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Judgment
V.K. Shali, J. 1. This is an appeal filed by the Appellants against the order dated 28th March, 2005 passed by Sh. Praveen Kumar, learned Additional District Judge, Delhi dismissing the contempt application under Order 39 Rule 2A of the CPC of the Appellant against the Respondent Nos. 2 & 3.
Briefly stated the facts leading to the filing of the present appeal are that the Appellant No. 1 herein is the wife of Respondent No. 1 Sh. Pramod Jain and the Appellant No. 2 is stated to be the son of the Appellant and Respondent No. 1, from the said wedlock. On account of the matrimonial dispute between Appellant No. 1 and Respondent No. 1, the former is purported to have filed a suit for Injunction against her husband Sh. Pramod Jain praying for an injunction that she may not be dispossessed except in accordance and due process of law from the premises namely D-30, Kamla Nagar, Delhi under her occupation as well as property bearing No. A-91, Kamla Nagar, Delhi (as per order of the learned Additional District Judge, shop number was mentioned as A-9, Kamla Nagar, Delhi). It is alleged by learned Counsel for the Appellant that on 4th September, 2002, the High Court (where the suit was originally filed but latter on was transferred to the District Courts on account of enhancement of pecuniary jurisdiction of the District Courts) had passed the following order:
IA 7845/02
Learned Counsel for the plaintiff submits that Court fee shall be paid within three days. Let the needful be done within three days, as prayed.
The application stands disposed of.
Section 1370/02
Let the plaint be registered as a suit.
Issue summons to Defendant No. 1 only for 01.10.02.
A perusal of the plaint shows that there is no cause of action against Defendant No. 2. The suit against Defendant No. 2 stands rejected. Amended memo of parties be filed within one week.
IA 7844/02
Notice to Defendant No. 1 for 01.10.02.
Till then Defendant No. 1 is restrained from dispossessing the plaintiff from third floor portion (shown in dark blue in Annexure P3) of property No. D-30, Kamla Nagar, Delhi and also from selling, alienating, parting with possession or creating any third party interest in property No. D-30, Kamla Nagar, Delhi and shop No. A-9, Kamla Nagar, Delhi.
Provision of Order 39 Rule 3 CPC be complied with within three days. Dasti.
IA 7846/02
Notice to Defendant No. 1 for 01.10.02.
s/d
September 4, 2002
R.C.CHOPRA, J.
It is alleged by the Appellants that in gross violation of this order, the Appellant No. 1 was dispossessed from the property bearing No. A-9, Kamla Nagar, Delhi on 16th August, 2002. It is alleged that the said order dated 4th September, 2002 was served on 6th September, 2002 on the Respondent No. 1 but Respondent No. 1 despite having the knowledge of the aforesaid order has willfully and contumaciously disobeyed the order of the learned Additional District Judge by dispossessing the Appellant from the shop No. D-9, Kamla Nagar, Delhi by surrendering the possession of the said shop to the landlord Sh. Yogesh Chandra Gupta-Respondent No. 2 herein. It is further alleged that this was done in active connivance of SHO of the area police station who has been made as Respondent No. 3.
This necessitated filing an application for initiation of contempt proceedings under Order 39R 2A of CPC read with Section 10 to 12 of Contempt of Courts Act by the Appellant against Respondent No. 1 Sh. Pramod Jain and Respondent No. 2, landlord of the shop and the SHO. During the pendency of the aforesaid Contempt Petition, the learned Counsel for the Appellant is purported to have made a statement giving up the application having been filed under Sections 10,11,12 of the Contempt of Courts Act, 1971 and urged that the said application be delivered as an application only u/s 39 Rule 2A CPC.
Accordingly, notices were issued to all the three Respondents who chose to file their reply and the learned ADJ after hearing the learned Counsel for the parties dismissed the Contempt Petition against Respondent Nos. 2 and 3 on the ground that Respondent Nos. 2 and 3 were not the parties to the original suit and further the Respondent No. 2 has been able to place on record documents dated 16th September, 2001 which is much prior to the date of the restraint order having been passed by the learned Additional District Judge to indicate that the Respondent No. 1 who was the tenant in respect of the property bearing No. A-9, Kamla Nagar, Delhi had voluntarily surrendered the possession of the said shop to the Respondent No. 1. The Surrender Deed dated 3rd September, 2002 was also placed on record. So far as the Respondent No. 1 Sh. Pramod Jain is concerned, it was observed that his guilt would be decided only after the parties are given an opportunity to adduce their respective evidence.
Feeling aggrieved by the aforesaid order dated 28th March, 2005 passed by the learned ADJ discharging the Respondent Nos. 2 and 3, the Appellant has preferred the present appeal.
I have heard the learned Counsel Ms. Chitra Gera for the Appellant. None had appeared on behalf of Respondent Nos. 2 and 3. I have also gone through the record.
First of all it is made clear that the Appellant was not in possession of the shop at any point of time, it was the Respondent No. 1. No doubt, the entire order which was passed by the learned Additional District Judge on 28th March, 2005 was only against Respondent No. 1 that he shall not dispossess the Appellant either from premises bearing No. 30-D, Third Floor, Kamla Nagar, Delhi or shop bearing No. A-9, Kamla Nagar, Delhi or create third party interest in respect of shop No. A-9, Kamla Nagar, Delhi. However, a perusal of the order would clearly show that the restraint order was passed only against Respondent No. 1 and not his agents/representatives or the third party who may be acting on behalf of Respondent No. 1 nor Respondent Nos. 2 and 3 who were the parties to the suit. Even if for the sake of argument, it is assumed that the restraint order covers representatives agents etc. also even in that situation the learned Counsel at best has cited the judgments that agents or representatives ought not to instigate or abet the crime. In the present case, by stretch of imagination it can be said that Respondent No. 2 or even 3 has instigated or abetted the violation of the order. The Respondent No. 2 has only received the possession of the tenanted premises from Respondent No. 1. The judgments which have been cited by the learned Counsel are not applicable to the facts of the present case. The ratio of the said judgments cannot be applied to the present case with mathematical precisions as the facts are different. Therefore, it was totally untenable to hold a person guilty of having willfully disobeyed the orders of the Court in respect of which he is neither a party nor aware of the fact nor instigated or abetted the violation. It was contended by the learned Counsel that although Respondent No. 2 was not a party to the contempt application but he had been made aware of the restraint order having been passed by the learned Court vide letter dated 5th September, 2002 which was received by him on 6th September, 2002. Similar letter was served on the SHO of the area also but both of them in utter violation of the order of the Court dated 4th September, 2002 dispossessed the Appellant from the shop.
The learned Counsel for the Appellant has also placed reliance on case titled Jathedar Rachpal Singh v. Delhi Sikh Gurdwara Management Committee 1989 (3) Delhi Lawyer 1, wherein it has been observed as under:
That if a person complies with a direction by another, he knows or has reason to know, is unlawful, then he, is acting unlawfully himself. He is aiding and abetting the unlawful act. He participates in it. He cannot excuse himself by saying that he was under contract to obey the direction, because no person is bound to obey a direction which is unlawful.
In my view, Court shall not be a silent spectator to a breach of an order of injunction passed by a Court of competent jurisdiction against the persons who are subject to its jurisdiction. Neither should a Court be a silent spectator while a person not party to the suit, aids, assists, abets in the breach of an injunction order passed against a party to the suit. Indeed it has been said by Judge Curtis - Raliegh in the case Jannison v. Baker (1972) 1 All E.R as follows:
The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.
The learned Counsel had also cited a judgment titled as State of Bihar v. Sonabati Kumari AIR 1961 SC 221, in which in Para 34 it has been held as under:
Under the law when an order of injunction is passed, that order is binding on and enforceable not merely against the person, nominee impleaded as a party to the suit and against whom the order is passed but against the agents and servants etc. of such party. If such were not the law orders of the injunctions would be rendered nugatory, by their being contravened by the agents and servants of parties. If such agents or servants etc. are proved to have formal notice of the order and they disobey the injunction they are liable to proceeded against for contempt without any need for a further order.
The learned Counsel has also submitted that the judgment of the Hon''ble Supreme Court in Sonabati Kumari''s case (supra) was violated by the two High Courts in the matter of Ram Prasad Singh v. Subodh Prasad Singh AIR 1983 Patna 278 and K.L. Virmani v. ADJ and Ors. AIR 1992 All. 326. It was also contended that the learned Counsel for the Appellant also referred to a judgment of the Division Bench in Andhra Pradesh High Court reported in AIR 1967 AP 219 wherein para 33, it has been held as under:
It is now well settled that the courts have undoubted jurisdiction to commit for contempt a person not included in an injunction order and/or a party to the action, who knowing of the injunction aids and abets the Defendant in committing a breach of it.
I have gone through the authorities cited by the learned Counsel and thoughtfully considered the submissions. No doubt the authorities which are cited by the learned Counsel for the Appellant show that in case a party is aware of the restraint order having been passed by a Court but still abates or instigate the violation of the said order in the capacity of a representative, servant or attorney of the principle party then he shall be responsible for the contempt under Order 39 Rule 2A of the CPC. But in the instant case it is very clear that Respondent Nos. 2 and 3 have not abated or instigated the violation of the order dated 4th September, 2002 which was passed by the Court. The violation which is alleged by the Appellant is that she has been dispossessed or that Respondent No. 1 in collusion with Respondents No. 2 and 3 has violated the order by getting dispossessed from shop bearing No. A-9, Kamla Nagar, Delhi. On the contrary, the reply has come on record which shows that Respondent No. 1 has voluntarily of his own free will surrendered the possession of the shop which was under tenancy originally of his father and then under him on account of inheritance to the Respondent No. 1. This, in my view, did not constitute either abatement or instigation so as to enrobe Respondents No. 2 and 3 for violating the order dated 4th September, 2002. Accordingly, I feel that the learned ADJ was right in dismissing the application for initiation of contempt proceedings against Respondents No. 2 and 3 as they were not prima facie guilty.
So far as Respondent No. 1 is concerned, the matter will be decided by the learned Additional District Judge after the parties are given opportunity to adduce their evidence. I find no infirmity much less any illegality in the order passed by the learned Additional District Judge. Accordingly, the appeal filed by the Appellant is without any merit and the same is dismissed.
No order as to costs.