Disposed

Chintaman Purushottam Sahasrabudhe (Since Deceased through LHRs) v. Manju Vasant Kenia and Anr.

Bombay HC6 Jul 2012CP/62/2012

Case brief

AI extract

What is this about?

This Court disposed of two contempt petitions. The notice in CP No.245 of 2001 was discharged as the alleged breach was cured and apologies were tendered. CP No.62 of 2012 was rejected as mis-conceived, and a related civil application was also rejected.

What did the court decide?

Contempt notice in CP No.245 of 2001 discharged; CP No.62 of 2012 rejected; Civil Application No.9 of 2012 rejected; No order as to costs.

Chintaman Purushottam Sahasrabudhe (Since Deceased through… — Contempt of Court | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION (SUO MOTU) CONTEMPT PETITION NO.245 OF 2001

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The Additional Registrar of Bombay City Civil Court .. Petitioner Vs. Chintaman P. Sahasrabudhe & Ors. ..Respondents/ Contemnors

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WITH

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CONTEMPT PETITION NO.62 OF 2012 IN

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(SUO MOTU) CONTEMPT PETITION NO.245 OF 2001

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Chintaman P. Sahasrabudhe & Ors. .. Petitioner Vs. Manju Vasant Kenia & Anr. ..Respondent/ Contemnors

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Mr. Sandeep Parekh a/w. Mayur Agarwal i/b. Bilawala & Co. for the original Plaintiffs and for Respondents in C.P. No.62 of 2012. Mr. Y.S. Bhate for the Petitioners in C.P. No.62 of 2012 and for Respondents in C.P. No.245 of 2001.

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ORAL JUDGMENT :

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Heard the learned Counsel for the Plaintiffs in S.C.Suit No.1327 of 1998 in City Civil Court and the learned Counsel appearing for 2^nd and 3^rd Contemnors in Contempt Petition No.245 of 2001. The learned Counsel for the 2^nd and 3^rd Contemnors states that the first Contemnor

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has died. The said 2^nd and 3^rd Contemnors are the second and third Defendants in the aforesaid suit. They are the Petitioners in Contempt Petition No.62 of 2012. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the suit.

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The learned Judge of the City Civil Court, Mumbai, by order dated 26^th February 2001 has made a Reference to this Court on recording a prima facie finding that the Defendants have jointly and severally committed breach/ disobeyed the order dated 27^th March 2007 by not reconnecting drainage line of Flat Nos.3 and by preventing the Plaintiffs (before the City Civil Court) from reconnecting the drainage line in terms of prayer clauses (a) and (b) of the Notice of Motion No.1247 of 1997 taken out by the Plaintiffs.

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In this regard, it will be necessary to make a reference to the order dated 27^th March 2007 passed on the Notice of Motion taken out by the Plaintiffs. The Notice of Motion was granted in terms of prayer clauses (a)(iv) and a(v). Prayer clause a(iv) and a(v) read as under:

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“ (iv) that the defendants be ordered and directed by order of injunction to reconnect the Plaintiffs water connection and drainage connection of mori in respect of the said flat bearing No.3 in the building known as “Trimurthi” situate at Ganeshbaug Kurla (West), Bopmbay - 400 070.

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(v) or in the alternative the Plaintiffs be permitted to reconnect the water connection and drainage connection of the mori in respect of the said flat bearing No.3 in the building.......”

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An undertaking was filed in this Court on 22^nd October 2001 by the Defendants. In paragraph No.2 of the undertaking, the Defendants

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stated that they had no intention of flouting the order of the City Civil Court dated 27^th March 1997. In fact, they tendered unconditional apology to the Court as they were under impression that the Plaintiffs were required to obtain permission from the Municipal Corporation before reconnecting the water and drainage connection of flat No.3. They gave an undertaking not to obstruct the Plaintiffs from reconnecting the water and drainage connection of Flat No.3.

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The Contempt Petition was heard by this Court on 5^th January 2012. On 6^th January 2012, a letter was addressed by the Attorneys of the Plaintiffs to the Advocate for the Defendants stating that in view of the undertaking which is referred above, an oral direction was given by this Court to the Plaintiffs to proceed with the work of drainage connection. It must be noted here that on 13^th January 2012, when it was brought to the notice of this Court that though there was no such order, either oral or in writing, passed by this Court, the said incorrect statement was made in the letter, the learned Counsel for the original Plaintiffs tendered apology for writing such letter and the said letter was unconditionally withdrawn. This Court specifically observed by an order passed on that day that the matter should be treated as closed. Thereafter on 27^th January 2012, when the Contempt Petition came up before this Court, the second Plaintiff made a statement that the Plaintiffs have already connected the drainage line with the help of a Plumber. However, the learned Counsel for the Defendants disputed the said statement.

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Today, there is no dispute before this Court that necessary reconnection of drainage line has already been made and the Plaintiffs have no subsisting grievance about it. Perusal of the order of which breach is alleged shows that the first part of the order was a mandatory injunction directing the Contemnors to connect the water and drainage connection in respect of Flat No.3. In second part, a permission was granted to the Plaintiffs to reconnect the water and drainage connection of bath-room of flat No.3. As of today, it is not in dispute that now reconnection has been made in terms of prayer clause a(v).

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The order of which breach is complained of in Contempt Petition No.245 of 2001 was a self operative order, in the sense, that in the event of the Defendants failing to comply with the mandatory injunction, a permission was granted to the Plaintiffs to carry out necessary work. As pointed out earlier, an undertaking dated 22^nd October 2001 has been tendered by the Defendants in which they have tendered an unconditional apology.

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Therefore, at this stage, this is not a case where any penal action deserves to be taken against the Defendants. Hence, notice of contempt in Contempt Petition No.245 of 2001 deserves to be discharged.

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The Contemnors (Defendants) in Contempt Petition No.245 of 2001 have taken out Contempt Petition No.62 of 2012. The basic contention raised in the said Contempt Petition is that though there was no order passed either orally or in writing by this Court permitting the Plaintiffs to carry out the work of reconnection, under the false pretext

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of oral directions issued by this Court on 5^th January 2012 the work was carried out. The learned Counsel for the Defendants in support of this contempt petition submits that the Petitioners have alleged commission of civil contempt. He also fairly states that this is a case where the alleged Contemnors/Plaintiffs have neither committed breach of any order passed by any Court nor they have committed breach of any undertaking. His submission that dignity of Court is involved and therefore, this Court cannot shut its eyes to the contemptuous conduct of the original Plaintiffs. He has placed reliance on the decision of the Apex Court in the case of Ram Preeti Yadav Vs. Mahendra Pratap Yadav & Ors. AIR 2007 SC 3156 in support of his contention that though there is no breach of any order passed by this Court or Trial Court and though there is not breach of any undertaking, still the Court can take action for civil contempt.

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I have already discussed in earlier part of this order that at one stage, the Attorneys of the Plaintiffs wrote a letter to the Advocate for the Defendants stating that there was an oral direction issued by this Court on 5^th January 2012. On the next date, the said letter was unconditionally withdrawn and an unconditional apology was tendered. This Court by accepting the apology closed the matter. The fact remains that the order of the City Civil Court of which breach is alleged in the first Contempt Petition permits the original Plaintiffs to do the work of reconnection. As the Defendants did not comply with the temporary mandatory injunction, the Plaintiffs have carried out the work of reconnection. As noted earlier, there was an undertaking filed by the Defendants in the first Contempt Petition which records that they had no

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objection if the Plaintiffs carried out the work of reconnection.

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Apology was already tendered by the Plaintiffs which was accepted by this Court. The learned Counsel for the Petitioners submitted that this Court has directed the Petitioners to take out appropriate proceedings.

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It must be stated here that, in fact, the Defendants have not complied with the temporary mandatory injunction granted by the City Civil Court. However, this Court has already taken a lenient view in the first Contempt Petition and has discharged the notice issued to the Defendants.

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Now coming to the decision of the Apex Court in the case of Ram Preeti Yadav (Supra) , perusal of the entire judgment shows that the Apex Court has not laid down that though there is no breach of any order or though there is no breach of any undertaking, still an action for Civil Contempt can be taken. On the contrary, in paragraph No.17 of the said judgment, the Apex court has observed that, the said Court has constitutional duty in terms of Article 129 as also Article 142 of the Constitution of India. Thus, the Apex Court exercised its power under the Constitution. Hence, in the present case, no case is made out to initiate any action for civil contempt.

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As far as Civil Application No.9 of 2012 is concerned, the prayer is of restoration of the work carried out by the Plaintiffs of restoration of water and drainage connection. The Defendants are ill advised to take

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out such an application in as much as there is an order of injunction operating against the Defendants under which they are obliged to reconnect the water and drainage connection. Therefore, the said application is mis-conceived and deserves to be rejected. Hence, I pass the following order.

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ORDER

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i) The Contempt notice issued in Contempt Petition No.245 of 2001 stands discharged. Petition is accordingly disposed of.

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ii) There will be no order as to costs.

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iii) Contempt Petition No.62 of 2012 is rejected. iv) Civil Application No.9 of 2012 is rejected.

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JUDGE

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Chintaman Purushottam Sahasrabudhe (Since Deceased through LHRs) v. Manju Vasant Kenia and Anr.

Case brief

What is this about?

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Chintaman Purushottam Sahasrabudhe (Since Deceased through LHRs) v. Manju Vasant Kenia and Anr.

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