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Judgment
Arijit Banerjee, J.
(1) This contempt application has been filed for alleged violation of an order dated 27 February, 2012 passed by a Division Bench of this Court in
FMA 1253 of 2011. A Rule was issued on 18 January, 2017 and the proceeding was re-numbered as CRC No. 2 of 2017. The respondents have filed
affidavits-in-opposition and the petitioner has filed his replies thereto.
(2) The brief facts of the case are that the petitioner filed an application under Sec. 276 of the Indian Succession Act, 1925 praying for Letters of
Administration in respect of a Will executed by one Charubala Bose before the Learned District Delegate at Alipore. The said case was registered as
Act 39 Case No. 312 of 2010 and is still pending. By an order dated 17 December, 2010, the Learned District Delegate at Alipore adjudged the same
to be a contentious cause. Soon thereafter the petitioner filed an application under Sec. 276 of the Indian Succession Act before the Learned District
Judge, Alipore which was registered as Act 39 Case No. 378 of 2010 (L.A.)
(3) The petitioner also moved an application under O. 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 read with Sec. 268 of the Indian
Succession Act, 1925 before the Learned Court below praying for an order of injunction to restrain the respondents from developing the schedule
property which was the subject matter of the application for Letters of Administration. By an order dated 7 March, 2011 the Learned Court below
directed maintenance of status quo in respect of the said property. Being aggrieved, the respondents preferred an appeal before this Court being
FMAT 562 of 2011 and filed an application for stay being CAN 4985 of 2011. By an order dated 7 June, 2011 a Division Bench of this court set aside
the Learned Trial Court’s order dated 7 March, 2011 and sent the matter back to the Learned Court below for disposal of the injunction
application within 31 July, 2011. The Division Bench also directed that status quo be maintained in respect of the said property.
(4) The injunction application was disposed of by the learned Court below by an order dated 19 July, 2011 by partly allowing the same but not
restraining the construction that was being made on the schedule property. Being aggrieved, the petitioner challenged the said order before a Division
Bench of this Court by filing FMA 1253 of 2011. An interim order of status quo was passed in the appeal. The appeal was finally disposed of by an
order dated 27 February, 2012. The Division Bench modified the order of status quo, granting liberty to the respondent nos. 1 to 3 to carry on with the
construction work on the schedule property without claiming any special equity therefor. It was further directed that ‘the parties must not create
any third party interest without leave being obtained from this Court upon notice to the other side’. It is wilful violation of this order that is alleged
in this contempt application.
(5) It is the short case of the petitioner that third party interest has been created by the respondent nos. 1 to 3 in respect of the said property in breach
of the aforesaid order dated 27 February, 2012 by execution of the following documents:-
(i) a deed of conveyance dated 6 September, 2013 executed by the respondent no. 1 in favour of the respondent nos. 4 and 5 in respect of a portion of
the said property.
(ii) a deed of conveyance dated 22 November, 2013 executed by the respondent no. 1 through the pen of her constituted attorney being the respondent
no. 3 in favour of the respondent nos. 4 and 5 in respect of some other portions of the said property. (iii) a deed of conveyance dated 23 July, 2013
executed by the respondent no. 1 in favour of the respondent no. 5 in respect of the some portions of the said property. (iv) a deed of gift dated 10
July, 2013 executed by the respondent no. 1 jointly in favour of the respondent nos. 2 and 6 in respect of a portion of the said property.
(6) Affidavits have been filed by the respondent nos. 1, 2, 3 and 6. Respondent nos. 4 and 5 have not filed affidavits nor did anybody represent them at
the hearing of the Rule.
(7) Let us take the case of each respondent one by one as made out in their affidavits.
Re: Respondent no. 1:-
(8) An affidavit has been filed on behalf of the respondent no. 1 which is affirmed by the respondent no. 3 describing herself as daughter and
constituted attorney of the respondent no. 1. The case made out is that it became impossible for the respondent no. 1 to maintain the subject property
due to paucity of funds and finding no other alternative she proposed to develop the subject property. Accordingly, she entered into a joint venture
development agreement with one Samar Purkayastha for developing the property. The respondent no. 1 is 90 years old and is suffering from age
related memory loss and cognitive dysfunction and most of the times she has no recollection of the things of the past. She was completely unware of
the order dated 27 February, 2012 passed by this Court and the gift deed and the deeds of conveyance were executed by her without knowledge of
the said order. She has studied till class VIII and is unaware of the intricacies of law. There was no deliberate violation of the order of this Court on
her part.
(9) We are unable to accept the explanation given on behalf of the respondent no. 1. No acceptable justification has been provided for executing the
deeds of conveyance in favour of the respondent nos. 4 and 5 who are third parties or for executing the gift deed jointly in favour of the respondent
nos. 2 and 6. The respondent no. 6 is also a third party and not a party to the proceedings in which the order dated 27 February, 2012 was passed. The
respondent no. 1 was all throughout represented in the proceedings before this Court. She also signed the Vakalatnama in favour of a learned
Advocate to represent her in the appeal in which the said order was passed. Being of advanced age or suffering from age related ailments cannot be
a justification or explanation for acting in violation of the order of this Court. In fact, in course of hearing, learned Counsel for the respondent no. 1 in
his usual fairness did not try to justify the action of the respondent no. 1 but only submitted that the Court should consider her case sympathetically
because of her old age. Old age or ignorance of law or failing memory cannot be a defence in a contempt proceeding and the same cannot be any
justification for violation of Court’s order. Sympathy for an elderly person who may be suffering from various maladies cannot be the ground for
condoning wilful violation of court’s order. The solemnity and sanctity of an order passed by a Court of competent jurisdiction must be upheld and
preserved at all costs as otherwise the dignity of the Courts will be compromised and the Rule of Law will be undermined to the detriment of the
judicial process.
(10) In Anil Ratan Sarkar-vs.-Hirak Ghosh, (2002) 4 SCC 21, the Apex Court observed 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 to or breach of such order would amount to contempt of Court. There can be no laxity in
such a situation as otherwise the Court orders would become the subject of mockery. In Kapildeo Prasad Sah-vs.-State of Bihar, (1999) 7 SCC 569.
It was held that for holding a person guilty of contempt, it must be established that there was wilful violation of the judgment or order of Court.
However, it was indicated that even negligence and carelessness may amount to contempt.
(11) For the reasons aforestated we hold the respondent no. 1 guilty of contempt of Court since we are of the view that the facts and circumstances
of the case clearly demonstrate that she has wilfully violated the order dated 27 February, 2012 passed by this Court by creating third party interest in
respect of the subject property.
(12) Under Sec. 12 of the Contempt of Courts Act, 1971, a contempt of Court may be punished with simple imprisonment for a term which may
extend to six months or with fine which may extend to Rs. 2000/- or with both. However, the proviso to the said section is to the effect that the
accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. The Explanation to
the said section provides that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
In paragraph 3(a) of the affidavit of the respondent no. 1 there is a statement to the effect that ‘I tender my unqualified apology on behalf of the
contemnor no. 1 in the event there has been any unintentional disobedience of any order passed by this Hon’ble Court’. However, in the
following paragraphs of the affidavit an attempt has been made to justify the impugned action of the respondent no. 1 on the grounds which are not
acceptable to us.
(13) In so far as tendering of apology is concerned, it was observed in Patel Rajnikant Dhulabhai-vs.-Patel Chandrakant Dhulabhai, (2008) 14 SCC
561, that an apology is neither a weapon of defence to purge the guilty of their offence, nor it is intended to operate as a universal panacea; it is
intended to be evidence of real contriteness. In L. D Jaikwal-vs.-State of UP, (1984) 3 SCC 405, the Apex Court observed, inter alia, as follows:-
“……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 slapper poorer. Nor does the cheek which has 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.†The Court in that case rejected the apology and stated, “Apology is an
act of contrition. Unless apology is offered at the 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.†(13) We are not satisfied that any bona fide apology has been tendered. We are of the opinion that some
punishment should be imposed on the respondent no. 1. We shall pronounce such punishment on 7 June, 2018 when this matter will be listed again.
Ordinarily, we would have directed the respondent no. 1 to be present in Court on that day. However, in view of the advanced age of the respondent
no. 1, we dispense with her personal appearance on the next date. It will be sufficient if she is represented by her learned Advocate.
Re: Respondent no. 2:-
(14) The case of the respondent no. 2 in the affidavit filed by her is that she did not have ‘direct knowledge’ of the order dated 27 February,
2012 passed by this Court. She has been suffering from cancer for a prolonged period and could not keep track of the legal proceedings that took
place before the Learned District Judge at Alipore or before this Court. She has not created any third party interest in respect of the subject property.
She has only received by way of gift jointly with her daughter (respondent no. 6), first floor of the said property and one garage space. She cannot be
held guilty for contempt of Court. She has not deliberately violated this Court’s order dated 27 February, 2012. However, in case it appears to this
Court that there has been violation of the said order, she tenders unconditional apology without prejudice to the stand taken by her in the affidavit.
(15) The respondent no. 2 has not created any third party interest in respect of the subject property. However, the respondent no. 2 is a beneficiary of
the deed of gift dated 10 July, 2013 executed by the respondent no. 1 jointly in favour of herself and the respondent no. 6. No doubt, she was aware of
the order dated 27 February, 2012. She has been a party to the proceedings all throughout and has participated therein through her learned Advocate.
We have no doubt in our mind that the deed of gift has been executed with her full concurrence and connivance and active participation. It is settled
law that a person who aids and abets wilful violation of an order of Court is also guilty of contempt of Court. It is trite law that even a nonparty to an
action in which an order has been passed, can be committed for contempt if he with knowledge of the order, aids and abets the defendant/respondent
in the action against whom the order has been passed, to break the order. Seaward-vs.Paterson, 1897 (1) CH 545, is the parent case wherein the
English Court of Appeal held that if a person who knows that an injunction has been granted aids and abets in committing a breach of it, the Court has
jurisdiction to commit him for contempt, although he is not a defendant in the action and is not a person against whom the injunction has been granted.
This was also the view of the Privy Council in S. N. Bannerjee and Anr.-vs.-Kuchwar Lime & Stone Co. Ltd, AIR 1938 PC 295. In Attorney
General-vs.-Times Newspapers Ltd., 1991 (2) ALL ER 398, the House of Lords held that a person who knowingly impeded or interfered with the
administration of justice by the Court in an action between two other parties was guilty of contempt of Court notwithstanding that he was neither
named in any order of the Court nor had assisted a person against whom an order was made to breach it. The decision of the Privy Council in S.N.
Bannerjee’s (supra) case was quoted with approval by our Supreme Court in Parents Association of Students-vs.-M.A. Khan, (2009) 2 SCC 641.
In Vidya Charan Sulka-vs.-Tamil Nadu Olympic Association, AIR 1991 MAD 323, a Full Bench of the Madras High Court summed up the Indian law
in this regard in these words:-
“We can see thus clearly that the Courts in India invariably accepted the law applied in English and found (1) a party to the suit if he had notice or
knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the order
of injunction guilty of civil contempt and otherwise found a third party guilty of criminal contempt if he has been found knowingly obstructing
implementation of its order or direction.†In Gopal Chandra Biswas-vs.-State of West Bengal, 77 CWN 642, it was held that a person would be liable
for contempt even if the injunction does not in terms prohibit any action or impose any obligation upon him, if it is established that the impugned action
renders ineffective or frustrates an order passed by a Court. On facts the contempt petition was dismissed because of disputed questions of fact. In
R. Narapa Reddy-vs.-Jagarlamudi Chandramouli, AIR 1967 AP 219, the Andhra Pradesh High Court held that the Court has jurisdiction to commit for
contempt a person not included in the injunction and/or not party to the action who knowing of the injunction aids and abets the defendant in
committing a breach of it.
(16) Although, the respondent no. 2 was a party in the appeal wherein the said order was passed, the respondent no. 6 was not a party. In other
words, the respondent no. 6 was a ‘third party’. The said order directed the parties not to create any third party interest without leave of this
Court. Such third party interest has been created by execution of the deed of gift. We have no doubt in our mind that the respondent no. 2 had an
active role to play in execution of the said deed of gift. She is a party to the gift deed which has been executed by the respondent no. 1 in violation of
this Court’s order of which she had full knowledge. She has aided and abetted wilful violation of the order dated 27 February, 2012 by the
respondent no. 1. Although the respondent no. 2 has attempted to invoke the sympathy of this Court by claiming to be a patient of carcinoma, it is
significant that she could attend the office of the Addl. District Sub-Registrar to have the deed of gift registered in her favour jointly with her daughter.
We are not satisfied with the explanation offered by the respondent no. 2 nor are we satisfied that a bona fide apology has been tendered by her. We
see no reason to treat her case leniently or sympathetically.
(17) We are of the view that the respondent no. 2 is also guilty of contempt of Court and therefore, some punishment should be imposed on the
respondent no. 2. We direct the respondent no. 2 to be present in Court on 7 June, 2018, when this Court will pronounce the punishment to be imposed
on her.
Re: Respondent no. 3:-
(18) The case of the respondent no. 3 as made out in her affidavit is that due to matrimonial disputes she resides with her mother from 2002. She has
no independent source of income and she is solely dependent on her mother being the respondent no. 1. To support her financially the respondent no. 1
entered into a development agreement for developing the subject property. She was not aware of the order dated 27 February, 2012. She has not
violated any Court order. In any event, she tenders her unqualified apology.
(19) The ignorance of the order dated 27 February, 2012 pleaded by the respondent no. 3 is not credible. She participated through her learned
Advocate in the appeal in which the said order was passed. It is not her case that she is an illiterate lady or suffering from any kind of disability. She
put her signature as attesting witness on the sale deeds dated July 24, 2013, September 9, 2013 and the gift deed dated July 10, 2013. She also signed
the sale deed dated December 18, 2013 as the constituted attorney of the respondent no. 1. She was fully aware of the court proceeding as would
appear from her own affidavit.
(20) The respondent no. 3 has not only actively and wilfully violated the order dated 27 February, 2012 by executing the sale deed dated December 18,
2013 as the constituted attorney of the respondent no. 1 in favour of the respondent nos. 4 and 5 but has also aided and abetted wilful violation of the
said order by putting her signature as attesting witness on the other two sale deeds and the gift deed referred to hereinbefore.
(21) No acceptable explanation or justification has been advanced by the respondent no. 3 which would persuade us to discharge the Rule and
exonerate her. From the purport of her affidavit it is clear that she is a major beneficiary of the development of the subject property and sale of
portions thereof to third parties. The facts and circumstances of the case strongly indicate that she has engineered the entire thing by prevailing upon
her elderly mother. It may be that the respondent no. 3 was in need of money to maintain herself or for the maintenance of the respondent no. 1 but
that cannot be any justification for acting in wilful violation of a Court order. An order passed by a court of competent jurisdiction must be obeyed
unless the same is set aside by a higher forum, irrespective of the fact that the order may operate harshly against a party bound by the order. We are
of the considered view that the respondent no. 3 has acted in wilful disobedience to the order dated 27 February, 2012 passed by this Court.
(22) In Patel Rajnikant Dhulabhai-vs.-Patel Chandrakant Dhulabhai, (supra) the Apex Court held 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 the orders passed by a Court, it is required to take a strict view under the Contempt of Courts Act, it should not hesitate in
wielding the potent weapon of contempt.
(23) We hold the respondent no. 3 guilty of contempt of Court and therefore, some punishment should be imposed on the respondent no. 3. The
respondent no. 3 is directed to be present in Court on 7 June, 2018, when this Court will pronounce the punishment to be imposed on her.
Re: Respondent nos. 4 and 5:-
(24) No case has been made out by the petitioner that the respondent nos. 4 and 5 in whose favour deeds of conveyance in respect of portions of the
subject property were executed, were aware of this Court’s order dated 27 February, 2012. Hence, it cannot be said that the said respondents in
any manner aided and abetted wilful violation of the said order of this Court. The Rule is discharged as against the respondent nos. 4 and 5 and the
contempt proceedings are dropped against the said respondents.
Re: Respondent no. 6:-
(25) The respondent no. 6 is not a party to the proceedings before the learned District Judge, Alipore nor was a party to FMA 1253 of 2011 in which
this Court passed the order dated 27 February, 2012. Her stand in the affidavit is that she was never aware of the order dated 27 February, 2012.
Although this stand is hard to believe since her mother being the respondent no. 2 and a joint donee under the deed of gift dated 10 July, 2013 has been
a party to all the Court proceedings including FMA 1253 of 2011 and was aware of the said order as we have held hereinabove, there is no material
before us wherefrom we can conclude beyond reasonable doubt that she had knowledge of the said order. Knowledge of her mother cannot in law be
imputed to her. A contempt proceeding is quasi criminal in nature and unless the Court is satisfied that the alleged contemnor definitely had knowledge
of the order violation whereof is alleged and acted in wilful disobedience to such order with such knowledge, the alleged contemnor cannot be
committed for contempt of Court. We are unable to form a definite opinion that the respondent no. 6 was aware of the order dated 27 February, 2012
and with such knowledge aided and abetted the violation of the said order by participating in the execution and registration of the deed of gift dated 10
July, 2013.
(26) Accordingly, we give the benefit of doubt to the respondent no. 6 and discharge the Rule against her. The contempt proceeding is dropped against
the respondent no. 6.
(27) Before concluding we would like to observe that a transaction undertaken in violation of Court’s order does not have any legal sanctity. In
Vidur Impex and Traders Private Limited & Ors.-vs.-Tosh Apartments Private Limited & Ors., (2012) 8 SCC 384, the Apex Court found that the
respondent no. 2 had executed agreements for sale and sale deeds in favour of the appellants in violation of an injunction order granted by the High
Court. The Apex Court observed that no valid title or interest had been acquired by the appellants in the suit property as they were claiming right on
the basis of transactions made in defiance of the restraint order passed by the High Court.
In DDA-vs.-Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, the Apex Court held that the legal consequences of what has been done in breach
of or in violation of an order of stay or injunction can be undone and the parties could be put back to the same position as they stood immediately prior
to such order of stay or injunction. This was followed by the Apex Court in Ghanshyam Sarda-vs.-Sashikant Jha, Director, M/s. J. K. Jute Mills
Company Limited and Ors. (2017) 1 SCC 599. We do not propose to pass any order in this proceeding nullifying the transactions made amongst the
parties in violation of the order of injunction passed in the appeal, however, with the rider that it would be open to any aggrieved party to assail the sale
deeds and the gift deed executed in favour of the respondent nos. 2 and 6 before the appropriate forum in an appropriately constituted action.
(27) List the matter under the Heading “Contempt Application†on 7 June, 2018 at 10:30 a.m.
(28) Urgent certified photocopy of this judgment and order if applied for, be givento the parties upon compliance of necessary formalities.