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Renu Agarwal and Ors. Vs. Sushila Devi Agarwal - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
AppellantRenu Agarwal and Ors.
RespondentSushila Devi Agarwal
.....23rd september, 2016 i.p.mukerji, j. this contempt application arises out of an order passed in an interim application in a suit. the suit was instituted in this court by the alleged trustees of the charitable trust, “maharshi menhi charitable trust”, registered as a charity under the income tax act, 1961. they question, the appointment of the defendants as trustees and for appointment of a suitable person or persons as trustees. they also ask for a scheme to be framed by this court to carry out the purposes of the trust. this suit was instituted in the year 2013. in aid in the suit an interim application was taken out by the plaintiffs asking for an order restraining the defendants from dealing with or disposing of the trust properties. on this application, on 10th may, 2013, this.....

IN THE HIGH COURT AT CALCUTTA Special Civil Jurisdiction (Contempt) Original Side CC No.38 of 2014 Renu Agarwal & ORS.versus Sushila Devi Agarwal For the PetitioneRs.- Mr.M.S.Tiwari, Adv.Mr.R.K.Tiwari, Adv.For the defendants: - Mr.S.P.Sarkar, Sr.Adv.Mr.Subhadeep Sen, Adv.Mr.Bimalendu Das, Adv.Judgement On: - 23rd September, 2016 I.P.MUKERJI, J.

This contempt application arises out of an order passed in an interim application in a suit.

The suit was instituted in this court by the alleged trustees of the Charitable Trust, “Maharshi Menhi Charitable Trust”, registered as a charity under the Income Tax Act, 1961.

They question, the appointment of the defendants as trustees and for appointment of a suitable person or persons as trustees.

They also ask for a scheme to be framed by this Court to carry out the purposes of the trust.

This suit was instituted in the year 2013.

In aid in the suit an interim application was taken out by the plaintiffs asking for an order restraining the defendants from dealing with or disposing of the trust properties.

On this application, on 10th May, 2013, this Court passed an order recording an assurance on behalf of the defendants, made by their counsel that the property in Agarpara where the registered office of the trust was situated would not be dealt with or disposed of by the defendants.

Furthermore, its nature and character would not be changed.

This court specifically recorded that in view of this assurance no interim order was called for.

The present application is a contempt application accusing the defendants of wilful disobedience to the order dated 10th May, 2013.

Photographs have been annexed to the petition to show that after the order was passed the building at Agarpara was substantially demolished.

No date of demolition is mentioned.

But paragraph – 8 of the affidavit-in- opposition to the contempt application of the fiRs.defendant (alleged contemnor no.1) says that a part of the building collapsed on 10th November, 2013.

The interim order was made on 10th May, 2013.

This contempt petition was filed on 1st April, 2014.

On 2nd May, 2014 a contempt rule was issued.

Thereafter directions were made for filing of affidavits in the contempt application.

However, on 7th November, 2014, whilst this contempt application was pending, the interim application was dismissed by a learned single Judge of this court.

The plaintiffs preferred an appeal from the said order.

The order of the learned single Judge was affirmed on appeal on 8th October, 2015.

When the alleged violation of this order was made the order was in force.

The order dated 10th May, 2013 was in force when the contempt application was filed and the contempt rule issued.

When the contempt application came up for hearing before me, the interim order stood discharged because the interim application was dismissed.

Now, the question is: What is the effect of an order of injunction, subsequently discharged?.

Is the order of injunction set aside from the date it was passed and the effect is that it never existed at any point of time?.

Or, was the order good till it was set aside and any violator of this order liable to be punished for disobedience to it?.

It is very instructive to discuss the authorities on the subject.

In M/s Kakkad Sales Agency v.

Om Prakash Juluka reported in 1986 (2) CLJ219 the facts of the case were similar to the one at hand.

An interim order of injunction was passed by a learned Civil Court on 9th August 1979.

There was alleged violation of that order.

An application under Order 39 Rule 2A of the Code of Civil Procedure was taken out on 2nd May, 1980 by the plaintiff against the defendant.

The application on final hearing was dismissed on 11th September, 1980.

The division bench held as follows:- “ for violation of such an order as made under Rule 2A or for disobedience of the same, there may be punishment by attachment and order for sending the wrong doer to civil prison and such order of sending to civil prison is not dependent on attachment of property.

The court under Rule 2A has also the power to punish the offender for a continuing wrong, and breach, if any, caused would continue and the commission of such a breach in the past but not on the date of the order or the application for the same, would be no defence.

In fact, the dismissal of a suit or appeal would be no bar for taking appropriate action for disobedience.” In Sahib Zada Abdul Bais Khan v.

Budh Singh Bapna reported in AIR1973Rajasthan 201 Mr.Justice Beri of the Rajasthan High Court looked upon this principle of punishing the violator of an order, even though the order had been subsequently discharged, as an exercise to “ vindicate the supremacy of the rule of law” and to uphold the “authority” of the court.

In Kishore Chandra Jagadev Ray v.

Puri Municipality reported in AIR1988Orissa 284 an application under Order 39 Rule 2A was filed complaining of disobedience to an order of injunction.

This injunction order was passed in an appeal.

The appeal was subsequently disposed of, discharging the injunction.

The point arose whether the injunction order could be enforced.

The Court following the decision Eastern Trust Company v.

Makenzie Mann & Co.LTD.reported in AIR1915PC106ruled that an injunction order had to be obeyed as long as it was in force.

This view was maintained by the Supreme Court in Tayabbhai M.

Bagasarwalla and another v.

Hind Rubber Industries PVT.LTD.etc.reported in AIR1997SC1240 It said: “29.

The correct principle, therefore, is the one recognised and reiterated in Section 9-A - to wit, where an objection to jurisdiction of a civil court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the fiRs.instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interim orders as may be called for in the facts and circumstances of the case.

A mere objection to jurisdiction does not instantly disable the court from passing any interim ordeRs.It can yet pass appropriate ordeRs.At the same time, it should also decide the question of jurisdiction at the earliest possible time.

The interim orders so passed are orders within jurisdiction when passed and effective till the court decides that it has no jurisdiction to entertain the suit.

These interim orders undoubtedly come to an end with the decision that this Court had no jurisdiction.

It is open to the court to modify these orders while holding that it has no jurisdiction to try the suit.

Indeed, in certain situations, it would be its duty to modify such orders or make appropriate directions.

For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit.

But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the court on the question of jurisdiction.” An argument is also advanced that whatever may have been the ruling of the Supreme Court, the Division Bench of this court, of the Rajasthan and Orissa High Courts, Order 39 Rule 2A is different from the contempt jurisdiction of the court.

Contempt does not lie against an order which has subsequently been set aside.

All this controveRs.has been put to rest in the judgement of Mr.Justice Arijit Pasayat in Prithawi Nath Ram v.

State of Jharkhand and Others reported in AIR2004SC4277 a case under the Contempt of Courts Act, 1971 where the following dictum was pronounced by his lordship: “9.

In a given case, even if ultimately the interim order is vacated or relief in the main proceeding is not granted to a party, the other side cannot take that as a ground for disobedience of any interim order passed by the court.” That an application under Order 39 Rule 2A of the Code and one under the Contempt of Courts Act, 1971 were remedies available to a party complaining of breach of an injunction order was laid down in Welset Engineers and Another v.

Vikas Auto Industries and Another reported in (2015) 10 SCC609 However, in Samee Khan v.

Bindu Khan reported in AIR1998SC2765the Supreme Court felt that if the order stood discharged, the punishment for its violation when it was in force should be less severe.

The assurance of counsel engaged by the defendants as recorded in the order dated 10th May, 2013 was nothing but an undertaking given to the court by the defendants through their counsel.

I reject Mr.Sarkar’s contention that this assurance does not amount to an undertaking.

There is no particular form prescribed for an undertaking in the Contempt of Courts Act, 1971 or in the rules under it framed by this court.

The Oxford dictionary defines undertaking as a formal pledge or promise.

This is what was made before this court by the defendants to dissuade the court from passing a formal order of injunction.

The Supreme Court approved this kind of an undertaking in Babu Ram Gupta v.

Sudhir Bhasin and another reported in AIR1979SC1528when it said that it could be incorporated in the order.

In other words, the undertaking of the client or counsel could be recorded in the order.

An undertaking to this court was not to deal with the property or change its nature and character.

This is exactly what has been done.

The photographs annexed to the petition show beyond any reasonable doubt that the defendants have indulged in the most daring and defiant acts.

The photograph at page 48 shows large pieces of bricks strewn on the compound or yard.

The window panes have been removed leaving cavities in the walls.

The picture at page 48 tells a similar tale of doors having been removed from the building leaving hollows in the wall.

The pictures from page 50 to 61 make it absolutely clear that the whole building was attempted to be demolished and that huge parts of it were actually severed from it.

The photographs annexed to the affidavit-in-opposition in an effort to demonstrate that parts of the building came down on its own, in fact, show in a clearer way how parts of a very old building were deliberately pulled down.

All this happened when the order of injunction was in force.

For a moment I do not believe the submission made by Mr.Sarkar that the building was very old and parts of it came down due to natural causes.

It was deliberately done by the defendants.

I reject the contention of Mr.Sarkar that even assuming that the acts had been done it was not done wilfully and that the case of the petitioner had not been proved beyond reasonable doubt in this quasi criminal contempt proceeding.

The acts of contempt are glaring and stare on the face of the Court.

No regret, no apology has been tendered by any of the defendants.

They cannot get away with their acts.

Since this order of 10th May, 2013 has been discharged subsequently I am not taking as haRs.a view as ought to have been taken with regard to these blatant acts of contempt, following Samee Khan v.

Bindu Khan reported in AIR1998SC2765 I hold each of the contemnors guilty of contempt.

I direct them to collectively pay a fine of Rs.50,000/- (rupees fifty thousand) into the treasury of the State Government by 8th November, 2016 and produce the receipt before the Registrar Original Side.

In default, the Registrar Original Side will cause a warrant of commital in accordance with Appendix II of the Calcutta High Court Contempt of Courts Rules, 1975 to be issued against each of the respondents, to undergo three months’ simple imprisonment in the prison nearest to his or her residence.

This contempt application is accordingly disposed of.

Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.


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