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Kulsambibi D/O. Shah Mohamed Noor Mohamed Vs. Noor Ahmed Noor Mohmed and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR826
AppellantKulsambibi D/O. Shah Mohamed Noor Mohamed
RespondentNoor Ahmed Noor Mohmed and ors.
Excerpt:
- .....are filed challenging the order passed by the judge, city civil court (court no. 3), ahmedabad in civil suit no. 3615 of 1973. the application below exh. 546 was decided by the learned city civil court judge on 23-9-1983.3. one noor ahmed noor mohmed was the plaintiff and kulsambibi, ibrahimbhai and usmanbhai were the three defendants. the original suit was filed as an indigent person and it was in fact the permission to allow the original plaintiff to file the suit as an indigent person under order 33 of the civil procedure code. it was miscellaneous civil application no. 452 of 1972. that application was granted and it was thereafter numbered as suit. ad-interim injunction exh. 11 was issued and served on defendant nos. 1, 2 and 3. ultimately the suit was numbered as civil suit no......
Judgment:

S.L. Talati, J.

1. For the purpose of deciding these appeals it is not necessary to state all facts. The reason is that all facts are stated in the judgment of City Civil Court and those facts are admitted.

2. The appeals are filed challenging the order passed by the Judge, City Civil Court (Court No. 3), Ahmedabad in Civil Suit No. 3615 of 1973. The application below Exh. 546 was decided by the learned City Civil Court Judge on 23-9-1983.

3. One Noor Ahmed Noor Mohmed was the plaintiff and Kulsambibi, Ibrahimbhai and Usmanbhai were the three defendants. The original suit was filed as an indigent person and it was in fact the permission to allow the original plaintiff to file the suit as an indigent person under Order 33 of the Civil Procedure Code. It was Miscellaneous Civil Application No. 452 of 1972. That application was granted and it was thereafter numbered as suit. Ad-interim injunction Exh. 11 was issued and served on defendant Nos. 1, 2 and 3. Ultimately the suit was numbered as Civil Suit No. 3615 of 1973. There was a breach of injunction order issued and, therefore, application Exh. 546 was required to be given. Ultimately after hearing the parties the learned City Civil Court Judge passed an order and he ordered defendant No. 1, 2 and 3 may be detained in civil prison for a period of one month. He also passed an order to the effect that the plaintiff should furnish particulars of the properties of defendant Nos. 1, 2 and 3 which were liable to be attached under Rule 2A of Order 39 of the Civil Procedure Code. It was stated that on such application being furnished further orders regarding the attachment will be passed. That order is now challenged.

4. The learned advocate Shri Nanavati who appeared in all the three matters on behalf of defendant Nos. 1, 2 and 3 tendered unconditional apology on behalf of three defendants and submitted that the order passed regarding the attachment in paragraph (B) of the order would serve the purpose and it is not necessary to send any person in civil prison. The grounds stated are that so far as defendant No. 3 is concerned she is female aged 70 and that she is illiterate person and all transactions were being managed by her brothers and, therefore, she perhaps did not know anything. Defendant Nos. 2 and 3 are brothers. Now, therefore, it could not be urged that they were not attending the transactions. However, it was submitted that defendants No. 1 and 2 who are brothers they are also sufficiently old and ultimately it was a partition suit and preliminary decree was already passed and a long time had elapsed and even it is quite likely that they may be under an impression that the order of injunction may not now be subsisting. Further, by preliminary decree they had got their undivided shares declared and they were in debts. Decrees were passed against them. It is also submitted that when preliminary decree was passed ad-interim injunction was not confirmed.

5. In order to satisfy the debts it was necessary to sell the properties and ultimately they sold away their undivided shares and so far as the plaintiff is concerned, the plaintiff would not be put to any hardship, inconvenience or loss by sale of the defendants' undivided shares as ultimately the shares belonged to them.

6. Having considered all these arguments it is clear that though at the time of passing preliminary decree no order was passed stating in clear terms that ad-interim injunction was not confirmed, it is required to be noted that it is also not stated that it is vacated. When an order is passed unless it is vacated, modified or varied or changed in any other manner, that order continues. That fact is known and this position of law need not be reiterated. The only submission which is really made after tendering the unconditional apology, is that ultimately it is a technical breach for which persons are not required to be sent to jail.

7. The learned Advocate Shri Vyas submitted that the accounts are required to be taken and the mense profits are required to be determined and when that amount is determined it is quite likely that it might be a very high amount. It is, therefore, hardly proper to urge that no loss is likely to incur. Ultimately, whether the loss is occurred or not or whether the plaintiff suffers because of that or not would depend ultimately when the accounts are taken. But the fact remains that the breach is committed. It is quite likely that an illiterate woman may be acting on the advice of the brothers, but the brothers cannot get away so easily by saying that in preliminary decree they were alloted their shares, and they had forgotten about the injunction. They were the litigants throughout, continued as litigants throughout. They appear to be conversant with litigation because so many decrees are passed against them. They have done lot of business which was a partnership concern. It is quite likely that they could not earn in their partnership or ultimately could not pay their debts. But they were very much in the court every time and it was not very difficult to submit application to the Court for permission if they wanted to sell away their undivided share. That permission may or may not have been given depending on the facts.

8. The third factor which is required to be noted is that as soon as the property is sold by a sharer the third party unknown to the family enters. It is quite likely that the plaintiff might have chose to purchase shares. One cannot be sure about that fact. But in all cases when injunctions are granted and breach thereof is committed, if the parties are allowed to go away when they tendered unconditional apology, tendency will grow where injunctions would never be taken seriously. It would always be thought that ultimately what happens in a civil matter Breach of injunction would become normal if on tendering unconditional apology every man is required to be discharged. They would consider it to be a normal matter. The litigants would go away with feelings that the orders of the Court need not be obeyed, when it comes to the issuance of the notice because of some breach of the order of the Court, tender unconditional apology and walk away. The outside world will know nothing about it. Perhaps they will know that he is not punished at all, and that breach is never considered a breach by the Court. It is necessary that every litigant should know that the orders of the Court are required to be obeyed. Unless this is known the rule of law can never prevail. An example is required to be set. There is a tendency and in this Court in various matters contempt petitions are filed and notices are issued. Under these circumstances if the learned City Civil Court Judge has taken the view that the defendants are required to be sent in civil prison for a period of one month, it is hardly the punishment which is required to be interfered with in such a situation which prevails today. However, if an example is required to be set for the first time in such a situation it is not necessary that all the three persons should be sent in civil prison. It is quite possible that the two brothers were managing the affairs and defendant No. 3 Kulsambibi may be acting as per the advice of the brothers. Under these circumstances, defendant No. 3 Kulsambibi need not be sent to jail. I would have normally sent defendant Nos. 1 and 2, the two brothers to civil jail. However, as only an example is required to be set and from the papers it appears that Ibrahimbhai is the person who is active and perhaps the brain behind all transactions and, therefore, if only Ibrabimbhai is sent to civil prison the ends of justice would suffice. Under these circumstances, Appeal from Order No. 315 of 1983 is dismissed. Appeal from Older Nos. 314 and 316 are partly allowed and the order for sending these persons in civil prison, for a period of one month are set aside. The other orders regarding furnishing of particulars and considering the attachment which are part of the order in paragraph (D) of the order, they remain. The defendants will pay the costs of the plaintiff of this Court.

The order of sending defendant No. 1, the appellant of Appeal from Oroer No. 315 of 1983 in civil prison will take effect after a period of eight weeks from today.


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