal Parikh on August 18, 2005;

Hemaben Jayeshbhai Parikh on August 18, 2005,

Rashmikaben Navinchandra Desai on August 30,

2005 and Tolaram Radharam Popat on April 25,

2005. All these transactions were entered into

in gross violation and breach of the orders of

the Court and the contemners may, therefore, be

punished for committing contempt of Court.

23. The respondents have filed affidavits

denying the allegations levelled by the

petitioners and asserting that they have not

1

committed any act in disobedience of the order

of the Court and the contempt petitions are

liable to be dismissed.

24. Respondent No. 1 (Chandrakant

Dhulabhai), in his affidavit, dated June 16,

2006 (filed on August 17, 2006) stated that the

contempt petitions are ‘primarily’ directed

against respondent Nos. 2 and 3 who are alleged

to have violated the orders of this Court. It

was stated that the orders were required to be

complied with by respondent Nos. 2 and 3 and

were not directed against respondent No. 1. It

was also stated that the respondent No. 1 is 67

years old and has been impleaded just to harass

him without making any averment/allegation

against him. It is, therefore, prayed to

dismiss contempt petitions against him.

25. A counter-affidavit is also filed by

respondent Nos. 2 and 3 controverting the

averments and denying the allegations of the

petitioners in the Contempt Petitions. It was

stated that during the operation of interim

2

order dated April 26, 2004, they had neither

executed any sale deed nor created third party

interest in the suit property. The cheques

said to have been accepted by them during

interim orders represented the amount paid

towards consideration of the apartment booked

prior to the issuance of interim orders.

26. Regarding the allegation that the

title of the suit property was described as

‘clear and marketable’, it was stated that as

per the order of the Court, what was required

to be mentioned was the pendency of the

proceedings. In all the sale deeds, executed

by the respondents, specific recital was made

that the transaction was subject to pendency of

civil suit and final decision therein.

27. Regarding the third allegation of not

giving notice to the petitioners, it was stated

that no ‘prior’ notice was required as per the

order of this Court. It was stated;

a.in order to protect the interest of

the parties, this Hon’ble Court

passed a conditional order stating

2

inter alia “any third party rights

which is created shall be done

after notice to the petitioners”.

This Hon’ble Court has not used the

word “prior” as alleged. This

Hon’ble Court had desired that as

and when third party rights are

created, the petitioners should be

duly informed. The purpose of such

information was to enable the

petitioners to protect their

interest by impleading such third

parties in the pending suit.

b.Admittedly, initially, by pursis

dated 1.3.2005, the petitioners

were given prior intimation about

the creation of third party rights.

However, subsequently it was found

that out of the 11 sale deeds which

were proposed to be executed and

about which prior intimation by

pursis dated 1.3.2005 was given – 7

sale deeds could not be executed

for quite some time, as the deal

could not be finalized. Further,

before executing the sale deeds, 2

buyers/third parties/allottees got

the deals transferred in some other

name, viz. name of their

wife/child.

28. Hence, as per legal advice obtained,

the intimation was being submitted before the

Hon’ble Civil Court after taking endorsement of

Advocate for the petitioner.

2

29. It was further stated by respondent

Nos. 2 and 3 that originally land bearing

Survey Nos. 459/2, 464, 465, 466/1 and 466/2,

admeasuring 26.608 Sq.M. was jointly purchased

by Chandrakant Dhulabhai Patel and Chandulal

Muljibhai Parikh in 1961. In 1990, however, an

understanding had been arrived at between the

heirs and legal representatives of Chandulal

Parikh and Chandrakant Dhulabhai Patel and as

per partition, 50% land situated on the western

side (Part ‘A’) fell to the share of

Chandrakant Patel whereas 50% land on the

eastern side (Part ‘B’) came to the share of

Parikh family. It was further stated that

respondent Nos. 2 and 3 entered into

Development Agreement with Parikh family for

50% eastern side land (Part ‘B’) which came to

the share of Parikh family and also with

respondent No. 1 Chandrakant Patel for western

side of land (Part ‘A’). The scheme was thus

jointly promoted for part ‘A’ land and part ‘B’

land. In course of time, property ‘A’ became

2

disputed property, but there was no dispute as

to property of part ‘B’. It was also stated

that part ‘B’ property abuts 30 metres wide

road while part ‘A’ property abuts 40 meters

wide T.P. Road. Thus, part ‘A’ property (suit

property) was having better location and higher

commercial value.

30. Respondent Nos. 2 and 3 admitted that

Madhuben Rohit and Jasodaben Thakor deposited

Rs. two lacs on October 15, 2004 for booking

one of the shops which was to be constructed on

Part ‘B’ property. But after the disposal of

Special Leave Petitions on January 10, 2005,

the injunction came to an end regarding part

‘A’ property. Under the circumstances, request

of Madhuben and Jasodaben for allotment of shop

in part ‘A’ property instead of part ‘B’

property was favourably considered and

accepted. Cases of Hemlataben Shah, Rashmikaben

and Ranjit Gulati were identical. Sale-deed in

favour of Dr. Tolaram Popat was executed on

January 24, 2005, i.e. after final disposal of

2

SLP and there was no interim injunction at that

time.

31. It was, therefore, submitted that

respondent Nos. 2 and 3 had not created any

right in favour of third party during the

operation of interim order and there was no

question of taking proceedings under the

Contempt of Courts Act.

32. Regarding notice to petitioners, the

respondents stated that pursis, Ex. 88 was

filed in the trial Court wherein details had

been supplied in respect of 11 transfer deeds

which were to be executed. Thereafter, again

pursis, Ex. 106 was filed on September 01, 2005

in which all details were given. Thus, they

have not violated the order of this Court.

33. Finally, it was stated;

“Without prejudice to the

above, the respondents tender their

unconditional apology to this

Hon’ble Court.”

34. In affidavit-in-rejoinder, the

petitioners have stated that after examining

2

oral and documentary evidence, the competent

Court passed a decree in favour of plaintiffs

declaring shares of plaintiffs and defendants.

Meanwhile, however, the respondents disposed of

several properties. It was reiterated that

illegally and with mala fide intention, the

respondents created third party interest in

gross defiance of interim orders and by making

inconsistent and contradictory statements. A

false statement was made by respondents in sale

deeds and in agreements to sell that the title

of the respondents over the property was ‘clear

and marketable’. As to properties part ‘A; and

‘B’, it was stated that the contention was

wholly irrelevant inasmuch as the trial Court

decreed the suit by holding the plaintiffs as

joint owners of the property.

35. Further affidavit was thereafter filed

by respondent Nos. 2 and 3 on February 25, 2008

on the question of title deeds. It was stated

that in sale deeds, a statement was made that

“third party has no right, title, interest or

2

claim and the property (subject-matter of sale

deed) was not under attachment”. But it was

also stated that the suit was pending and the

sale-deeds were executed subject to final

decision in the suit. Thus, the respondents

had acted bona fide. They have not only

notified in the sale-deeds the pendency of

civil suit but also have gone a step further

and stated that the sale-deeds were being

executed subject to final decision in the

pending suit. It was, therefore, submitted

that the Contempt Petitions should be

dismissed.

36. From the facts stated above, it is

proved that there is breach of interim orders

passed by this Court. So far as the defence as

to properties falling in parts ‘A’ and ‘B’ is

concerned, in our opinion, it is clearly an

after thought and the plea has been put forward

without there being anything on record. Though

it was stated that initially, Madhuben,

Hemlataben, Rashmikaben and Ranjit Gulati were

2

given shops in part ‘B’ property, no such

agreements/deeds have been placed on record. It

was then stated that after interim relief was

vacated and request was made by them to allot

them shops in part ‘A’ property, no

evidence/material has been adduced by the

contemners. A stereo-type affidavits have been

filed sworn on one and the same day, July 29,

2006 after contempt notice was served upon the

respondents. Even the sale-deeds do not recite

part ‘A’ or ‘B’ of the property or the fact

that earlier the allottee was granted shop in

part ‘B’ property but after the disposal of the

Special Leave Petitions, request was made by

the purchaser to convert the allotment from

part ‘B’ property to part ‘A’ property. The

so-called defence, therefore, is apparently to

avoid consequences of contempt proceedings.

37. Moreover, the defence does not appear

to be probable. Normally, no reasonable and

prudent man/woman who purchases immovable

property with a ‘clear’ title would request the

2

owner of the property to allot him/her property

over which his title is not clear, which is the

subject-matter of litigation, for which a suit

is pending and the matter is sub-judice in a

Court of law.

38. Further, the pleas advanced by

respondent Nos. 2 and 3 are inconsistent,

conflicting and irreconcilable. On the one

hand, it was asserted that during the operation

of the interim order, dated April 26, 2004,

respondent Nos. 2 and 3 had not created third

party interest in the suit property and the

cheques said to have been accepted by them

during the pendency of proceedings ‘represented

the amount paid towards consideration of the

apartment booked prior to the issuance of the

interim orders,’ while on the other hand, it

was stated that initial booking was for shops

to be constructed on part ‘B’ property, but

subsequently, after dismissal of Special Leave

Petitions, at the request of purchasers,

2

allotment was converted from part ‘B’ property

to part ‘A’ property. If it were so, there was

no question of raising a plea that the

acceptance of cheques during the pendency of

the interim orders represented the amount of

consideration booked prior to the issuance of

interim orders. If initial booking and payment

was in relation to part ‘B’ property, it was

immaterial and altogether irrelevant whether it

was prior or subsequent to filing suit by the

plaintiffs or grant of interim orders either by

the High Court or by this Court.

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

contemners, 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,

3

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.

40. The matter did not end there. Special

Leave Petitions were filed in this Court by the

petitioners against an interim order not

granting injunction below Application, Ex.5.

Though the High Court granted such injunction,

but it was vacated at the time of dismissal of

Appeal from Order. But all the parties to the

suit were aware that the main matter (suit) was

pending and rights of contesting parties in the

suit-property were yet to be decided. In the

circumstances, ‘injunction’ or ‘no injunction’,

the title of the defendants was ‘under

challenge’. It was ‘cloudy’ and unless and

until the suit is decided, it cannot be said

3

that they had ‘clear and marketable title’.

Though the legal position is clear and beyond

controversy, we find that an express,

unambiguous and unequivocal statement is made

by the contemners in all sale deeds that their

title to the property is ‘clear and

marketable’. It was also stated that they were

independent owners, possessors and occupiers of

the property and there was no right, interest,

part share, claim of anybody else therein.

41. It was, no doubt, submitted by the

learned counsel for the contemners that it was

specifically and clearly stated that a suit was

pending in the Court of Civil Judge (Senior

Division), Vadodara and it was also clarified

that the documents were executed subject to the

final decision in the suit. It was further

submitted that if the owner of the property

does not state that he has title over the

property he seeks to transfer and that such

title is ‘clear and marketable’, no reasonable

and prudent man would come forward to purchase

3

such property. To this extent, the learned

counsel is right. That, however, does not mean

that in such case, a person whose title is

challenged and the proceedings are pending will

be permitted to say that his title is ‘clear

and marketable’ and there is no impediment on

the contemners from transferring the property

in favour of purchasers.

42. Finally, in any case, there is clear

breach and violation of the order of this

Court, i.e. order, dated January 10, 2005 so

far as ‘notice’ to the petitioners is

concerned. It is not disputed even by the

contemners that in some cases, notice as to

creation of third party interest had been given

after creation of such interest by filing

pursis in the Court.

43. The learned counsel for the contemners

half-heartedly submitted that this Court had

not ordered that ‘prior’ notice should be given

to the petitioners regarding creation of third

3

party rights and hence, there was no violation

of the direction of the Court.

44. We are unable to agree with the

submission. This Court has stated; “Any third

party right which is created shall be done

after notice to the petitioners.” In our view,

the direction has only one meaning and it is

that third party interest can only be created

after notice to the petitioners. Admittedly,

that was not done, at least, in few cases. It

is, therefore, clear that there is violation

and disobedience of the orders of the Court and

the contemners are responsible for such act.

45. From the overall considerations of the

matter in the light of series of events, we

hold that the respondents-contemners have

disregarded and violated the orders passed by

this Court on April 26, 2004 and January 10,

2005.

46. The next question is whether for

disobedience of the order passed by this Court,

3

the respondents/contemners are liable to

punishment? In this connection, we may refer to

some of the legal provisions. Article 129 of

the Constitution declares this Court (Supreme

Court) to be “a Court of Record having all the

powers of such a Court including the power to

punish for the contempt of itself”. Clause (c)

of Section 94 of the Code of Civil Procedure,

1908 enacts that in order to prevent the ends

of justice from being defeated, the Court may,

commit the person guilty of disobedience of an

order of interim injunction to civil prison and

direct his property be attached and sold. Rule

2A of Order XXXIX as inserted by the Code of

Civil Procedure (Amendment) Act, 1976 (Act 104

of 1976) reads thus:

2A. Consequence of disobedience or

breach of injunction—(1) In the case

of disobedience of any injunction

granted or other order made under rule

1 or rule 2 or breach of any of the

terms on which the injunction was

granted or the order made, the Court

granting the injunction or making the

order, or any Court to which the suit

or proceeding is transferred, may

3

order the property of the person

guilty of such disobedience or breach

to be attached, and may also order

such person to be detained in the

civil prison for a term not exceeding

three months, unless in the meantime

the Court directs his release.

(2) No attachment made under this rule

shall remain in force for more than

one year, at the end of which time, if

the disobedience or breach continues,

the property attached may be sold and

out of the proceeds, the Court may

award such compensation as it thinks

fit to the injured party and shall pay

the balance, if any, to the party

entitled thereto.

47. The provisions of the Contempt of

Courts Act, 1971 have also been invoked.

Section 2 of the Act is a definition clause.

Clause (a) enacts that contempt of court means

‘civil contempt or criminal contempt’. Clause

(b) defines ‘civil contempt’ thus;

(b) ‘civil contempt’ means wilful

disobedience to any judgement, decree,

direction, order, writ or other

process of a court or wilful breach of

an undertaking given to a court.

3

48. Reading of the above clause makes it

clear that the following conditions must be

satisfied before a person can be held to have

committed a civil contempt;

(i) there must be a judgment, decree,

direction, order, writ or other

process of a Court (or an undertaking

given to a Court);

(ii)there must be disobedience to such

judgment, decree, direction, order,

writ or other process of a Court (or

breach of undertaking given to a

Court); and

(iii)such disobedience of judgment, decree,

direction, order, writ or other

process of a Court (or breach of

undertaking) must be wilful.

49. Section 12 provides punishment for

contempt of Court. The relevant part of the

provision reads thus;

S. 12 - Punishment for contempt of

court—(1) Save as otherwise expressly

provided in this Act or in any other

law, a contempt of court may be

punished with simple imprisonment for a

term which may extend to six months, or

3

with fine which may extend to two

thousand rupees, or with both:

Provided that the accused may be

discharged or the punishment awarded

may be remitted on apology being made

to the satisfaction of the court.

Explanation.--An apology shall not be

rejected merely on the ground that it

is qualified or conditional if the

accused makes it bona fide.

(2) Notwithstanding anything contained

in any law for the time being in force,

no court shall impose a sentence in

excess of that specified in sub-section

(1) for any Contempt either in respect

of itself or of a court subordinate to

it.

(3) Notwithstanding anything contained

in this section, where a person is

found guilty of a civil contempt, the

court , if it considers that a fine

will not meet the ends of justice and

that a sentence of imprisonment is

necessary shall, instead of

sentencing him to simple imprisonment,

direct that he be detained in a civil

prison for such period not exceeding

six months as it may think fit.

. . . . . . . . .

50. In Ashok Paper Kamgar Union v. Dharam

Godha & Ors., (2003) 11 SCC 1, this Court had

3

an occasion to consider the concept of ‘wilful

disobedience’ of an order of the Court. It was

stated that ‘wilful’ means an act or omission

which is done voluntarily and with the specific

intent to do something the law forbids or with

the specific intent to fail to do something the

law requires to be done, that is to say, with

bad purpose either to disobey or to disregard

the law. According to the Court, it signifies

the act done with evil intent or with a bad

motive for the purpose. It was observed that

the act or omission has to be judged having

regard to the facts and circumstances of each

case.

51. In Kapildeo Prasad Sah & Ors. v. State

of Bihar & Ors., (1999) 7 SCC 569, it was held

that for holding a person to have committed

contempt, it must be shown that there was

wilful disobedience of the judgment or order of

the Court. But it was indicated that even

negligence and carelessness may amount to

3

contempt. It was further observed that issuance

of notice for contempt of Court and power to

punish are having far reaching consequences,

and as such, they should be resorted to only

when a clear case of wilful disobedience of the

court's order is made out. A petitioner who

complains breach of Court's order must allege

deliberate or contumacious disobedience of the

Court's order and if such allegation is proved,

contempt can be said to have been made out, not

otherwise. The Court noted that power to punish

for contempt is intended to maintain effective

legal system. It is exercised to prevent

perversion of the course of justice.

52. In the celebrated decision of Attorney

General v. Times Newspaper Ltd.; 1974 AC 273 :

(1973) 3 All ER 54 : (1973) 3 WLR 298; Lord

Diplock stated:

“There is an element of

public policy in punishing civil

contempt, since the administration

4

of justice would be undermined if

the order of any court of law

could be disregarded with

impunity.”

53. In Anil Ratan Sarkar & Ors. v. Hirak

Ghosh & Ors., (2002) 4 SCC 21, this Court held

that the Contempt of Courts Act has been

introduced in the statute-book for securing

confidence of people in the administration of

justice. If an order passed by a competent

Court is clear and unambiguous and not capable

of more than one interpretation, disobedience

or breach of such order would amount to

contempt of Court. There can be no laxity in

such a situation because otherwise the Court

orders would become the subject of mockery.

Misunderstanding or own understanding of the

Court’s order would not be a permissible

defence. It was observed that power to punish a

person for contempt is undoubtedly a powerful

weapon in the hands of Judiciary but that by

itself operates as a string of caution and

4

cannot be used unless the Court is satisfied

beyond doubt that the person has deliberately

and intentionally violated the order of the

Court. The power under the Act must be

exercised with utmost care and caution and

sparingly in the larger interest of the society

and for proper administration of justice

delivery system. Mere disobedience of an order

is not enough to hold a person guilty of civil

contempt. The element of willingness is an

indispensable requirement to bring home the

charge within the meaning of the Act.

54. In Commissioner, Karnataka Housing

Board v. C. Muddaiah, (2007) 7 SCC 689, one of

us (C.K. Thakker, J.) observed that once a

direction is issued by a competent Court, it

has to be obeyed and implemented without any

reservation. If an order passed by a Court of

Law is not complied with or is ignored, there

will be an end of Rule of Law. If a party

against whom such order is made has grievance,

4

the only remedy available to him is to

challenge the order by taking appropriate

proceedings known to law. But it cannot be made

ineffective by not complying with the

directions on a specious plea that no such

directions could have been issued by the Court.

Upholding of such argument would seriously

affect and impair administration of justice.

55. In All Bengal Excise Licensees

Association v. Raghabendra Singh & Ors., (2007)

11 SCC 374, this Court considered several cases

and observed that wilful and deliberate act of

violation of interim order passed by a

competent Court would amount to contempt of

Court.

56. A reference in this connection may

also be made to a decision of this Court in

Tayabbhai M. Bagasarawala v. Hind Rubber

Industries (P) Ltd., (1997) 3 SCC 443. In that

case, the plaintiff-landlord filed a suit

4

against the defendant-tenant in the City Civil

Court for permanent injunction restraining the

defendant from carrying on construction in the

suit premises. Ad interim injunction was

granted by the Court. Defendant’s application

for vacating injunction was dismissed. The

defendant, however, committed breach of

injunction. The plaintiff, hence, filed an

application under Order XXXIX, Rule 2-A of the

Code. The defendant came forward and raised an

objection as to jurisdiction of the Court and

power to grant injunction. The High Court,

ultimately, upheld the objection and ruled that

City Civil Court had no jurisdiction to

entertain the suit. It was, therefore, argued

by the defendant that he cannot be punished for

disobedience of an order passed by a Court

which had no jurisdiction to entertain a suit

or to grant injunction. The High Court upheld

the contention. The plaintiff approached this

Court.

4

57. This Court observed that until the

question of jurisdiction had been decided, the

City Civil Court possessed power to make

interim orders. The Court could also enforce

them. A subsequent decision that the Court had

no jurisdiction to entertain the suit did not

render interim orders passed earlier non est or

without jurisdiction. A party committing breach

of such orders could not escape the

consequences of such disobedience and violation

thereof. Accordingly, the Court held the

defendant guilty for intentionally and

deliberately violating interim order and

convicted him under Rule 2-A of Order XXXIX of

the Code and sentenced him to one month’s

imprisonment.

58. Speaking for the Court, Jeevan Reddy,

J. stated;

“Can it be said that orders passed

by the Civil Court and the High Court

during this period of six years were

4

all non est and that it is open to the

defendants to flout them merrily,

without fear of any consequence. 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 the Rule of

Law and would seriously erode the

dignity and the authority of the

courts. (emphasis supplied)

59. From the above decisions, it is clear

that punishing a person for contempt of Court

is indeed a drastic step and normally such

action should not be taken. At the same time,

however, it is not only the power but the duty

of the Court to uphold and maintain the dignity

of Courts and majesty of law which may call for

such extreme step. If for proper administration

of justice and to ensure due compliance with

4

the orders passed by a Court, it is required to

take strict view under the Act, it should not

hesitate in wielding the potent weapon of

contempt.

60. Now, in the instant case, both the

orders passed by this Court on April 26, 2004

and January 10, 2005, were explicitly clear.

The first order totally prohibited/restrained

the respondents/contemners from creating any

interest whatsoever in the suit property. As

held by us, in spite of the said order,

interest had been created by the contemners in

the suit property. But even otherwise there is

intentional disobedience and wilful breach of

the subsequent order dated January 10, 2005

inasmuch as transactions had been entered into

without issuing notice to the petitioners. We

have already held that they could not have been

entered into by the respondents before issuance

of notice to the petitioners. The respondents

were clearly aware of the order. In fact, the

4

action was sought to be defended and justified

on the ground that the Court had not directed

‘prior’ notice, and as such, non-issuance of

notice before entering into sale transactions

would not amount to disobedience of the order

of the Court. We are unable to uphold the

contention. In the circumstances it must be

held that the disobedience of the order by the

contemners was wilful, intentional and

deliberate.

61. The question then is whether the case

calls for imposition of punishment on the

contemners. The learned counsel for the

contemners submitted that in the affidavit in

reply, the respondents have stated that if this

Court comes to the conclusion that they had

committed contempt of Court, the Court may

accept unconditional and unqualified apology

and may discharge notice. The counsel submitted

that the statutory provision itself enacts that

no apology shall be rejected merely on the

4

ground that it is qualified or conditional

[Explanation to Section 12(1)].

62. We must frankly admit our inability to

agree with the learned counsel. In the light

of what is stated above, we are convinced that

the contemners have intentionally and

deliberately violated the orders of the Court.

We are also convinced that the orders were

clear, unambiguous and unequivocal having one

and only one meaning. Wilful and deliberate

disobedience of the orders passed by the apex

Court of the country can never be said to be

bona fide, honest or in good faith. If it is

so, the action calls for serious view to ensure

proper administration of justice.

63. In Hiren Bose, Re, AIR 1969 Cal 1 : 72

Cal WN 82, the High Court of Calcutta stated;

”It is also not a matter of course

that a Judge can be expected to accept

any apology. Apology cannot be a

4

weapon of defence forged always to

purge the guilty. It is intended to be

evidence of real contrition, the manly

consciousness of a wrong done, of an

injury inflicted and the earnest

desire to make such reparation as lies

in the wrong-doer's power. Only then

is it of any avail in a Court of

justice But before it can have that

effect, it should be tendered at the

earliest possible stage, not the

latest. Even if wisdom dawns only at a

later stage, the apology should be

tendered unreservedly and

unconditionally, before the Judge has

indicated the trend of his mind.

Unless that is done, not only is the

tendered apology robbed of all grace

but it ceases to be an apology It

ceases to be the full, frank and manly

confession of a wrong done, which it

is intended to be”.

64. It is well-settled that an apology is

neither a weapon of defence to purge the guilty

of their offence; nor is it intended to operate

as a universal panacea, it is intended to be

evidence of real contriteness [Vide M.Y.

Shareaf v. Hon’ble Judges of the High Court of

Nagpur; (1955) 1 SCR 757 : M.B. Sanghi v. High

Court of Punjab & Haryana, (1991) 3 SCR 312].

65. In T.N. Godavarman Thirumulpad through

5

the Amicus Curiae v. Ashok Khot & Anr., 2006

(5) SCC 1, a three Judge Bench of this Court

had an occasion to consider the question in the

light of an ‘apology’ as a weapon defence by

the contemner with a prayer to drop the

proceedings. The Court took note of the

following observations of this Court in L.D.

Jaikwal v. State of U.P., (1984) 3 SCC 405:

"We are sorry to say we cannot

subscribe to the 'slap-say sorry-

and forget' school of thought in

administration of contempt

jurisprudence. Saying 'sorry' does

not make the slipper taken the

slap smart less upon the said

hypocritical word being uttered.

Apology shall not be paper apology

and expression of sorrow should

come from the heart and not from

the pen. For it is one thing to

'say' sorry-it is another to

'feel' sorry”.

66. The Court, therefore, rejected the

prayer and stated;

“Apology is an act of contrition.

Unless apology is offered at the

5

earliest opportunity and in good

grace, the apology is shorn of

penitence and hence it is liable to

be rejected. If the apology is

offered at the time when the

contemnor finds that the court is

going to impose punishment it

ceases to be an apology and becomes

an act of a cringing coward”.

67. Similar view was taken in other cases

also by this Court.

68. We are also satisfied that the so-

called apology is not an act of penitence,

contrition or regret. It has been tendered as a

‘tactful move’ when the contemners are in the

tight corner and with a view to ward off the

Court. Acceptance of such apology in the case

on hand would be allowing the contemners to go

away with impunity after committing gross

contempt of Court. In our considered opinion,

on the facts and in the circumstances of the

case, imposition of fine in lieu of

imprisonment will not meet the ends of justice.

5

69. Considering the facts and

circumstances in their entirety, in our

opinion, ends of justice would be served if we

hold the respondents/contemners guilty under

Section 12 of the Contempt of Courts Act, 1971,

read with Section 94(c) and Rule 2-A of Order

XXXIX of the Code of Civil Procedure, 1908 as

amended by the Code of Civil Procedure

(Amendment) Act, 1976 and Article 129 of the

Constitution and order the respondents-

contemners to undergo simple imprisonment for a

term of two weeks i.e. fourteen days.

70. Ordered accordingly. The Contempt

Petitions are disposed of.

……………………………………………………………J.

(C.K. THAKKER)

NEW DELHI, ……………………………………………………………J.

JULY 21, 2008. (AFTAB ALAM)

5