1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF APRIL2018PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL AND THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV C.C.C. No.1468/2017 (Civil) ... Complainant Between: D.Venkatesh, Aged about 60 years, S/o Late.V.P.Deenadayalu Naidu, No.185, Brigade Road, Bangalore – 560 001. (By: Sri.V.Tarakaram, Senior Advocate for Sri. K.M.Jaganath, Advocates) And:
1. M.G.Deendayalan, 2. M.G.Ramesh Babu, 3. M.G.Murthy, 4. M.G.Rajan, Aged about 58 years. Aged about 55 years, Aged about 62 years. Aged about 52 years. 2 All are Sons of Late.M.Govindaraju, Doing Export Garment Business at No.185, Brigade Road, Bangalore – 560 011. (By: Sri Mohamed Nasiruddin, Advocate) ... Accused This CCC is filed under Sections 11 and 12 of the Contempt of Courts Act 1971 r/w Article 215 of the Constitution of India praying to initiate contempt of Court proceedings against the accused for the offence falling under Section 2(B) of the Act and punish the accused under Section 12 of the Contempt of Courts Act, 1971 for not obeying the judgment passed by this Hon’ble Court dated 06.09.2011 in R.F.A.No.86/2009 as per Annexure – B. This CCC having been heard and reserved on 27.03.2018 and coming on for pronouncement of orders, this day S.Sunil Dutt Yadav, J ., made the following: ORDER
Complainant in the present proceedings has sought to initiate proceedings against respondents for willful disobedience of the judgment dated 06.09.2011 in R.F.A. No.86/2009, which had granted time to the tenant to vacate and hand over vacant possession by December 2012 and invoking Article 215 of the Constitution of India has sought for a 3 consequential direction to the Executing Court to issue delivery warrant.
2. Relevant facts are as follows: Complainant and his mother and sisters, legal heirs of V.P.Deenadayalu Naidu had filed O.S.No.16168/1999 for ejectment against respondents and legal heirs of late M.Govindaraju to vacate and hand over vacant possession of suit schedule property, which on being decreed, was upheld in appeal in R.F.A.No.86/2009 vide order dated 06.09.2011 granting time to vacate and hand over possession till December 2012 and the respondent tenants were required to file the usual undertaking. However no undertaking was filed by the tenants. The challenge to the order of the High Court in SLP (Civil) No.2694/2012 was turned down by the Supreme Court vide its order dated 03.02.2012. 4 Meanwhile, instead of vacating the suit Schedule property, a suit came to be filed in O.S.No.8669/2012 seeking for a declaration that the judgment in O.S.16168/1999 was a nullity. Complainant sought to execute the decree for ejectment in Execution Petition No.25023/2013, in which proceedings, an application came to be filed by respondents herein, under Section 47 read with Order 21 Rule 97, 99 & 101 of CPC for adjudication of their alleged right that they were tenants under M/s.Deen Enterprises and were not tenants of the decree holders. Objections were filed to the said application which is still pending consideration. In the meanwhile, application was filed by the respondents to lead evidence in support of the application made under Section 47 of CPC which was dismissed and all challenges with respect to the said order disallowing 5 leading of evidence have been turned down right up to the Supreme Court. It is also brought to the Court’s notice that respondents have also filed an application by way of a Miscellaneous Petition seeking for a similar declaration as sought for in O.S.No.8669/2012. In the light of the facts stated above, present petition has been filed seeking to initiate action as stated supra.
3. Respondents have, on the other hand, contended as under: that the present petition is the second attempt to initiate action for contempt while the earlier petition in CCC.No.48/2013 (Civil) was dismissed on 21/01/2013; that late Govindaraju, their predecessor in title was the original tenant and after his death, rents were being paid to V.P. Deendayalu Naidu and subsequently, the property which is the subject matter of dispute was contributed to the partnership Firm “M/s.Deena 6 Enterprises” which on re-constitution included the decree holders in O.S.16168/1999; that they have become the tenants of the aforesaid Firm, the partners individually cannot exercise any right as regards the whole property and hence the present proceedings for ejectment at the instance of the individual partners are a nullity, the application under Section 47 read with Order 21 Rule 97, 98, 99 and 101 of CPC is still to be decided and sought for dismissal of the petition in light of the aforesaid contentions.
4. It is seen that in the present case, when the order of eviction/ejectment passed in O.S.No.16168/1999 was in challenge before the High Court in R.F.A.No.86/2009, the High court while dismissing the appeal on merits has considered all contentions on merits and has passed a detailed order adverting to the said contentions. Observations found at the conclusion 7 of the judgment which are relevant for the purpose of appreciating the present controversy reads as follows: “Appeal is dismissed. Time to vacate and hand over possession of the premises is granted till the end of December 2012 subject to payment of rentals at Rs.12,800/- from 1st September, 2011 till the end of December 2012. Appellants to file an undertaking to the effect that they would voluntarily vacate and hand over vacant possession of he premises on or before 31st December 2012 and shall also pay the rentals as and when it falls due at the rate of Rs.12,800/- p.m.” 5. It is clear from the detailed findings at pages 1 to 6 that the judgment is passed on merits, the observation regarding time to vacate has been passed more in order to mitigate difficulty that may be caused to the contemnor herein, who was required to vacate and hand over vacant possession and judgment is not passed as such pursuant to any offer to file an undertaking by the tenant/contemnor to vacate and handover vacant possession. If it were to be so, there 8 would not have been any occassion for the Court to have recorded findings on the merits of the case. It cannot also be said that High Court was misled into providing time to the tenant on the basis of any representation made by the tenant and accordingly had adopted the particular course of action.
6. The complainant relies upon judgments which are examined, considered and found not to be applicable as per the following: (i) Firm Ganpat Ram Rajkumar vs. Kalu Ram and others – 1989 Supp(2) SCC418 The Supreme Court had sought to ensure compliance of the order whereby possession was to be delivered to the decree holder though there was no undertaking. However the judgment was based on the peculiar facts of the case and on a finding that the court was misled into passing the judgment on the representation of the party and hence despite the absence of an 9 undertaking the party was compelled to vacate. In the present case, while granting time to vacate and handover vacant possession in R.F.A.No.86/2009, though the undertaking to vacate was directed to be filed, no such undertaking has been filed and it cannot be said unequivocally that the Court was misled into granting of time on the basis of any active representation of the tenant. It appears that time was granted to mitigate the hardship of tenant. (ii) Pritam Pal vs. High Court of Madhya Pradesh [1993 Supp (1) SCC529 and Ram Niranjan Roy Vs. State of Bihar and others [(2014) 12 SCC11 The aforesaid judgments are relied upon to impress upon the vast powers available to the Court as a Court of Record to ensure compliance of orders in letter and spirit. There is no ambiguity as regards the principle laid down but the present facts do not make out a case which calls for issuance of any direction in 10 exercise of powers under Article 215, as the proceedings to execute the decree is at an advanced stage and there is no impediment in those proceedings to execute the decree. (iii) Zahurul Islam Vs Abul Kalam and other (1995 Supp (1) SCC464 and Santanu Chaudhuri vs Subir Ghosh (2007) 10 SCC253 The above judgments re-iterate the law laid down in ‘Firm Ganpat Ram Raj Kumar vs. Kalu Ram (1989 Supp (2) SCC418. However, for reasons stated supra made while referring to Kalu Ram’s case, we are not inclined to initiate any further proceedings in the present case.
7. The respondent contending that the petition is not maintainable relies on the following judgments: (a) Babu Ram Gupta v. Sudhir Bhasin and another (AIR1979SC1528:
11. As regards the case of Babu Ram Gupta, the petitioner contends that the observations at paragraph 7 as regards undertakings by parties is clearly applicable and the relevant observations reads as under:- “It is manifest that any person appearing before the Court can give an undertaking in two ways: (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemnor and incorporated by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act.” 8. It is clear that in the present case, there is no express undertaking either by way of application or affidavit containing the undertaking nor any order has been passed in R.F.A.No.86/2009 incorporating in its order any oral undertaking given by contemnor. In view of the same, the case of Babu Ram Gupta v. Sudhir 12 Bhasin and another (AIR1979SC1528 can be said to be applicable to the facts of the present case. (b) S.P. Chengalavaraya Naidu v. Jagannath (1994 SCC (1) 1): The said case lays down the principle that “fraud avoids all judicial acts, ecclesiastical or temporal”. It is beyond the scope of the present proceedings to examine as to whether the earlier decree was obtained by fraud. However, even a prima facie perusal of the material on record does not reveal that the earlier decree was obtained by fraud. (c) Addanki Narayanappa & Anr. V. Bhaskara Krishna and 13 others (1966 AIR1300: The said case discusses the rights of the partner vis-à-vis the Firm as regards properties which are contributed to the Firm by the partners and the nature of individual rights of the partners in the property of such Firm. It is beyond the scope of the present 13 proceedings to embark upon consideration of rights of the partners in the Firm.
9. It is also to be observed that the order passed in CCC (Civil) No.48/2013 disposed of 21.1.2013 clearly records a finding that the complainant herein could execute the decree as there was no impediment for execution of the same while declining to exercise “contempt jurisdiction” as the matter “had its origin in the ejectment suit which is a civil matter.” The said findings passed on an earlier occasion between the same parties in 2013 holds good till this day, though in the interregnum there has been progression of various judicial proceedings pending between the parties. Hence, in the light of the above, the exercise of contempt jurisdiction as sought for by the complainant on a renewed second effort does not appear to be appropriate. 14 10. Having observed that it may not be appropriate to initiate proceedings for contempt, it needs however to be observed that the various legal proceedings that have been resorted to by the respondents including filing of O.S.No.8669/2012 seeking for declaration that the decree sought to be executed was a nullity, filing of an application under Section 47 r/w Order 21 Rules 97, 99 and 101 of CPC in Execution Petition No.25023/2013 seeking adjudication of the alleged rights that they were tenants of the Firm M/s. Deena Enterprises and not tenants of decree holder No.1 to 4, filing of Miscellaneous Petition in Misc. Case No.25170/2015 seeking for a similar declaration in O.S.No.8669/2012, all amount to an attempt to entangle the decree holder in a labyrinth of legal proceedings making it a complicated legal quagmire rendering practically the inexecutability of the decree. The difficulties in execution of decrees as adverted to for the first time by the Privy Council in 15 ‘The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh – (1871-1872)14 MIA605:
20. ER912referred to infra which appears not to have changed, is observed aptly by the Hon’ble Supreme Court in the case of Satyawati v. Rajinder Singh and another [(2013) 9 SCC491 as follows: “12. It is really agonizing to learn that the appellant-decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in General Manager of the Raj-Durbhunga vs. Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow, the Court was constrained to observe that “Courts in India have to be careful to see that the process of the Court and the law of procedure are not abused by the judgment- debtors in such a way as to make Courts of law 16 instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.” 13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal vs. Hazari Lal Kishori Lal in para 29 that: “29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections.” 14. This Court, again in Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. was constrained to observe in para 4 of the said judgment that “4.…..it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity 17 at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time.” 15.xxxxxx 16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain. Noticing such effort of respondents herein it needs to be clarified the Court cannot be a mute spectator to the obstructive practices of the respondents and suitable directions needs to be issued to the trial court in handling various legal proceedings relating to the 18 subject matter in dispute to ensure that the fruits of the decree flow to the complainant who has been eagerly waiting for a final end to the continuing litigation. Keeping in mind the travails that the decree holder goes through in ensuring relief already granted in the judgment enures to his benefit it is necessary that the courts executing decrees should be alert to all possible tactics resorted to by the third parties as well as parties to the decree to frustrate the execution of the decree in order to ensure that the solemn faith of the successful decree holder in the judicial system is respected.
11. After considering the dispute between the parties it is considered just and in the interest of justice to direct the trial Courts, handling the various litigations with respect to the subject matter of the dispute between the parties should expedite the disposal of all such proceedings and conclude the same 19 within three months from the date copy of this order is produced in the respective proceedings.
12. To conclude let it not be said: “The rain it raineth on the just and also on the unjust fella; but chiefly on the just, because the unjust steals the just’s umbrella” -by Charles Synge Christopher Bowen, Baron Bowen. Accordingly, petition is dismissed, however, subject to the observations made above. RS/* Ct-am Sd/- JUDGE Sd/- JUDGE