Dismissed

Ayesha Begum Sujaiuddin and Ors. v. Kazi Rajiyuddin Jahiruddin through Legal Representative Smt. Asifa Begum Rajiyuddin and Ors.

Bombay HC7 Dec 2007CP/67/2007

Case brief

AI extract

What is this about?

The single judge disposed of a Contempt Petition alleging breach of court undertaking. The court held that executing a General Power of Attorney during a stay did not constitute creating a third-party interest, the petition was not maintainable, and the allegations did not prove civil contempt.

What did the court decide?

Contempt Petition No. 67 of 2007 dismissed for lack of merit and maintainability.

Ayesha Begum Sujaiuddin and Ors. Vs Kazi Rajiyuddin… — Contempt of Court | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION NO. 67 OF 2007
IN
CIVIL APPLICATION NO 5879 OF 1997
IN
WRIT PETITION NO. 3614 OF 1990
1.Ayesha Begum Sujaiuddin and Ors...Petitioners.
Versus
1. Kazi Rajiyuddin Jahiruddin
(since deceased through L.R.’s)..Respondents.
A.N.Mulla for the petitioners.
Mr.G.S.Godbole for respondent nos.1(a) to 1(b) and
2 and 3.
CORAM: S.C.DHARMADHIKARI, J
7th December, 2007.
O R D E R :
1.On 7.12.2007 I had passed the following
order:-

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".For the reasons to be separately
recorded, petition is dismissed.

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2.The reasons for the dismissal of the Contempt
Petition are set out herein below.

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3.Heard Mr.Mulla appearing for the petitioners
and Mr.Godbole, appearing for Respondent nos.1(a) to
1(c), 2 and 3. This Contempt Petition alleges that
the respondent nos.1 to 3 have deliberately and
willfully committed breach of an Undertaking given
to this court on 25.9.1997 in Civil Application No.
5879 of 1997 in Writ Petition No. 3614 of 1990.

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4.Mr.Mulla submits that Respondent nos.1 to 3
preferred a Writ Petition being Writ Petition No.
3614 of 1990 in this court against the judgment and
decree passed by the Civil Judge, Senior Division,
Nasik in Darkhast No. 57 of 1959.

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5.It is urged that the suit was filed for
administration of properties being Special Civil

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Suit No. 40 of 1955.

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6.This suit was filed by the ancestors of the
present petitioner and Respondent nos.1 to 3. It
was decreed and share of respective heirs was
determined. The Regular Darkhast was filed and that
was also decided on 5.4.1990.

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7.This court granted interim relief in terms of
prayer clause (c) of the above Writ Petition on
7.8.1990 and the subject proceedings were stayed to
the extent of Survey No. 806/2B and 806/4. It is
submitted that the suit property was not divided by
metes and bounds. The partition was yet to be
effected. Still, the respondents wrongfully
purported to transfer a part of the suit premises by
executing an Agreement for sale. The respondents
were fully aware that this court had stayed the
proceedings and the ad-interim order was in force.
Therefore, the petitioners preferred C.A.No.5879 of
1997 preventing alienation or third party rights
being created. In the Civil Application, this court
passed the following order on 25.9.1997:-

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".The Ld.Counsel for the Respondent no.1
to 3 states that, the Respondent no.1 to 3
shall not part with possession or create any
third party interest during pendency of the
Writ Petition. Statement is accepted.
Disposed of.

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8.The petitioners thereafter alleged that the

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writ Petition was listed for hearing and final
disposal and this court was pleased to dismiss the
Writ Petition filed by Respondent nos.1 to 3. This
court was pleased to hold that the
respondent/original petitioners did not approach
this court with clean hands. They have suppressed
vital materials and facts. The Writ Petition was
therefore dismissed. My attention is invited to the
order dated 6.11.1997 in the above writ petition.

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9.The respondents who are original petitioners
challenged this judgment by filing Special Leave
Petition NO. 793/32 of 1998 in the Supreme court of
India. The Supreme Court of India initially passed
an interim order staying the execution proceedings.
Subsequently, the SLP was converted into Regular

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Civil Appeal bearing No. 2904 and 2905 of 2001.
After hearing the parties, the Supreme Court of
India was pleased to allow the Appeal and remanded
the matter back to this court for fresh hearing.

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10.Subsequently, that Writ Petition has been
placed before a Learned Single Judge of this Court
and the Learned Single Judge has admitted the Writ
Petition. A request was made to this court to
restore the interim order passed earlier. However,
the court passed an order that the lower court can
proceed with the matter and pass a final decree but
the final decree will not be given effect, till Writ
Petition NO. 3614 of 1990 is disposed off.

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11.In the meanwhile, it is alleged that the
respondents have from the very beginning taken
advantage of the poverty and illiteracy of the
parties. The subject lands have not come to their
share, yet the Respondent nos.1 to 3 have contrary
to the Undertaking given to this court on 25.9.1997,
executed a registered General Power of Attorney on
17.11.2006 in favour of Respondent no.4. Therefore,

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by executing such power of Attorney the Respondent
nos.1 to 3 have acted in violation of their
Undertaking to this court that they will not part
with possession and create any third party interest
in respect of the above lands. By appointing
Respondent no.4 as their General power of Attorney
for the purpose of selling and transferring the suit
land during pendency of this Writ Petition, the
Respondent nos.1 to 3 have acted in contravention
and breach of the Undertaking given to this court.
Respondent nos.1 to 3 were fully aware that there is
a stay to the execution proceedings. In such
circumstances, this court must take appropriate
action in accordance with law.

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12.On this Contempt Petition, this court has
issued Show Cause Notice on March 6, 2007 and made
it returnable on 20.4.2007. Mr.Godbole entered his
appearance and sought time to file reply. There is
a reply-affidavit filed by the respondents. They
have in their reply-affidavit pointed out that the
contempt petition is not maintainable. Even the
contempt petitioner has suppressed the material

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facts, inasmuch as, the petitioner no.2 in the
Contempt Petition has expired on 29.1.2000. The
petitioners have filed the Contempt petition by
suppressing the fact that they cannot be constituted
attorney of the deceased Kamaruddin Akbarsaheb Kazi.
Further petitioner no.4 Jilani Akbar Kokani is not a
party to the Writ Petition No. 3614 of 1990 either
in his individual capacity or in the capacity as
Constituted Attorney though he may have appeared in
the Writ Petition on behalf of some of the
respondents claiming to be their constituted
attorneys. He cannot therefore file a Contempt
Petition. Thirdly, the petitioner no.3 had already
terminated the power of attorney in favour of
petitioner no.4 and a public notice was issued on
that behalf on 24.10.2006. Lastly, it is urged that
the petitioner no.1 had sent a notice dated
17.4.2007 through her advocate stating that the
Contempt Petition has been filed without obtaining
her consent and concurrence. Contempt Petition is
not in the interest of the petitioners.

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13. Apart from the above preliminary objections,

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it is contended that there is no contempt as alleged
of the Undertaking given to this court. The
statement made to this court was that Respondent
nos.1 to 3 will not part with possession or create
any third party rights or interest. The members of
the Quazi family, some of whom were parties to the
Writ Petition and some were not, have signed and
executed a Registered partition deed dated 5.3.2007.
The petitioners to this contempt petition have not
set out and suppressed the background in which the
power of attorney was executed. The power of
attorney has been executed after it was agreed
between the Kazi family members that the property
would be partitioned. The power of attorney which
was executed does not at all create any third party
rights or interest in the property. Apart from
this, petitioner no.4 cannot file and prosecute the
Contempt Petition inasmuch as Ayesha Begum Sujauddin
Kazi, petitioner no.1, petitioner no.3 Muzibuddin
Khairuddin Kazi and heirs and legal representatives
of deceased petitioner no.2 have executed an
identical Power of Attorney dated 30.9.2006 in
favour of Bhaskar Laxman Tambe. Copies of power of

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attorneys have been annexed, further, other
respondents have adopted the statements in these
affidavits. In the affidavit filed on 17.10.2007 on
behalf of Respondent no.1(c) the following is stated
:-

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"3.I say that after filing of the
Contempt Petition, one Jilani Akbar Kokani
i.e. Petitioner no.4 has entered into an MOU
with Shri Pandharinath Nere on 2.8.2007 and
has agreed to unconditionally withdraw the
Contempt Petition No.67 of 2007. Thereafter,
said Shri Jilani Akbar Kokani has received
various amounts from Shri Pandharinath Nere
and has executed various receipts dated
24.2077, 28.9.2007 and 8.10.2007. Copies of
the said MOU dated 2.8.2007 and receipts are
annexed hereto and marked as Exhibit-A colly.
I say that the copies of aforesaid documents
were given by Shri Pandharinath Nere to me.

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14.There is a counter Affidavit filed in reply to
this Affidavit by petitioner no.4 on 26.11.2007.
There is a further affidavit which is tendered on
6.12.2007.

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15.I have perused the petition and the annexures
thereto including the orders passed by this court
and the Hon’ble Supreme Court. I have also perused

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the affidavits filed in the court. Mr.Mulla places
reliance upon a decision of the Hon’ble Supreme
Court reported in AIR 1990 S.C. page 464 Noorali
Babul Thanewala vs. K.M.M.Shetty in support of his
submission that breach of an Undertaking given to a
court tantamounts to a breach of injunction and
therefore it would involve same consequences on the
persons violating that undertaking as would their
disobedience to an order of injunction. In other
words, according to him the same is civil contempt.
He has invited my attention to other judgments in
the field on the point that this would constitute a
civil contempt.

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16.Upon repeatedly questioning Mr.Mulla as to how
mere execution of a General Power of Attorney
amounts to transfer or creating third party interest
in the property/land being Survey No. 806/2-B and
806/4, beyond stating that it was an attempt to do
so, Mr.Mulla could not point out anything. It is
true that the power of attorney refers to these
lands. However, it is stated that these lands
belong to the members. A proper perusal of this

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would show that the power of attorney refers to the
disputes between the Kazi family and their desire to
put an end to the same amicably. All such disputes
having been decided to be resolved amicably,
appropriate documents and agreements have been
exchanged. However, it is not possible for the
family members to remain present in the office of
the Sub-Registrar on every occasion. In such
circumstances having decided to appoint attorney and
that is how the General power of Attorney in favour
of respondent no.4 proceeds. To my mind, respondent
no.1 to 3 have not parted with possession or created
any third party interest in respect of the lands in
favour of respondent no.4 by executing the power of
attorney. The very statements in the Contempt
Petition proceed on the basis that the respondents
purported to transfer part of the land. The
allegation is not that the respondents have parted
with possession or created any third party interest
in respect of the lands in question. The
petitioners are fully aware that there is no attempt
to alienate or part with the lands nor their
petition proceeded on the basis that the lands have

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been parted with or third party rights created in
respect thereof. A perusal of the para-8 and 9 of
the petition, makes it abundantly clear that the
petitioners are aware of the background in which the
General Power of Attorney has been executed.

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17.I am unable to accept the argument of Mr.Mulla
that the Undertaking given to this court has been
breached or violated. I am in agreement with
Mr.Godbole that the intentions of the petitioner
no.4 are not bonafide. Apart from the fact that the
preliminary objections also have substance, I am in
agreement with Mr.Godbole on the other aspects as
well. I am satisfied from a perusal of the Contempt
Petition that the same does not make out a case of
civil contempt. The nature of the allegations being
such, that it is not possible to conclude that
Respondent nos.1 to 3 have violated the Undertaking
or disobeyed the same in any manner. The contempt
petition is not a remedy to settle scores and
private disputes. Contempt is a matter between the
court and parties like respondent nos.1 to 3. The
petitioners have made allegations in the petition

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which read as a whole do not make out a case of
civil contempt.

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18.In such circumstances, there is no merit in
this petition and it stands accordingly dismissed.

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sd/-

Ayesha Begum Sujaiuddin and Ors. v. Kazi Rajiyuddin Jahiruddin through Legal Representative Smt. Asifa Begum Rajiyuddin and Ors.

Case brief

What is this about?

What did the court decide?

Ayesha Begum Sujaiuddin and Ors. v. Kazi Rajiyuddin Jahiruddin through Legal Representative Smt. Asifa Begum Rajiyuddin and Ors.

Case brief

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What did the court decide?

What the court decided

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