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Judgment
Syed Bashir-ud-din, J.—Sub Judge (Judge, Small Cause Court) Srinagar on the application of Respondent No. 1, plaintiff before the Court
below, issued notice to respondents 1 and 2 and to Secretary, Municipality Srinagar, for appearance in person to show cause why they may not
be punished for contempt and in the meanwhile, directed them to comply with the order of temporary injunction dated 29-6-1996 as extended on
26-2-1997. Besides, the respondents were also required not to go ahead with this move to cancel the allotment to plaintiff of suit shops and their
re-allotment pending the suit before the trial Court. These orders have been challenged by the Administrator and Executive Officer of the Srinagar
Municipality.
The facts and circumstances in brief, necessary for our present purposes, are :--
That the defendant-Executive Officer, of the Srinagar Municipality, published a notice for allotment of shops on auction, constructed under
construction in Municipal Complexes at Budshah Chowk, and Karan Nagar. After negotiations, plaintiff-respondent No. 1 M/s. KAIS Group,
succeeded ingetting allotment of shops Nos. 1,2, 3 and 4 at Karan Nagar and Shop Nos. 31, 32 and 34 at Lal Chowk on agreed terms and
conditions, inter alia on term and condition that the payment shall be made in four instalments. The first instalment of 25% was paid as agreed. The
second instalment of 25% of bid money was to be paid at the start of the work and the third instalment of 25% at the time of issuance of allotment
order and the last instalment of 25% at the time of handing over of the shops. The plaintiffs issued two cheques dated 5-3-1996 and 31-11-1996,
as asked by the defendants pursuant to the agreement, to be drawn at the Residence Road Branch of J & KBank, at Srinagar. The cheques
bounced, as per plaintiffs, for not being sent for clearance by the defendants in time and as per the defendants, the cheques were dishonoured.
Even, on the day of impugned order, this 25%, payment of 2nd instalment has not been paid. Regarding nonpayment of other two instalments there
is no dispute. The plaintiffs smelling that the allotment of shops may not be cancelled for nonpayments, filed the suit for declaration and perpetual
injunction before the Court below. Coextensive with the plaint, an application for ad-interim injunction was filed on 25-6-1996. The Court below
vide order dated 29-6-1996, after finding prima facie case being made out by plaintiff restrained the defendants from invoking the penal clause
12/18 of the Tender Notice and directed the parties to maintain status quo till 8-7-1996, the next date when the matter was to come up before the
trial Court. After 8-7-1996, the order lapsed as it was not revived till 26-2-1997, when the interim matter was taken on board by Court and the
above direction of 26-2-1997 which otherwise had become extinct came to be extended till objections were filed by the other party and
considered by the Court, below. Even after filing the written statement and taking objections to this order, the Court below did not find time to
consider the objections and pass final order in the matter of ad-interim injunction in this case.
In the meanwhile, KIAS Group and its proprietors made an application under O. -39, Rule 2(a) of CPC read with Section 94 and Section 151,
CPC, seeking punishment of one Shri G.M. Kaloo, the then Secretary, Municipality Srinagar for having violated the Court order dated 26-2-
1997, in so far as the said Secretary after invoking the penal clause of the tender notice cancelled the bid. The trial Court issued notice to the said
Secretary to appear in person before the Court below to show cause why he should not be : punished for contempt of Court and in the mean-
while, the order of cancellation ordered by him was put on hold by issuance of restraint order.
Then again on the application of said KAIS Group and its Proprietors alleging contempt by Executive Officer, Srinagar Municipal Committee
and Administrator, Srinagar Municipal Committee, Srinagar, the trial Court on 16-11-1997 issued yet another show cause notice to one Mushtaq
Ahmad Executive Officer and Ghulam Rasool Ganai, Administrator Srinagar Municipality, summoning both to appear before the Court and to
show cause against wilful disobedi-ence of the Court order dated 16-2-1997, and over-again in the meantime, restrained both from auctioning the
shops.
The two impugned orders are challenged on number of grounds. In the factual background, as narrated above, the respondent is stated to have
violated the terms and conditions of the agreement by failing to deposit pay the second instalment of 25% of the amount, and the respondents have
in fact issued two cheques, in all for Rs. 5,70.500/-, which were dishonoured by the Bank on 16-4-1996. The petitioner-plaintiff thereafter never
paid the amount till date either in cash or in cheque. The respondents request to the Municipality, to allow him/them to deposit this amount in easy
instalment was not accepted by the Municipality and this aspect was never considered by the trial Court, while issuing the temporary injunction
order. The petitioners-officials of the Srinagar Municipality, have filed written statement and as also filed preliminary objections to the
maintainability of the suit in which, it was submitted before the trial Court that in absence of notice u/s 57 of the Municipal Act, the suit itself is not
maintainable, that the suit is beyond pecuniary jurisdiction of the trial Court, that the case is not maintainable for lack of cause of action and that the
suit is wholly misconceived. Without deciding these questions, the Court not only continued the restraint order, but did not take required steps to
hear and pass orders thereto. Instead the office bearers of Srinagar Municipality have been summoned in contempt. The whole attempt of the
respondents is to pressurise the Municipality and hook it to the contempt proceedings, so that the Municipality is got round to settle the matter on
plaintiffs terms and conditions. The whole course of justice has been thwarted and the Srinagar Municipality has been made to suffer huge losses
by putting blanket restraint on allotment of the shops. In case the plaintiffs are still willing and ready to pay bid money as per the agreed terms and
conditions, the Municipality is still ready to give the shops to the petitioner, but the petitioner has not even opted for this course.
.6. The plaintiff/petitioners moved an application for temporary injunction, seeking relief to restrain the respondents-Executive Officer of the
Municipality from resorting to the penal clause of the agreement of cancelling the allotment of the shops. The trial Court on consideration of matter,
restrained defendants till 8-10-1996, (the next date fixed) from invoking the penal clause of the tender notice. Though the order was subject to
objections, yet the order was made to lapse as it was not to remain in force thereafter. On the another application moved by the plaintiffs, seeking
extension of this order, the Court on 26-2-1997 extended the operation of the said order of 29-6-1996 till objections were filed and considered.
The plaintiff/petitioner again moved an application seeking punishment of Shri G. M. Kalu, Secretary, Municipality Srinagar, on allegation that
despite the orders of the trial Court dated 26-6-1996 and later on extended by order dated 26-2-1997, he has invoked the penal clause of the
tender notice, as he had passed order on 4-8-1997, cancelling the bid of the applicants. The Court below recorded a finding of prima facie case
against the said Secretary, directed him to appear in person before that Court and to show cause why he should not be punished for contempt of
Court and further restrained the secretary in cancelling the allotment of the shops of the plaintiffs. The plaintiffs again moved the Court and sought
action in contempt against Mushtaq Ahmad and Ghulam Rasool Gamai, Executive Officer and Administrator Srinagar Municipality, for their act{s)
of fixing the date of auction of the said shops as 12-11-1997. The Court issued notice and restrained both these non-applicants from putting the
shops on auction on the said date.Theseordersdated 16-8-97and 10-11-1997 have been assailed in this revision on number of grounds. It is
submitted by the counsel for the revision petitioner/defendant (Srinagar Municipality) that the orders of temporary injunction are non est in so far as
the Court below had no jurisdiction to try. the suit as no notice u/s 57 of the Municipal Act has been served on Municipality and that the Court
below had no pecuniary jurisdiction to try the case, besides the suit is misconceived and non-maintainable.
The counsel has further submitted, that the trial Court instead of deciding the ad-interim injunction, the matter, which has been kept subject to
objections and in which objections have been filed (and as also the written statement in the main suit) initiated contempt proceedings against the
petitioners for alleged violation of Court orders, though the petitioners office-bearers of the Municipality have been acting bona fidely and in good
faith, so-much-so, that Municipality is even at this stage prepared to handover the shops to respondents in case all the outstanding covenanted
liability is cleared and (he premiums in the prescribed instalments are paid. The plaintiff has not and is not willing to pay the amount and yet has filed
the suit only to tie down the Municipality and cause it a great financial loss. In fact, the Municipality has been booked and hooked to these
proceedings with sole object to pressurise the Municipality and bring it round on terms and conditions of plaintiffs liking. In the process, the course
of justice has been thwarted and throttled.
It is seen that the plaintiffs have filed suit against the Executive Officer and Administrator Srinagar Municipality. ""Srinagar Municipality"", as such,
has not been arrayed as defendant. The order dated 16-8-1997 requiring one Shri G. M. Kaloo, Secretary, Municipality Srinagar to appear and
show cause for his act of invoking the penal clause of the agreement and cancelling the bid of applicants, does not reveal that the Court below
considered the aspect of the case, that the Secretary though not a party to the suit has wilfully disobeyed the order of the Court. There is also
nothing to reveal that the order in question was within the contemplation of the said Secretary. If the secretary is not a party to the main suit or even
when temporary injunction is not issued to him, it appears unjust to foist him with the knowledge of the order and post him with knowledge of wilful
disregard of the restraint order. The order appears to be erroneous and not based on proper appreciation of facts and circumstances. The order
cannot be sustained.
The other impugned order dated 10-11-1997 requiring the Executive Officer and the Administrator to show cause in the contempt
proceedings, initiated against them, it merits to be taken note of that the applicants/plaintiffs in their application before the Court below have laid
incriminating allegations of publishing of notice in daily 'Alsaffa' regarding fixing of date for public auction of the shops allotted to the plaintiffs earlier
by the Executive Officer/non-applicant No. 2. There is no allegation whatsoever, against the Administrator, Ghulam Rasool Ganai. No overt or
covert act of omission or commission has been attributed to the Administrator, so as to put him in dock in contempt, yet the Court below has
issued a notice to the Administrator to appear before the Court and to show cause why he should not be punished in contempt, after recording that
prima facie Administrator with Executive Officer are found guilty of contempt. On scrutiny of orders seen in the context of facts and circumstances
emerging on record and for what has been stated above, there appear substance in the submissions of the counsel for the Revision Petitioner's that
the plaintiffs' whole attempt is to hook the Municipality to these contempts and other legal proceedings, with a view to bring the Municipality round
to settle the allotment of shops to the plaintiffs liking and on the plaintiffs' terms and conditions.
Another pertinent feature of the case is that when the very jurisdiction of the trial Court is questioned and the non-maintainability of the suit for
breach of statutory provisions of law is pleaded and raised, the trial Court's act of avoid-i ance and bye-passing all the objections is broading over
jurisdictional matter only to push and corner; the proceedings to the point only to be vitiated by; jurisdictional error and material irregularity.
Keeping ad-interim injunction matter pending without passing the final orders thereto and si-multaneously vigorously processing thecontempt
applications at acalling and passing orders there to, just mechanically without attempting to bring on to bear the judicial mind on the fact situation
and circumstances of the case, is unjudicious unfair and arbitrary on the part of the subordinate Court.
The suit is based on agreement and contract between the parties regarding allotment of the shops. Chapter VII of the Municipal Act, deals
with contracts and provides liabilities there under. Section 57 on its plain language expressly bars a suit against the Municipal Council or against
any officer or servant of the Municipality in respect of the acts purporting to be done in their official capacity, unless, one month's notice in writing
has been given and until this period has expired.
A bare look at the plaint would reveal, that no such notice has been given.
Section 57(a) provides, that the suit or proceedings so instituted, shall be taken up from day to day and concluded within the period of six
months, unless for reasons to be recorded it is not possible for the Court to do so. Again holding is on record thereto. Similarly, there is a bar for
temporary injunction to be granted except after notice and opportunity to show cause. In this case on going through the record and order of 29-6-
1996, the reasonable and effective opportunity does not appear to have been given, though mention is made of notice, but it appears to be farce of
a notice and nothing more than just compliance on paper with routine formal action. The subsequent order of temporary injunction of 26-2-1997,
in fact provides that by the order, the temporary injunction issued on 29-6-1996 has been extended.
All this has been mentioned to show that the orders for disobedience of which the respondents are sought to be hooked to the contempt
cannot be said to have been passed within confines of law and on terms and conditions laid down by law.
The learned counsel for plaintiff/respondents submits that the matter should be sent back to trial Court without being disturbed and defendant
petitioner left to face and answer the contempt proceedings before the trial Court and for the purpose has cited judgment dated 25-6-1998 in Civil
Rev. 26/96, as a precedent. However, I am afraid, it cannot be done. Neither the ends of justice nor the legal provisions, can approve of such
course, in the facts and circumstances of this case.
Decision of learned single bench of this Court in Civil Revn. No. 26/96 decided on 25-6-98 is not applicable to the facts and circumstances of
this case. The judgment turns on its own facts and circumstances.
His Lordship Hon'bleMr. Justice Bhawani Singh (as His Lordship then was) while speaking on behalf of the Court, in LPA No. 242/1997
titled State Forest Corporation v. M/s. Tramboo Joinery Mills Pvt.. Ltd. decided on August 29, 1997, observed:--
However, we would like to observe that where parties contest each others claim and Court is yet to decide the same, seeking the enforcement of
interim order through contempt proceedings particularly when other side is not heard against the grant of interim order by the Court, contempt
jurisdiction should not be invoked to terrorise a party to the case and compel it to implement the interim order or face penalty under the Act, since
adopting this course have serious repercussion ..............it is desirable that the Court decides the main controversy on merits before embarking
upon contempt proceedings at the instance of a party"".
For the aforesaid reasons this Revision petition is accepted. With the result that the impugned orders are set aside with direction to the trial
Court to consider the application/objections in the light of the pleadings and other available record and pass final orders in the matter of temporary
injunction within a month as far as possible and thereafter to take follow-up action in contempt if any required, in terms of applicable law and
observations made hereto. Certify decision to Court below. Send record immediately.