2000(3) ALL MR 777


Mohiddin Basha Abdul Razak Vs. Municipal Corporation Of Gr.Bombay & Ors.

Appeal From Order No. 1127 of 1990,Notices of Motion (Contempt) No.3261 of 1978,Notices of Motion (Contempt) No.3262 of 1978,Notices of Motion (Contempt) No.4247 of 1978,L.C. Suit No. 4031 of 1978

10th March, 2000

Petitioner Counsel: Mr. A.N. MANIYAR
Respondent Counsel: Mr. P.N. GODGE with Mr. S.B.SHERE, Mr. S.A. SHAIKH

Civil P.C. (1908), O.39 R. 2(A)(i) - Flouting Order of court - Contempt proceedings - Some of respondents not served though impleaded - Some respondents dead - Plaintiff treating contempt proceeding in utmost cavalier manner and not taking seriously - Proceeding cannot be sustained. (Para 7)


JUDGMENT :- This Appeal from Order arises from the Oral Judgment dated 29.10.1990 passed by the City Civil Court at Bombay in three Notices of Motion in L.C.Suit No. 4031 of 1978 filed by the Plaintiff against the Defendants/ Respondents. At the outset I may clarify that the Respondents in the Notices of Motion were not the Defendants in the Suit and they were impleaded in the Notices of Motion.

2. The plaintiff had filed the Suit against the Bombay Municipal Corporation and one Inderjit S. Patel praying for permanent injunction against them, their servants and agents in terms of prayer clause (a) in the Suit. It further appears that he had also taken out three Notices of Motion for various reliefs. The defendants as well as the Respondents have contested the Notices of Motion. It is the main grievance of the Plaintiff that the Defendants and the Respondents have committed breach of the interim orders passed by the Court and therefore, they were guilty of Order 39 Rule 2(A)(1) of C.P.C. They prayed for issuance of Contempt action against them under the said provisions and that they should be punished in accordance with law for committing the contempt of Court by willfully flouting the orders of the Court.

3. It appears that both the parties to the suit have staked their claim around one wooden stall on the foot path of the Corporation. They were litigating in respect of the right and title over the stall. I am told across the bar that the Plaintiff has finally succeeded in establishing his title over the stall. It appears that both the parties are not tired of litigating and both have filed their respective appeals in this Court against the final Judgment and Decree of the City Civil Court. According to me, the plaintiff's right and title appear to have been finally established before the City Civil Court and it would be subject to the scrutiny of this Court. The learned Trial Court has framed the following three points for consideration in the above Notices of Motion :

(1) Whether the plaintiff proves that the defendants and the respondents in notice of motion No.3261 of 1978 on 9.8.1978 and 10.8.1978 at about 7.30 a.m... willfully committed the breach of the order passed by my predecessor on 9.8.1978 and therefore, rendered themselves liable for punishment under Order 39 Rule 2(A)(1) of the C.P.C. ?..........No.

(2) Whether the plaintiff further proves that the defendants and the respondents in notice of motion No. 3362 of 1978 committed willful breach of the order dt. 28th of July 1978 on 29th of August, 1978 and on 2.8.1978 and as such made themselves liable for action under Order 39 Rule 2(A) (1) of the C.P.C. ?........ No.

(3) Whether the plaintiff proves that the defendants and the respondents willfully committed the breach of the order dated 28th of September 1978 on 21st October 1978 by dismantling the bench permanently affixed to the wall of Somabhai Patel building and by throwing wooden plank and fixing their own cupboard and restraining the plaintiff from proceeding to the suit stall and thereby making themselves liable for an action under Order 39 Rule 2(A) (1) of the C.P.C. ?........No.

(4) What Order ?........ As per Order below.

After recording evidence the learned Judge has passed an Order which is impugned in the present Appeal. The question before the learned Judge was whether the defendants and also the respondents were guilty of willfully committing breach of the Order dated 28.7.1978 and 21.10.1978 by dismantling the bench permanently affixed to the wall of Somabhai Patel building and throwing wooden plank and fixing their own cupboard and restraining the plaintiff from proceeding to the suit stall and thereby making themselves liable for an action under Order 39 Rule 2(A)(1) of C.P.C.

4. These are the contempt proceedings. The appellant/plaintiff has treated them in an utmost cavalier manner and has not taken it seriously. The respondent No.1 is not served though impleaded. The original Defendant No. 2 has already expired. Out of remaining respondents the third Respondent in Appeal has also expired. The Respondent Nos. 4, 5 and 6 are the widow and sons of the Respondent No.2. They were not the defendants in the suit. Similarly the Respondents 8 to 14 were not the defendants in the original Suit. As far as the Respondent No.7 is concerned the Appeal appears to have been dismissed. I fail to understand why they were impleaded in the present proceedings. The Respondent Nos.8, 9, 10, 11, 12 and 13 have not been properly described, as their full names are not given. Some of them are referred to even by their nick names from which I do not have any mode to know their correct names. For example, I do not know who is the Bhau Shiv-Sainik or who is Baba Tailor or who is Bhanushali or who is Pyaramiya. A little pain ought to have been taken by the appellant to have impleaded only necessary and proper parties after describing them correctly by giving their full names and addresses. None of them was defendants in the original suit and there was no order of injunction against them. At the outset I therefore hold that they cannot be held guilty of breach of any order passed by the Court in any proceedings where they were not the parties.

5. Shri Maniyar on behalf of the appellant (original plaintiff) has tried his level best to point out small loop-holes in the impugned Judgment. He has taken me through the entire judgment. According to the learned advocate the following eleven loopholes deserve to be considered to demolish the impugned judgment.

1. The findings recorded by the City Civil Court regarding the existence of the stall, size of the stall, description of the stall and which was the subject matter of the suit is wrong.

2. It is the grievance of Shri Maniyar that the learned Judge had mixed up the facts in all the three Notices of Motion and has confused the issues which was a very wrong approach adopted by the Trial Court.

3. Shri Maniyar further pointed out that all the Notices of Motion should have been heard separately and independently and finding should have been recorded separately.

4. There was no difference or contradiction between the pleadings and the evidence and also between the facts and the oral evidence adduced before the learned Judge. There was no major discrepancy in the affidavits in support of the Notices of Motion filed by the Plaintiff.

5. The plaintiff had withstood successfully in the cross-examination and his evidence could not be shattered.

6. The defendants and the Respondents have not adduced any positive and substantial evidence to demolish the case of the Plaintiff.

7. Shri Maniyar pointed out that the learned Judge was wrong in throwing his case on the point of improbable story.

8. Shri Maniyar further pointed out that if the plaintiff had two remedies open, civil or criminal, and if he had opted for one no fault could be found with him as is done by the Trial Court.

9. According to Shri Maniyar a clear-cut case of contempt of Court was proved on the basis of the dates of the orders passed by the trial court.

10. According to Shri Maniyar the observation of the Trial Court that the deceased Respondent No.2 and his wife and his sons were respectable persons and that they could not have indulged into the acts alleged against him is merely a surmise and conjecture which could not have been done by the Court.

On the basis of the aforesaid points of criticism Shri Maniyar has assailed the Judgment of the City Civil Court.

6. I have carefully gone through the well written and reasoned judgment of the learned Judge. The oral judgment runs into about 50 pages. The learned judge has considered and referred to each and every fact on record and it does not appear to have missed any point or any fact or event to be considered. Every conclusion drawn by him he has recorded his reasons therefore. He has considered the oral evidence. I have also gone through the said judgment with the assistance of Shri Maniyar. I am however not able to find any infirmity, illegality or any fault with the judgment of the Trial Court. The learned Judge has considered the probability and improbability of the events or the acts allegedly committed by the defendants/respondents. The learned Judge has pointed out several contradictions and inconsistencies in the pleadings and the evidence of the Plaintiff. It may be that Shri Maniyar might be right in some respect that the facts must have overlapped in all the three matters. I however do not agree with the submissions of the learned advocate that all the three matters should have been independently decided after separately recording evidence. It cannot be said that one fact in one Notice of Motion would be different in other matters. An effect would remain of a fact in the second matter also. There cannot a factual contradiction anywhere. The learned judge has compared the oral evidence recorded in all the matters. It cannot therefore be said that the contradictions or inconsistencies found by the Trial Court were totally baseless or perverse. On the basis of certain observations made by the Trial Court in respect of improbability Shri Maniyar submitted that even many times so called respectable persons would also act in an illegal manner. I agree with the general submission made by Shri Maniyar. In the present case however I agree with the Trial Court that the old housewife of the Defendant No.2 being a middle class housewife had not come on the street and committed such acts as alleged. I agree with the learned Judge that the old lady could not have acted in the manner she perhaps must be in the kitchen at that time. Similarly the learned Judge has found that the Defendant No.2 who is an old man and heart patient could not have dared to do act on the foot path. He finally succumbed to heart disease and died.

7. Considering the over all judgment of the Trial Court I am not able to find any illegality, infirmity or any perversity. Some small loop holes could be made out by any one but I have taken an over all view of the matter and I am not able to upset the said judgment on some trifling inconsistencies or contradictions. The plaintiff has finally succeeded in the City Civil Court. His main grievance was against the deceased respondent in the present appeal. He is no more in this world. His sons were not the defendants in the suit. The learned judge has followed two judgments on this point that when the parties were not injuncted they cannot be held guilty of breach of an order under Order 39 Rule 2 of C.P.C. I fail to understand why the Plaintiff is after the blood of the widow and the surviving sons of the deceased whatever enmity he might have had against the deceased that must end along with the death of the deceased. There is absolutely no substance in the Appeal, which is dismissed with no order as to costs.

Appeal dismissed.