REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CONTEMPT PETITION (CIVIL) Nos. 12-13 of 2006 IN

SPECIAL LEAVE PETITION(CIVIL) Nos.7659-7660 OF 2004

PATEL RAJNIKANT DHULABHAI & Anr.   … Petitioners

VERSUS

PATEL CHANDRAKANT DHULABHAI & Ors. …Respondents/Contemners

J U D G M E N T C.K. Thakker, J.

1. The  present  contempt  petitions  are

filed  by  the  petitioners  against  respondent

Nos. 1 to 3, alleged contemners, praying that

they be held guilty of ‘civil contempt’ for

violating orders passed by this Court on April

26,  2004  and  on  January  10,  2005  and  be

punished accordingly.  A prayer is also made

directing the contemners to deposit the amount

received from third parties in consideration of

transfer of property effected by them during

the period of interim orders of this Court.

2. Shortly stated the facts of the case

are that petitioners and respondent Nos. 1, 4

and 5 (in Special Leave Petitions) are real

brothers and heirs and legal representatives of

one Dhulabhai Patel.  It was the case of the

petitioners  that  in  1961,  one  Chandulal

Muljibhai Parikh and Dhulabhai Patel (father of

petitioners and respondent Nos. 1, 4 and 5)

purchased  land  bearing  Revenue  Survey  Nos.

459/2, 464, 465, 466/1 and 466/2 admeasuring 6

acres and 9 gunthas of village Atladara, Taluka

and District Baroda in the State of Gujarat

from one Parvatibai Ingle by a registered sale

deed.  According to the petitioners, the amount

of consideration was paid from the funds of

Hindu Undivided Family (HUF) of Dhulbhai Patel,

but  name  of  respondent  No.  1  Chandrakant

Dhulabhai Patel was shown as the purchaser of

the property being the eldest son of decdeased

Dhulabhai Patel along with Chandulal Muljibhai

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Parikh.  Respondent Nos. 4 and 5 were minors at

that  time.   Respondent  No.  1,  Chandrakant

Dhulabhai Patel was also studying in a college

and was having no source of income whatsoever.

The  entire  amount  was  paid  by  deceased

Dhulabhai.   According  to  the  petitioners,

several  documents revealed  that the  property

was  managed  by  HUF  of  Dhulabhai  Patel.   In

October, 1986, Dhulabhai died.  No partition by

metes and bounds had been effected between the

sons  of  deceased  Dhulabhai  and  the  property

continued  to  remain  as  HUF  property.   The

petitioners used to manage property after the

death of Dhulabhai.

3. In 1990, a Memorandum of Understanding

(MoU) was entered into between respondent No.

1,  Chandrakant  Patel,  being  eldest  son  of

Dhulabhai Patel family on one hand and heirs of

deceased  Chandulal  Parikh  on  the  other  hand

whereunder it was agreed that a portion of land

towards  western  side  would  be  treated  as

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property of deceased Dhulabhai Patel and his

family members.

4. In 1998, however, respondent No. 1 in

conspiracy with third party and behind the back

of the petitioners and respondent Nos. 4 and 5

executed an agreement to sell the share of HUF

property belonged to the petitioners and other

members  of  deceased  Dhulabhai  Patel.  A

collusive suit came to be filed by respondent

Nos.  2  and  3  (partners  of  M/s  Om  Shivam

Corporation)  in  the  Court  of  Civil  Judge

(Senior Division), Baroda, being Special Civil

Suit No. 311 of 1999 for specific performance

of agreement, dated January 18, 1998 against

respondent No. 1 and within less than a month,

a collusive and fraudulent consent decree was

passed. The petitioners were neither aware of

the suit nor the decree passed therein. It was

only when a caveat was filed by M/s Om Shivam

Corporation,  a  partnership  firm  that  the

petitioners  suspected  foul  play.  They,

therefore, made an inquiry and came to know

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about  the  suit  and  collusive  decree.

Immediately, they filed a suit being Special

Civil Suit No. 605 of 2002 in the Court of

Civil  Judge,  (Senior  Divison),  Baroda  for

declaration, partition of joint family property

and their share in the said property.  Along

with  the  plaint,  the  petitioners  filed  an

application (Exh. 5) under Order XXXIX, Rules 1

and 2 read with Section 151 of the Code of

Civil Procedure, 1908 (hereinafter referred to

as  ‘the  Code’)  for  interim  injunction

restraining the defendants from putting up any

construction on the land admeasuring 1,43,000

sq.  ft.  towards  western  side  of  the  land

bearing Revenue Survey Nos. 459/2, 464, 465,

466/1  and  466/2  and  from  entering  into  any

transaction  of  sale,  gift,  mortgage  or  from

dealing with the property in any other manner

or from handing over possession of the suit

land to anyone else.  The trial Court issued

notice to the defendants, but did not grant

injunction  as  prayed  by  the  petitioners-

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plaintiffs.   The  petitioners  challenged  the

said order by filing Appeal from Order No. 140

of 2003 and the High Court of Gujarat vide its

order  dated  May  2,  2003  directed  the  trial

Court to dispose of the Application (Exh. 5) on

merits within 15 days from the re-opening of

the courts after summer vacation.

5. The trial Court thereafter heard the

matter  and  dismissed  the  Application  by

refusing interim injunction.  The petitioners

once again preferred an appeal against the said

decision in the High Court being Appeal From

Order No. 241 of 2003. Along with Memorandum of

Appeal, the petitioners filed Civil Application

No. 5083 of 2003 for interim injunction. In

paragraph  8  of  the  Civil  Application,  the

petitioners  prayed  for  interim  relief.   The

High Court by an order dated July 23, 2003,

granted ex-parte ad interim relief in terms of

paragraph 8(A).

6. The said paragraph read as under;

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8. The  applicants,  therefore,  pray that :

(A) Pending  admission,  hearing and  final  disposal  of  the aforesaid Appeal from Order, the  Hon’ble  Court  may  be pleased  to  issue  an injunction  restraining opponents Nos. 1 to 3 herein, from  putting  up  any construction on the suit land either themselves or through their agents and/or servants and  from  disposing  of  the said property or creating any interest  therein  in  favour of  a  third  party  either  by sale,  mortgage,  transfer, assignment,  gift  or  in  any other manner whatsoever.

7. It is thus clear that though interim

injunction was refused by the trial Court, the

High Court on July 23, 2003, granted the prayer

of the petitioner and issued interim injunction

during  the  pendency  and  final  disposal  of

Appeal  from  Order  instituted  by  the

petitioners-appellants.   

8. The High Court then heard the matter

and by judgment and order dated March 26, 2004

dismissed the appeal observing that considering

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the  facts  and  circumstances  of  the  case  in

their entirety, the order passed by the trial

Court below Application Exh. 5 called for no

interference.  Interim relief which was granted

earlier was ordered to be vacated.

9. The learned counsel appearing for the

petitioners-appellants  in the  High Court,  at

that  stage,  made  a  prayer  to  the  Court  to

continue interim relief granted earlier so as

to  enable  the  petitioners-appellants  to

approach  higher  forum.   After  hearing  the

learned  counsel  for  the  parties  and  noting

objections raised by the other side, the Court

continued  interim relief  granted earlier  for

four weeks.

10. Paragraphs 35 and 36 of the judgment

which are relevant read as under;

35. Considering the entire facts and circumstances  of  the  case  and having  regard  to  the  legal position concerning the point in issue, this Court is of the view that the impugned order passed by the  Trial  Court  below  an application Exh. 5 does not call for  any  interference  in  this

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Appeal From Order.  Accordingly, this  Appeal  From  Order  is dismissed.  Interim relief granted earlier is vacated.

36. At this stage, Mr. A.J. Patel, the learned advocate appearing for the appellants  requested  to  continue the interim relief granted earlier by this Court for the period of six  weeks  so  as  to  enable  the appellants to approach the higher forum.   Mr.  Bhatt  and  Mr. Nanavati,  learned  advocate appearing for the respondents Nos. 1,  2  &  3  respectively  have strongly objected to the extension of  interim  relief.  After considering  their  submissions  on this  issue,  the  interim  relief granted  earlier  is  extended  for four weeks from today.

                      (emphasis supplied)

11. Being aggrieved by the said order, the

petitioners  approached  this  Court  by  filing

Special Leave Petition (Civil) Nos. 7659-7660

of 2004.  On April 26, 2004, this Court issued

notice and continued interim order passed by

the High Court which was, as noted earlier, in

terms of prayer para 8(A).  The order, dated

April 26, 2004 passed by this Court read as

under;

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“The interim order already granted by  the  High  Court  will  continue subject to further orders of this Court”.

12. Notices were served on the respondents

who appeared. Affidavits and further affidavits

were  thereafter  filed  and  Special  Leave

Petitions were disposed of by this Court on

January 10, 2005.

13. The said order read thus;

“The dispute in these special leave petitions  pertains  to  the construction  on  certain  properties which  are  claimed  to  be  the  joint family properties.  By the impugned interim  order,  the  High  Court  has permitted construction to be made on the  suit  properties.   We  have considered the reasoning of the High Court.   While  not  affirming  the correctness  of  the  prima  facie opinion expressed therein, we are of the  view  that  the  interest  of  the parties will be adequately protected if  a  conditional  order  is  passed. The  special  leave  petitions,  are, accordingly, disposed of by making it clear that any construction which is made by the respondent – purchasers on  the  disputed  properties  will  be subject to the outcome of the suit. Any  third  party  right  which  is created shall be done after notice to the petitioners.  The pendency of the

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proceedings shall also be notified to each  of  the  third  parties  so involved. The Trial Court is directed to dispose of the suit expeditiously, preferably  within  a  period  of  six months  from  the  date  of  the communication of this order.

 (emphasis supplied)

14. The allegation of the petitioners in

the present Contempt Petitions is that in spite

of interim order passed by this Court on April

26,  2004,  as  modified  by  final  order  dated

January 10, 2005, the respondent Nos. 1 to 3

(contemners)  dealt  with  and  transferred  the

suit  property  by  entering  into  agreements,

accepted the amount by way of consideration,

executed sale-deeds in favour of third parties

without  notice  to  the  petitioners,  allowed

construction to be made and thereby committed

wilful disobedience and intentional violation

of the order of the Court and they are liable

to be punished in accordance with law.

15. On  these  petitions,  notices  were

issued  on  February  6,  2006.  The  respondents

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appeared and filed affidavits. Having satisfied

that the pleadings were complete, the Registry

was directed to place the matters for final

disposal. That is how the matters have been

placed before us.

16. The  learned  counsel  for  the

petitioners  contended  that  in  spite  of  the

orders  passed  by  this  Court,  the  contemners

sold the property, received consideration and

executed  sale-deeds.  No  notice  was  given  to

them about the transactions before they were

entered into. The orders of this Court were

abundantly clear. The first order dated April

26,  2004, totally  restrained the  respondents

from taking any action during the pendency of

the  proceedings.  In  spite  of  such  clear-cut

order, properties were sold and several other

actions were taken by the contemners and they

are  liable  to  be  punished  for  committing

contempt of Court.  It was also submitted that

even under the order dated January 10, 2005,

when Special Leave Petitions were disposed of

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and  earlier  interim  order  was  modified,  the

contemners  had  acted  in  violation  of  the

directions. And on that ground also, they are

liable under the Contempt of Courts Act.

17. The  learned  counsel  for  the

petitioners,  in this  connection, referred  to

agreements to sell as well as sale deeds and

acceptance of part payment or full payment of

consideration  during  the  intervening  period

between  July  23,  2003  when  the  High  Court

granted interim relief in terms of para 8(A)

and also orders dated April 26, 2004 and the

final  order  dated  January  10,  2005  by  this

Court.  It was urged that though the suit was

pending before the trial Court and the matter

was  sub-judice, in agreements to sell as also

in  sale  deeds,  an  express  and  unequivocal

statement was made by the contemners that their

title  to  the  property  is  ‘clear’  and

‘marketable’.  It was ordered by the Court on

January 10, 2005 that if any third party right

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would  be  created,  it  “shall  be  done  after

notice  to  the  petitioners”.  No  such  notice,

however, was given to the petitioners. It was

only  after  the  properties  were  sold  that  a

‘pursis’ was filed in the trial Court stating

therein that certain properties were sold by

the defendants. Thus, there was clear breach of

orders of this Court and the contemners are

liable to be punished for violating the interim

orders. 18. The  learned  counsel  for  the

respondents-contemners,  on  the  other  hand,

submitted  that  the  Contempt  Petitions  are

liable to be dismissed. The respondents had not

wilfully  and  intentionally  violated  interim

orders of this Court. No doubt, the High Court,

granted interim injunction in Civil Application

in  Appeal  from  Order  on  July  23,  2003  but

finally Appeal from Order itself was dismissed.

Similarly,  this  Court  on  April  26,  2004

continued  interim  relief  but  ultimately,

dismissed  Special Leave  Petitions on  January

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10, 2005 by modifying earlier interim order. It

was  also  submitted  that  this  Court  never

ordered  to  give  ‘prior’  notice  to  the

petitioners before entering into any agreement

or executing sale-deed. It was, therefore, not

necessary for the respondents either to issue

notice  or  to  intimate  petitioners  before

entering into any transaction. But in certain

cases, even ‘prior’ notice of transaction was

given to the petitioners by the respondents;

though in some cases, such notice was given

after entering into agreements/transactions but

the same could not be said to be violative of

the orders passed by this Court. Alternatively,

it was submitted that even if the Court finds

that there is ‘technical’ breach of the orders

of this Court, the respondents have tendered

unconditional and unqualified apology which may

be  accepted  by  this  Court  and  contempt

proceedings  may  be  dropped  against  them  by

showing magnanimity and taking lenient view.

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19. We  have  given  most  anxious  and

thoughtful  consideration  to  the  rival

contentions of the parties. We have also gone

through the relevant record and orders passed

by the High Court as also by this Court. We

have perused affidavits and further affidavits

filed by the parties to these petitions. We

have carefully gone through various documents

on record.

20. We have reproduced both interim orders

passed by this Court; (i) order, dated April

26, 2004, and (ii) order, dated January 10,

2005. Under the first order, larger relief was

granted, obviously because at that stage, the

Court on prima facie satisfaction of the case,

issued  notice  to  the  respondents.  Moreover,

even the High Court which had granted interim

relief on July 23, 2003, continued the said

relief (though Appeal from Order was dismissed

and interim relief was vacated) so as to enable

the aggrieved parties to approach this Court.

On  January  10,  2005,  however,  this  Court

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disposed of Special Leave Petitions. But taking

note of the pendency of the main matter (suit),

the Court did not totally vacate interim relief

but modified it by imposing certain conditions.

The  question  before  us  is  whether  the

contemners had violated both the orders or any

of the two orders and whether such violation or

disobedience  was  wilful  or  intentional  as

alleged  by  the  petitioners.  If  so,  what

punishment should be imposed on the contemners

and what should be the final order in these

contempt petitions. 21. Before  proceeding  with  the

consideration of rival contentions, it may be

stated  for  the  completion  of  record  that

Special Civil Suit No. 605 of 2002 instituted

by  the  petitioners  herein  (plaintiffs)  was

decreed  by  the  IXth  Additional  Senior  Civil

Judge,  Vadodara  on  May  23,  2006  and  it  was

declared  that  plaintiff  Nos.  1  and  2  and

defendant Nos. 1, 4 and 5 each has 3/16 share

in the suit property and defendant Nos. 7, 8

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and 9 each has 1/48 share in the said property.

Preliminary decree was ordered to be drawn up

accordingly.   It  was  also  stated  that  the

defendants against whom the decree is passed

have  challenged  the  decree  by  filing  First

Appeal  in  the  High  Court  and  the  matter  is

sub-judice.  

22. Now, it is the case of the petitioners

that in spite of interim orders of this Court,

dated April 26, 2004 and January 10, 2005, in

gross  violation,  wilful  disobedience  and

intentional breach thereof, the contemners had

sold certain properties without notice to the

petitioners.  It was stated that the contemners

executed  a  sale-deed  in  favour  of  Madhuben

Rohit and Jasodaben Thakor on August 30, 2005

for  consideration  of  Rs.3,30,000/-.  The

contemners accepted a cheque of Rs.2,00,000/-

bearing  No.  531526,  dated  October  15,  2004.

Similarly, an agreement to sell was executed in

favour of Hemlataben Shah for Rs.3,00,000/- on

May 26, 2005 and the entire amount was received

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by three cheques; cheque No.719372, dated April

15,  2004;  cheque  No.719374,  dated  April  22,

2004 and cheque No. 216684, dated April 29,

2004.  Again, a sale deed in favour of Smt.

Ranjit  Gulati  was  executed  by  accepting  a

cheque of Rs.51,000/- dated September 10, 2003,

a cheque of Rs.1,00,000/- dated October 8, 2004

and a cheque of Rs.1,39,000/- dated April 26,

2004.   By  producing  additional  documents  on

record, the petitioners have stated that sale-

deeds were executed by the contemners in favour

of Jayesh Natwarlal Parikh on August 18, 2005;

Hemaben Jayeshbhai Parikh on August 18, 2005,

Rashmikaben  Navinchandra Desai  on August  30,

2005 and Tolaram Radharam Popat on April 25,

2005. All these transactions were entered into

in gross violation and breach of the orders of

the Court and the contemners may, therefore, be

punished for committing contempt of Court.

23. The respondents have filed affidavits

denying  the  allegations  levelled  by  the

petitioners and asserting that they have not

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committed any act in disobedience of the order

of the Court and the contempt petitions are

liable to be dismissed.

24. Respondent  No.  1  (Chandrakant

Dhulabhai), in his affidavit, dated June 16,

2006 (filed on August 17, 2006) stated that the

contempt  petitions  are  ‘primarily’  directed

against respondent Nos. 2 and 3 who are alleged

to have violated the orders of this Court.  It

was stated that the orders were required to be

complied with by respondent Nos. 2 and 3 and

were not directed against respondent No. 1.  It

was also stated that the respondent No. 1 is 67

years old and has been impleaded just to harass

him  without  making  any  averment/allegation

against  him.   It  is,  therefore,  prayed  to

dismiss contempt petitions against him.

25. A counter-affidavit is also filed by

respondent  Nos.  2  and  3  controverting  the

averments and denying the allegations of the

petitioners in the Contempt Petitions.  It was

stated  that  during  the  operation  of  interim

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order dated April 26, 2004, they had neither

executed any sale deed nor created third party

interest in the suit property.  The cheques

said  to  have  been  accepted  by  them  during

interim  orders  represented  the  amount  paid

towards consideration of the apartment booked

prior to the issuance of interim orders.

26. Regarding  the  allegation  that  the

title of the suit property was described as

‘clear and marketable’, it was stated that as

per the order of the Court, what was required

to  be  mentioned  was  the  pendency  of  the

proceedings.  In all the sale deeds, executed

by the respondents, specific recital was made

that the transaction was subject to pendency of

civil suit and final decision therein.

27. Regarding the third allegation of not

giving notice to the petitioners, it was stated

that no ‘prior’ notice was required as per the

order of this Court.  It was stated;

a. in order to protect the interest of the  parties,  this  Hon’ble  Court passed a conditional order stating

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inter alia “any third party rights which  is  created  shall  be  done after notice to the petitioners”. This Hon’ble Court has not used the word  “prior”  as  alleged.   This Hon’ble Court had desired that as and  when  third  party  rights  are created, the petitioners should be duly informed.  The purpose of such information  was  to  enable  the petitioners  to  protect  their interest by impleading such third parties in the pending suit.

b. Admittedly,  initially,  by  pursis dated  1.3.2005,  the  petitioners were given prior intimation about the creation of third party rights. However, subsequently it was found that out of the 11 sale deeds which were  proposed  to  be  executed  and about  which  prior  intimation  by pursis dated 1.3.2005 was given – 7 sale  deeds  could  not  be  executed for quite some time, as the deal could not be finalized.  Further, before executing the sale deeds, 2 buyers/third  parties/allottees  got the deals transferred in some other name,  viz.  name  of  their wife/child.

28. Hence, as per legal advice obtained,

the intimation was being submitted before the

Hon’ble Civil Court after taking endorsement of

Advocate for the petitioner.

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29. It  was  further  stated  by  respondent

Nos.  2  and  3  that  originally  land  bearing

Survey Nos. 459/2, 464, 465, 466/1 and 466/2,

admeasuring 26.608 Sq.M. was jointly purchased

by  Chandrakant Dhulabhai  Patel and  Chandulal

Muljibhai Parikh in 1961. In 1990, however, an

understanding had been arrived at between the

heirs  and legal  representatives of  Chandulal

Parikh and Chandrakant Dhulabhai Patel and as

per partition, 50% land situated on the western

side  (Part  ‘A’)  fell  to  the  share  of

Chandrakant  Patel  whereas  50%  land  on  the

eastern side (Part ‘B’) came to the share of

Parikh  family.   It  was  further  stated  that

respondent  Nos.  2  and  3  entered  into

Development  Agreement with  Parikh family  for

50% eastern side land (Part ‘B’) which came to

the  share  of  Parikh  family  and  also  with

respondent No. 1 Chandrakant Patel for western

side of land (Part ‘A’). The scheme was thus

jointly promoted for part ‘A’ land and part ‘B’

land.  In course of time, property ‘A’ became

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disputed property, but there was no dispute as

to property of part ‘B’.  It was also stated

that part ‘B’ property abuts 30 metres wide

road while part ‘A’ property abuts 40 meters

wide T.P. Road.  Thus, part ‘A’ property (suit

property) was having better location and higher

commercial value.  

30. Respondent Nos. 2 and 3 admitted that

Madhuben Rohit and Jasodaben Thakor deposited

Rs. two lacs on October 15, 2004 for booking

one of the shops which was to be constructed on

Part ‘B’ property.  But after the disposal of

Special Leave Petitions on January 10, 2005,

the injunction came to an end regarding part

‘A’ property. Under the circumstances, request

of Madhuben and Jasodaben for allotment of shop

in  part  ‘A’  property  instead  of  part  ‘B’

property  was  favourably  considered  and

accepted. Cases of Hemlataben Shah, Rashmikaben

and Ranjit Gulati were identical. Sale-deed in

favour of Dr. Tolaram Popat was executed on

January 24, 2005, i.e. after final disposal of

2

SLP and there was no interim injunction at that

time.

31. It  was,  therefore,  submitted  that

respondent Nos. 2 and 3 had not created any

right  in  favour  of  third  party  during  the

operation of interim order and there was no

question  of  taking  proceedings  under  the

Contempt of Courts Act.

32. Regarding  notice  to  petitioners,  the

respondents  stated  that  pursis,  Ex.  88  was

filed in the trial Court wherein details had

been supplied in respect of 11 transfer deeds

which were to be executed.  Thereafter, again

pursis, Ex. 106 was filed on September 01, 2005

in which all details were given.  Thus, they

have not violated the order of this Court.

33. Finally, it was stated;

“Without  prejudice  to  the above, the respondents tender their unconditional  apology  to  this Hon’ble Court.”

34. In  affidavit-in-rejoinder,  the

petitioners  have stated  that after  examining

2

oral  and documentary  evidence, the  competent

Court passed a decree in favour of plaintiffs

declaring shares of plaintiffs and defendants.

Meanwhile, however, the respondents disposed of

several  properties.   It  was  reiterated  that

illegally  and  with  mala  fide  intention,  the

respondents  created  third  party  interest  in

gross defiance of interim orders and by making

inconsistent and contradictory statements.  A

false statement was made by respondents in sale

deeds and in agreements to sell that the title

of the respondents over the property was ‘clear

and marketable’.  As to properties part ‘A; and

‘B’,  it  was  stated  that  the  contention  was

wholly irrelevant inasmuch as the trial Court

decreed the suit by holding the plaintiffs as

joint owners of the property.

35. Further affidavit was thereafter filed

by respondent Nos. 2 and 3 on February 25, 2008

on the question of title deeds.  It was stated

that in sale deeds, a statement was made that

“third party has no right, title, interest or

2

claim and the property (subject-matter of sale

deed) was not under attachment”.  But it was

also stated that the suit was pending and the

sale-deeds  were  executed  subject  to  final

decision in the suit.  Thus, the respondents

had  acted  bona  fide.   They  have  not  only

notified  in  the  sale-deeds  the  pendency  of

civil suit but also have gone a step further

and  stated  that  the  sale-deeds  were  being

executed  subject  to  final  decision  in  the

pending  suit.   It  was,  therefore,  submitted

that  the  Contempt  Petitions  should  be

dismissed.

36. From  the  facts  stated  above,  it  is

proved that there is breach of interim orders

passed by this Court.  So far as the defence as

to properties falling in parts ‘A’ and ‘B’ is

concerned, in our opinion, it is clearly an

after thought and the plea has been put forward

without there being anything on record.  Though

it  was  stated  that  initially,  Madhuben,

Hemlataben, Rashmikaben and Ranjit Gulati were

2

given  shops  in  part  ‘B’  property,  no  such

agreements/deeds have been placed on record. It

was then stated that after interim relief was

vacated and request was made by them to allot

them  shops  in  part  ‘A’  property,  no

evidence/material  has  been  adduced  by  the

contemners.  A stereo-type affidavits have been

filed sworn on one and the same day, July 29,

2006 after contempt notice was served upon the

respondents.  Even the sale-deeds do not recite

part ‘A’ or ‘B’ of the property or the fact

that earlier the allottee was granted shop in

part ‘B’ property but after the disposal of the

Special Leave Petitions, request was made by

the  purchaser  to  convert  the  allotment  from

part ‘B’ property to part ‘A’ property.  The

so-called defence, therefore, is apparently to

avoid consequences of contempt proceedings.

37. Moreover, the defence does not appear

to be probable.  Normally,  no reasonable and

prudent  man/woman  who  purchases  immovable

property with a ‘clear’ title would request the

2

owner of the property to allot him/her property

over which his title is not clear, which is the

subject-matter of litigation, for which a suit

is pending and the matter is  sub-judice in a

Court of law.  38. Further,  the  pleas  advanced  by

respondent  Nos.  2  and  3  are  inconsistent,

conflicting  and  irreconcilable.   On  the  one

hand, it was asserted that during the operation

of the interim order, dated April 26, 2004,

respondent Nos. 2 and 3 had not created third

party interest in the suit property and the

cheques  said  to  have  been  accepted  by  them

during the pendency of proceedings ‘represented

the amount paid towards consideration of the

apartment booked prior to the issuance of the

interim orders,’  while on the other hand, it

was stated that initial booking was for shops

to be constructed on part ‘B’ property, but

subsequently, after dismissal of Special Leave

Petitions,  at  the  request  of  purchasers,

2

allotment was converted from part ‘B’ property

to part ‘A’ property.  If it were so, there was

no  question  of  raising  a  plea  that  the

acceptance of cheques during the pendency of

the interim orders represented the amount of

consideration booked  prior  to the issuance of

interim orders.  If initial booking and payment

was in relation to part ‘B’ property, it was

immaterial and altogether irrelevant whether it

was prior or subsequent to filing suit by the

plaintiffs or grant of interim orders either by

the High Court or by this Court. 39. We  are,  therefore,  fully  convinced

that during the pendency of the proceedings and

in  spite  of  interim  orders  passed  by  this

Court, agreements have been entered into by the

contemners,  cheques  had  been  accepted  and

consideration  had  been  received  at  least  in

part.  So far as the first order passed by this

Court on April 26, 2004 is concerned, there was

total prohibition from creating any interest in

favour of third party either by sale, mortgage,

3

transfer,  assignment,  gift  or  ‘in  any  other

manner whatsoever’.  Hence, entering into an

agreement or acceptance of full or even part

consideration would be hit by the said order.

In  our  considered  view,  it  would  amount  to

‘creation  of  interest’  prohibited  by  this

Court.

40. The matter did not end there.  Special

Leave Petitions were filed in this Court by the

petitioners  against  an  interim  order  not

granting  injunction  below  Application,  Ex.5.

Though the High Court granted such injunction,

but it was vacated at the time of dismissal of

Appeal from Order.  But all the parties to the

suit were aware that the main matter (suit) was

pending and rights of contesting parties in the

suit-property were yet to be decided.  In the

circumstances, ‘injunction’ or ‘no injunction’,

the  title  of  the  defendants  was  ‘under

challenge’.  It  was  ‘cloudy’  and  unless  and

until the suit is decided, it cannot be said

3

that  they  had  ‘clear  and  marketable  title’.

Though the legal position is clear and beyond

controversy,  we  find  that  an  express,

unambiguous and unequivocal statement is made

by the contemners in all sale deeds that their

title  to  the  property  is  ‘clear  and

marketable’. It was also stated that they were

independent owners, possessors and occupiers of

the property and there was no right, interest,

part share, claim of anybody else therein.

41. It  was,  no  doubt,  submitted  by  the

learned counsel for the contemners that it was

specifically and clearly stated that a suit was

pending in the Court of Civil Judge (Senior

Division), Vadodara and it was also clarified

that the documents were executed subject to the

final decision in the suit.  It was further

submitted that if the owner of the property

does  not  state  that  he  has  title  over  the

property he seeks to transfer and that such

title is ‘clear and marketable’, no reasonable

and prudent man would come forward to purchase

3

such property.  To this extent, the learned

counsel is right. That, however, does not mean

that  in  such  case,  a  person  whose  title  is

challenged and the proceedings are pending will

be permitted to say that his title is ‘clear

and marketable’ and there is no impediment on

the contemners from transferring the property

in favour of purchasers.

42. Finally, in any case, there is clear

breach  and  violation  of  the  order  of  this

Court, i.e. order, dated January 10, 2005 so

far  as  ‘notice’  to  the  petitioners  is

concerned.  It  is  not  disputed  even  by  the

contemners that in some cases, notice as to

creation of third party interest had been given

after  creation  of  such  interest  by  filing

pursis in the Court.

43. The learned counsel for the contemners

half-heartedly  submitted that  this Court  had

not ordered that ‘prior’ notice should be given

to the petitioners regarding creation of third

3

party rights and hence, there was no violation

of the direction of the Court.

44. We  are  unable  to  agree  with  the

submission.  This Court has stated; “Any third

party  right  which  is  created  shall  be  done

after notice to the petitioners.”  In our view,

the direction has only one meaning and it is

that third party interest can only be created

after  notice to the petitioners.  Admittedly,

that was not done, at least, in few cases.  It

is, therefore, clear that there is violation

and disobedience of the orders of the Court and

the contemners are responsible for such act.

45. From the overall considerations of the

matter in the light of series of events, we

hold  that  the  respondents-contemners  have

disregarded and violated the orders passed by

this Court on April 26, 2004 and January 10,

2005.

46. The  next  question  is  whether  for

disobedience of the order passed by this Court,

3

the  respondents/contemners  are  liable  to

punishment? In this connection, we may refer to

some of the legal provisions. Article 129 of

the Constitution declares this Court (Supreme

Court) to be “a Court of Record having all the

powers of such a Court including the power to

punish for the contempt of itself”. Clause (c)

of Section 94 of the Code of Civil Procedure,

1908 enacts that in order to prevent the ends

of justice from being defeated, the Court may,

commit the person guilty of disobedience of an

order of interim injunction to civil prison and

direct his property be attached and sold. Rule

2A of Order XXXIX as inserted by the Code of

Civil Procedure (Amendment) Act, 1976 (Act 104

of 1976) reads thus:

2A.  Consequence  of  disobedience  or breach of injunction—(1) In the case of  disobedience  of  any  injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms  on  which  the  injunction  was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or  proceeding  is  transferred,  may

3

order  the  property  of  the  person guilty of such disobedience or breach to  be  attached,  and  may  also  order such  person  to  be  detained  in  the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall  remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out  of  the  proceeds,  the  Court  may award such compensation as it thinks fit to the injured party and shall pay the  balance,  if  any,  to  the  party entitled thereto.

47. The  provisions  of  the  Contempt  of

Courts  Act,  1971  have  also  been  invoked.

Section 2 of the Act is a definition clause.

Clause (a) enacts that contempt of court means

‘civil contempt or criminal contempt’. Clause

(b) defines ‘civil contempt’ thus;

(b)  ‘civil  contempt’  means  wilful disobedience to any judgement, decree, direction,  order,  writ  or  other process of a court or wilful breach of an undertaking given to a court.

3

48. Reading of the above clause makes it

clear  that  the  following  conditions  must  be

satisfied before a person can be held to have

committed a civil contempt;

(i) there  must  be  a  judgment,  decree, direction,  order,  writ  or  other process of a Court (or an undertaking given to a Court);

(ii) there  must  be  disobedience  to  such judgment,  decree,  direction,  order, writ or other process of a Court (or breach  of  undertaking  given  to  a Court); and

(iii) such disobedience of judgment, decree, direction,  order,  writ  or  other process  of  a  Court  (or  breach  of undertaking) must be wilful.

49. Section  12  provides  punishment  for

contempt of Court. The relevant part of the

provision reads thus;

S.  12  -  Punishment  for  contempt  of court—(1)  Save  as  otherwise  expressly provided in this Act or in any other law,  a  contempt  of  court  may  be punished with simple imprisonment for a term which may extend to six months, or

3

with  fine  which  may  extend  to  two thousand rupees, or with both:

Provided  that  the  accused  may  be discharged  or  the  punishment  awarded may be remitted on apology being made to the satisfaction of the court.

Explanation.--An  apology  shall  not  be rejected merely on the ground that it is  qualified  or  conditional  if  the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no  court  shall  impose  a  sentence  in excess of that specified in sub-section (1) for any Contempt either in respect of itself or of a court subordinate to it.  

(3) Notwithstanding anything contained in  this  section,  where  a  person  is found guilty of a civil contempt, the court  ,  if  it  considers  that  a  fine will not meet the ends of justice and that  a  sentence  of  imprisonment  is necessary  shall,  instead  of sentencing him to simple imprisonment, direct that he be detained in a civil prison  for  such  period  not  exceeding six months as it may think fit.

. . . . . . . . .

50. In Ashok Paper Kamgar Union v. Dharam

Godha & Ors., (2003) 11 SCC 1, this Court had

3

an occasion to consider the concept of ‘wilful

disobedience’ of an order of the Court. It was

stated that ‘wilful’ means an act or omission

which is done voluntarily and with the specific

intent to do something the law forbids or with

the specific intent to fail to do something the

law requires to be done, that is to say, with

bad purpose either to disobey or to disregard

the law. According to the Court, it signifies

the act done with evil intent or with a bad

motive for the purpose. It was observed that

the act or omission has to be judged having

regard to the facts and circumstances of each

case.

51. In Kapildeo Prasad Sah & Ors. v. State

of Bihar & Ors., (1999) 7 SCC 569, it was held

that for holding a person to have committed

contempt,  it  must  be  shown  that  there  was

wilful disobedience of the judgment or order of

the  Court.  But  it  was  indicated  that  even

negligence  and  carelessness  may  amount  to

3

contempt. It was further observed that issuance

of notice for contempt of Court and power to

punish  are having  far reaching  consequences,

and as such, they should be resorted to only

when a clear case of wilful disobedience of the

court's order is made out. A petitioner who

complains breach of Court's order must allege

deliberate or contumacious disobedience of the

Court's order and if such allegation is proved,

contempt can be said to have been made out, not

otherwise. The Court noted that power to punish

for contempt is intended to maintain effective

legal  system.  It  is  exercised  to  prevent

perversion of the course of justice.   

52. In the celebrated decision of Attorney

General v. Times Newspaper Ltd.; 1974 AC 273 :

(1973) 3 All ER 54 : (1973) 3 WLR 298; Lord

Diplock stated:

“There  is  an  element  of public policy in punishing civil contempt, since the administration

4

of justice would be undermined if the  order  of  any  court  of  law could  be  disregarded  with impunity.”

53. In  Anil Ratan Sarkar & Ors. v. Hirak

Ghosh & Ors., (2002) 4 SCC 21, this Court held

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

or  breach  of  such  order  would  amount  to

contempt of Court. There can be no laxity in

such a situation because otherwise the Court

orders  would  become  the  subject  of  mockery.

Misunderstanding  or own  understanding of  the

Court’s  order  would  not  be  a  permissible

defence. It was observed that power to punish a

person for contempt is undoubtedly a powerful

weapon in the hands of Judiciary but that by

itself  operates  as  a  string  of  caution  and

4

cannot be used unless the Court is satisfied

beyond doubt that the person has deliberately

and  intentionally  violated  the  order  of  the

Court.  The  power  under  the  Act  must  be

exercised  with  utmost  care  and  caution  and

sparingly in the larger interest of the society

and  for  proper  administration  of  justice

delivery system. Mere disobedience of an order

is not enough to hold a person guilty of civil

contempt.  The  element  of  willingness  is  an

indispensable  requirement  to  bring  home  the

charge within the meaning of the Act.

54. In  Commissioner,  Karnataka  Housing

Board v. C. Muddaiah, (2007) 7 SCC 689, one of

us  (C.K.  Thakker,  J.)  observed  that  once  a

direction is issued by a competent Court, it

has to be obeyed and implemented without any

reservation. If an order passed by a Court of

Law is not complied with or is ignored, there

will  be  an end of Rule  of  Law.  If a party

against whom such order is made has grievance,

4

the  only  remedy  available  to  him  is  to

challenge  the  order  by  taking  appropriate

proceedings known to law. But it cannot be made

ineffective  by  not  complying  with  the

directions  on  a  specious  plea  that  no  such

directions could have been issued by the Court.

Upholding  of  such  argument  would  seriously

affect and impair administration of justice.

55. In  All  Bengal  Excise  Licensees

Association v. Raghabendra Singh & Ors., (2007)

11 SCC 374, this Court considered several cases

and observed that wilful and deliberate act of

violation  of  interim  order  passed  by  a

competent  Court  would  amount  to  contempt  of

Court.

56. A  reference  in  this  connection  may

also be made to a decision of this Court in

Tayabbhai  M.  Bagasarawala  v.  Hind  Rubber

Industries (P) Ltd., (1997) 3 SCC 443. In that

case,  the  plaintiff-landlord  filed  a  suit

4

against the defendant-tenant in the City Civil

Court for permanent injunction restraining the

defendant from carrying on construction in the

suit  premises.  Ad  interim  injunction  was

granted by the Court. Defendant’s application

for  vacating  injunction  was  dismissed.  The

defendant,  however,  committed  breach  of

injunction.  The  plaintiff,  hence,  filed  an

application under Order XXXIX, Rule 2-A of the

Code. The defendant came forward and raised an

objection as to jurisdiction of the Court and

power  to  grant  injunction.  The  High  Court,

ultimately, upheld the objection and ruled that

City  Civil  Court  had  no  jurisdiction  to

entertain the suit. It was, therefore, argued

by the defendant that he cannot be punished for

disobedience  of  an  order  passed  by  a  Court

which had no jurisdiction to entertain a suit

or to grant injunction. The High Court upheld

the contention. The plaintiff approached this

Court.  

4

57. This  Court  observed  that  until  the

question of jurisdiction had been decided, the

City  Civil  Court  possessed  power  to  make

interim orders. The Court could also enforce

them. A subsequent decision that the Court had

no jurisdiction to entertain the suit did not

render interim orders passed earlier non est or

without jurisdiction. A party committing breach

of  such  orders  could  not  escape  the

consequences of such disobedience and violation

thereof.  Accordingly,  the  Court  held  the

defendant  guilty  for  intentionally  and

deliberately  violating  interim  order  and

convicted him under Rule 2-A of Order XXXIX of

the  Code  and  sentenced  him  to  one  month’s

imprisonment.

58. Speaking for the Court, Jeevan Reddy,

J. stated;  

“Can it be said that orders passed by the Civil Court and the High Court during this period of six years were

4

all non est and that it is open to the defendants  to  flout  them  merrily, without fear of any consequence. The question is whether the said decision of the High Court means that no person can  be  punished  for  flouting  or disobeying the interim/ interlocutory orders while they were in force, i.e., for  violations  and  disobedience committed prior to the decision of the High  Court  on  the  question  of jurisdiction.  Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one  can  be  punished  thereafter  for disobedience  or  violation  of  the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law  and  would  seriously  erode  the dignity  and  the  authority  of  the courts.   (emphasis supplied)

59. From the above decisions, it is clear

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

4

the orders passed by a Court, it is required to

take strict view under the Act, it should not

hesitate  in  wielding  the  potent  weapon  of

contempt.

60. Now,  in  the  instant  case,  both  the

orders passed by this Court on April 26, 2004

and January 10, 2005, were explicitly clear.

The first order totally prohibited/restrained

the  respondents/contemners  from  creating  any

interest whatsoever in the suit property. As

held  by  us,  in  spite  of  the  said  order,

interest had been created by the contemners in

the suit property. But even otherwise there is

intentional disobedience and wilful breach of

the  subsequent  order  dated  January  10,  2005

inasmuch as transactions had been entered into

without issuing notice to the petitioners. We

have already held that they could not have been

entered into by the respondents before issuance

of notice to the petitioners. The respondents

were clearly aware of the order. In fact, the

4

action was sought to be defended and justified

on the ground that the Court had not directed

‘prior’ notice, and as such, non-issuance of

notice before entering into sale transactions

would not amount to disobedience of the order

of  the  Court.  We  are  unable  to  uphold  the

contention.  In  the  circumstances  it  must  be

held that the disobedience of the order by the

contemners  was  wilful,  intentional  and

deliberate.

61. The question then is whether the case

calls  for  imposition  of  punishment  on  the

contemners.  The  learned  counsel  for  the

contemners submitted that in the affidavit in

reply, the respondents have stated that if this

Court comes to the conclusion that they had

committed  contempt  of  Court,  the  Court  may

accept  unconditional  and  unqualified  apology

and may discharge notice. The counsel submitted

that the statutory provision itself enacts that

no  apology  shall  be  rejected  merely  on  the

4

ground  that  it  is  qualified  or  conditional

[Explanation to Section 12(1)].

62. We must frankly admit our inability to

agree with the learned counsel.  In the light

of what is stated above, we are convinced that

the  contemners  have  intentionally  and

deliberately violated the orders of the Court.

We  are  also  convinced  that  the  orders  were

clear, unambiguous and unequivocal having one

and  only  one  meaning.  Wilful  and  deliberate

disobedience of the orders passed by the apex

Court of the country can never be said to be

bona fide, honest or in good faith.  If it is

so, the action calls for serious view to ensure

proper administration of justice.  

63. In Hiren Bose, Re, AIR 1969 Cal 1 : 72

Cal WN 82, the High Court of Calcutta stated;

”It  is  also  not  a  matter  of  course that a Judge can be expected to accept any  apology.  Apology  cannot  be  a

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weapon  of  defence  forged  always  to purge the guilty. It is intended to be evidence of real contrition, the manly consciousness of a wrong done, of an injury  inflicted  and  the  earnest desire to make such reparation as lies in the wrong-doer's power. Only then is  it  of  any  avail  in  a  Court  of justice  But before it can have that effect, it should be tendered at the earliest  possible  stage,  not  the latest. Even if wisdom dawns only at a later  stage,  the  apology  should  be tendered  unreservedly  and unconditionally, before the Judge has indicated  the  trend  of  his  mind. Unless that is done, not only is the tendered apology robbed of all grace but  it  ceases  to  be  an  apology  It ceases to be the full, frank and manly confession of a wrong done, which it is intended to be”.

64. It is well-settled that an apology is

neither a weapon of defence to purge the guilty

of their offence; nor is it intended to operate

as a universal panacea, it is intended to be

evidence  of  real  contriteness  [Vide  M.Y.

Shareaf v. Hon’ble Judges of the High Court of

Nagpur; (1955) 1 SCR 757 : M.B. Sanghi v. High

Court of Punjab & Haryana, (1991) 3 SCR 312].

65. In T.N. Godavarman Thirumulpad through

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the Amicus Curiae v. Ashok Khot & Anr.,  2006

(5) SCC 1, a three Judge Bench of this Court

had an occasion to consider the question in the

light of an ‘apology’ as a weapon defence by

the  contemner  with  a  prayer  to  drop  the

proceedings.  The  Court  took  note  of  the

following observations of this Court in  L.D.

Jaikwal v. State of U.P., (1984) 3 SCC 405:

"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  slipper  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”.

66. The  Court,  therefore,  rejected  the

prayer and stated;

“Apology is an act of contrition. Unless  apology  is  offered  at  the

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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”.

67. Similar view was taken in other cases

also by this Court.

68. We  are  also  satisfied  that  the  so-

called  apology  is  not  an  act  of  penitence,

contrition or regret. It has been tendered as a

‘tactful move’ when the contemners are in the

tight corner and with a view to ward off the

Court.  Acceptance of such apology in the case

on hand would be allowing the contemners to go

away  with  impunity  after  committing  gross

contempt of Court.  In our considered opinion,

on the facts and in the circumstances of the

case,  imposition  of  fine  in  lieu  of

imprisonment will not meet the ends of justice.

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69. Considering  the  facts  and

circumstances  in  their  entirety,  in  our

opinion, ends of justice would be served if we

hold  the  respondents/contemners  guilty  under

Section 12 of the Contempt of Courts Act, 1971,

read with Section 94(c) and Rule 2-A of Order

XXXIX of the Code of Civil Procedure, 1908 as

amended  by  the  Code  of  Civil  Procedure

(Amendment) Act, 1976 and  Article 129 of the

Constitution  and  order  the  respondents-

contemners to undergo simple imprisonment for a

term of two weeks i.e. fourteen days.

70. Ordered  accordingly.   The  Contempt

Petitions are disposed of.

……………………………………………………………J. (C.K. THAKKER)

NEW DELHI, ……………………………………………………………J. JULY 21, 2008. (AFTAB ALAM)

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