IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION NO. 1751 of 2011 In APPEAL FROM ORDER NO. 86 of 2009 With CIVIL APPLICATION NO. 10250 of 2011 In MISC.CIVIL APPLICATION NO. 1751 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH =============================================
1. Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes
2. To be referred to the Reporter or not ?
Yes
3. Whether their Lordships wish to see the fair copy of the judgment ?
No
4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No
5. Whether it is to be circulated to the civil judge ?
No ============================================= BHARATBHAI JIVRAJBHAI....Applicant(s) Versus CHAGANBHAI SAMABHAI &
6....Opponent(s) ============================================= Appearance:
MR NAVIN PAHWA for M/S THAKKAR ASSOC. for the Applicant NOTICE SERVED BY DS for Opponents No.1, 6 - 7 MR ZUBIN F BHARDA for Opponent No. 2 MR YATIN OZA, SR. ADVOCATE for MR MB GOHIL for Opponents No. 2 - 5 ============================================= CORAM:
HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/12/2012 CAV JUDGMENT [1.0] Present Miscellaneous Civil Application has been preferred by the applicant herein original appellant original plaintiff under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC ) complaining about the breach of injunction granted by this Court vide judgment and order dated 29.06.2009 passed in Appeal From Order No.86/2009, by respondent Nos.1 to 5 and 7 herein.
[2.0] Facts leading to the present Miscellaneous Civil Application in nut-shell are as follows:
[2.1] That the applicant herein original plaintiff instituted a suit against respondents for specific performance of Agreement to Sell regarding suit land in question. That in the said suit the applicant original plaintiff submitted the application for interim injunction below Exh.5 restraining the defendants, their agents, servants from transferring and/or alienating the suit land in favour of any other person or to create any charge over the suit land pending the suit. That the learned trial Court by order dated 31.12.2008 dismissed the said application Exh.5 and refused to grant injunction as prayed for.
[2.2] That being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh.5 in dismissing the same and refusing to grant the injunction as prayed for, the applicant herein original plaintiff preferred Appeal From Order No.86/2009 with Civil Application No.2559/2009. That in the said Appeal From Order, respondent Nos.1 to 5 herein appeared through their advocate Shri K.V. Shelat. That the said Appeal From Order was fully heard by this Court and after making submissions, the learned advocates appearing on behalf of respective parties, more particularly, the learned advocate appearing on behalf of the contesting respondent Nos.1 to 5 original defendants stated at the bar that he does not invite any further reasoned order in support of allowing the said Appeal From Order and directing the parties to maintain status-quo i.e. restraining the original defendants from transferring/alienating the suit property in question in any manner whatsoever till final disposal of the suit. Considering the above stand taken by the learned advocate appearing on behalf of the contesting respondent Nos.1 to 5 original defendants and considering the facts and circumstances of the case, more particularly, when the execution of the Agreement to Sell was not disputed by the defendants original land owners and when they themselves filed the suit for cancellation of Agreement to Sell, this Court was of the opinion that it will be in the fitness of things that respondents herein- original defendants are restrained from transferring/alienating the suit property in question till final disposal of the suit, otherwise the third party rights will be created. In view of the statement of the learned advocates appearing on behalf of the respective parties recorded hereinabove, this Court did not pass any further reasoned order. Considering the above, this Court by judgment and order dated 29.06.2009 allowed the aforesaid Appeal From Order No.86/2009 with Civil Application No.2559/2009 and quashed and set aside the order dated 31.12.2008 passed by the learned trial Court below Exh.5 in Special Civil Suit No.492/2007 and allowed the Exh.5 application submitted by the applicant herein original plaintiff and consequently granted the injunction as prayed for below Exh.5 and restrained the defendants from transferring/alienating the suit land in question in any manner whatsoever till the final disposal of the suit.
[2.3] It appears that despite the above injunction granted by this Court vide judgment and order dated 29.06.2009 passed in Appeal From Order No.86 of 2009 and allowing the application Exh.5 restraining the defendants, their servants, agents from transferring/alienating the suit land in question in any manner whatsoever till the final disposal of the suit, respondents herein original defendants executed the Agreement to Sell dated 08.10.2009 in favour of one Jayantibhai Bhalabhai Patel and Jimiben Bhalabhai Patel by accepting a sum of Rs.30 lakhs, which is absolutely in breach of the injunction granted by this Court. Hence, the applicant herein original appellant plaintiff has preferred the present Miscellaneous Civil Application requesting to take appropriate action against the concerned defendants for committing breach of injunction granted by this Court.
[3.0] Shri Pahwa, learned advocate appearing on behalf of the applicant original plaintiff has vehemently submitted that by judgment and order dated 29.06.2009 passed by this Court in Appeal From Order No.86 of 2009 with Civil Application No.2559/2009 in Appeal From Order No.86 of 2009, this Court has allowed the said Appeal From Order by allowing the application Exh.5 and granting injunction as prayed for in Exh.5 application restraining the respondents original defendants from transferring/ alienating in any manner whatsoever the suit land in question till the final disposal of the suit. It is submitted that even the said order was passed by this Court after hearing the learned advocates appearing for respective parties and even recording the statement made by the learned advocate appearing on behalf of the respondents herein original defendants that he does not invite any reasoned order in support of allowing the Appeal From Order directing the parties to maintain status-quo i.e. restraining original defendants from transferring/alienating the suit property in question in any manner whatsoever till final disposal of the suit. It is submitted that despite the above, respondent Nos.1 to 5 and 7 herein original defendant Nos.1 to 5 and 7 have executed the Agreement to Sell dated 08.10.2009 in favour of one Jayantibhai Bhalabhai Patel and Jimiben Bhalabhai Patel by accepting a sum of Rs.30 lakhs, which is absolutely in breach of the injunction granted by this Court. It is further submitted by Shri Pahwa, learned advocate appearing on behalf of the applicant that even by notice dated 01.06.2010, the concerned respondents were informed with respect to the breach of the injunction granted by this Court and infact were called upon to restore the position which was prevailing prior to execution of the Agreement to Sell i.e. by cancelling the Agreement to Sell dated 08.10.2009 which is in breach of the injunction. However, still the Agreement to Sell is not cancelled and the position which was prevailing prior to execution of the Agreement to Sell is not restored and have continued breach of injunction. Therefore, it is requested to take appropriate steps against the concerned respondents defendants for breach of injunction granted by this Court in exercise of powers under Order 39 Rule 2A of the CPC.
[3.1] Shri Pahwa, learned advocate appearing on behalf of the applicant original plaintiff has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Patel Rajnikant Dhulabhai and Anr. v. Patel Chandrakant Dhulabhai and Ors. reported in (2008)14 SCC 561.
It is submitted by Shri Pahwa, learned advocate appearing on behalf of the applicant that as held by the Hon'ble Supreme Court in the said decision, it is the duty of the Courts to maintain their dignity and majesty of law and therefore, Court should not hesitate to exercise powers of punishment if it so required in the interest of administration of justice and compliance with the Court's orders.
[3.2] Now, so far as the unconditional apology tendered by the concerned defendants now tendered by separate affidavit-in-reply, it is submitted by Shri Pahwa, learned advocate appearing on behalf of the applicant that as such the apology tendered by the concerned defendants lacks bonafide and is lacking penitence or regret and therefore, it is requested not to accept the same. It is submitted that on one hand though subsequently the concerned defendants have tendered apology, however, on the other hand they do not want to restore the position which was prevailing prior to execution of the Agreement to Sell by cancelling the said Agreement to Sell which is in breach of injunction and thereby have persisted and/or continued the breach of injunction. Therefore, relying upon the aforesaid decision of the Hon'ble Supreme Court in the case of Patel Rajnikant Dhulabhai and Anr. (Supra) (Para 77), it is requested to allow the present application and punish the respondent Nos.1 to 5 and 7 herein.
[4.0] Present application is opposed by Shri Yatin Oza, learned Senior Advocate appearing on behalf of respondent Nos.2, 4 and 5. An affidavit-in-reply is filed on behalf of respondent Nos.2, 4 and 5 affirmed by respondent No.4 Kamleshbhai Mithabhai. However, it appears that subsequently respondent No.2 has appeared through one another advocate Shri Zubin Bharda and a separate affidavit is filed by him which shall be dealt with and considered hereinafter.
[4.1] Shri Y.N. Oza, learned counsel appearing on behalf of the contesting respondent Nos.2, 4 and 5 (may not be for respondent No.2) has submitted that concerned respondents defendants have tendered unconditional apology while submitting the affidavit-in-reply dated 10.02.2012 and therefore, it is requested to accept the said unconditional apology. Shri Oza, learned counsel appearing on behalf of respondent Nos.2, 4 and 5 has requested to permit him to delete para V of the affidavit-in-reply dated 10.02.2012 and has stated at the Bar that he does not press the ground mentioned in para V of the said affidavit-in-reply. Accordingly, the concerned respondent Nos.2, 4 and 5 are permitted to delete para V of the affidavit-in-reply dated 10.02.2012 and para V of the affidavit-in-reply dated 10.02.2012 filed for and on behalf of respondent Nos.2, 4 and 5 and affirmed by respondent No.4 stands deleted.
[4.2] Shri Y.N. Oza, learned counsel appearing on behalf of respondent Nos.2, 4 and 5 has vehemently submitted that in the facts and circumstances of the case, Order 39 Rule 2A of the CPC would not be applicable and/or available to the applicant, as final order has been passed by this Court disposing of the Appeal From Order and it cannot be said to be interim order and/or interim injunction pending Appeal From Order. It is further submitted by Shri Oza, learned counsel that in any case when the application Exh.5 has been allowed by this Court granting injunction, while finally disposing of the Appeal From Order as such it would be an injunction granted by the learned trial Court and therefore, applicant has to approach the trial Court for alleged breach of injunction for any action under Order 39 Rule 2A of the CPC.
[4.3] It is further submitted by Shri Oza, learned counsel appearing on behalf of the contesting respondents defendants that as the applicant has an alternative remedy available by way of initiating the contempt proceedings, the proceedings under Order 39 Rule 2A of the CPC cannot be invoked and therefore, it is requested not to entertain the present application submitted for action under Order 39 Rule 2A of the CPC.
[4.4] Shri Oza, learned counsel appearing on behalf of contesting respondent Nos.2, 4 and 5 has also opposed the present application on the ground that same is barred by limitation. It is submitted that as such the applicant was required to file and/or initiate proceedings under Order 39 Rule 2A of the CPC within a period of one year from the alleged breach of injunction and/or at the most from the date of notice dated 01.06.2010 i.e. from the date of knowledge of breach of injunction. It is submitted that present application has been preferred after a period of one year which is barred by law of limitation. Shri Oza, learned counsel has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Pallav Sheth v. Custodian and Ors. reported in (2001) 7 SCC 549 as well as the decision of the Division Bench of this Court in the case of Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society, Ahmedabad & Ors. reported in 1981 GLR 165 in support of his above submissions.
[4.5] Shri Oza, learned counsel has further submitted that the proceedings under Order 39 Rule 2A of the CPC for breach of injunction are required to be considered akin to the proceedings under the Contempt of Courts Act and therefore, the applicant was required to initiate the proceedings for breach of injunction within a period of one year either from the date of breach of injunction or from the date of knowledge of the breach of injunction i.e. 01.06.2010. In support of his above submission, he has relied upon the decision of the Hon'ble Supreme Court in the case of Food Corporation of India v. Sukh Deo Prasad reported in (2009) 5 SCC 665 (Para 38).
[4.6] Shri Oza, learned counsel appearing on behalf of the contesting respondents has further submitted that even on merits also the present application deserves to be dismissed as, as such there is no breach of injunction. It is submitted that the concerned defendants have merely executed an Agreement to Sell which cannot be said to be a transfer and/or alienation and therefore, as such there is no breach of injunction. It is submitted that even there is no question of creating any charge by executing Agreement to Sell as there is no transfer of ownership and/or possession and there is no transfer in the eye of law. It is submitted that Agreement to Sell is merely an intention to transfer the property by executing banakhat/Agreement to Sell and the same cannot be said to be creating the charge and therefore, there is no breach of injunction committed by the contesting respondents. In support of his above submission, he has relied upon the definition of charge as mentioned in the Black's Law Dictionary.
[4.7] By making above submissions, it is requested to accept the unconditional apology tendered by respondent Nos.2, 4 and 5 and if this Court is not inclined to accept unconditional apology, in that case, making above submissions and relying upon above decisions, it is requested to dismiss the present application.
[5.0] It is to be noted that during the course of hearing of the present application and after the affidavit-in-reply dated 10.02.2012 which was filed for and on behalf of respondent Nos.2, 4 and 5 affirmed by respondent No.4 Kamlesh Mithabhai Parmar, respondent No.2 Motibhai Shamabhai Parmar appeared through another advocate Shri Zubin Bharda and has filed a separate affidavit-in-reply through him dated 29.02.2012 submitting that through oversight and without realizing the implications of the order, he has signed the Agreement to Sell dated 08.10.2009. It is stated that upon realizing that breach of injunction of order of this Court has been committed, he tenders unconditional apology. He has also stated in the said affidavit-in-reply that he has also simultaneously cancelled the said Agreement to Sell and has already addressed a letter to Shri Jayantibhai Bhalabhai Patel and Smt. Jimiben Bhalabhai Patel informing them about the cancellation of the Agreement to Sell. He has also produced on record the communication dated 29.02.2012 addressed by respondent No.2 to the aforesaid Shri Jayantibhai Bhalabhai Patel and Smt. Jimiben Bhalabhai Patel.
[5.1] To the aforesaid affidavit-in-reply filed by respondent No.2 affirmed by respondent No.2 himself, Shri Oza, learned counsel appearing with Shri M.B. Gohil, learned advocate, who had already appeared on behalf of respondent No.2, has stated that still he appears on behalf of said respondent No.2.
[5.2] Be that as it may, learned advocates might have inter-se dispute, it is to be noted that affidavit-in-reply filed by respondent No.2 still is on record and holds the field therefore, the affidavit-in-reply is required to be considered by this Court while considering the present application.
[6.0] Heard the learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that by judgment and order dated 29.06.2009 passed in Appeal From Order No.86 of 2009 with Civil Application No.2559 of 2009, this Court allowed the said Appeal From Order and quashed and set aside the order dated 31.12.2008 passed by the learned trial Court below Exh.5 in Special Suit No.492 of 2007 by which the learned trial Court dismissed the said interim injunction application below Exh.5 and consequently this Court allowed the application Exh.5 submitted by the applicant herein original plaintiff and consequently restrained the respondents herein original defendants from transferring and/or alienating the suit land in question in any manner whatsoever till final disposal of the suit. It is required to be noted that as such in the application Exh.5, the original plaintiff prayed for interim injunction during the pendency of the suit restraining the respondent Nos.1 to 5 herein from transferring the suit land in favour of any other person or to create any charge over the suit land which was refused by the learned trial Court and in an Appeal From Order against the order below Exh.5, this Court by judgment and order dated 29.06.2009 allowed the said Appeal From Order and granted the injunction as prayed for by specifically restraining the respondents herein original defendants from transferring and/or alienating the suit land in question in any manner whatsoever till final disposal of the suit. It is required to be noted that in the said AFO, the respondent Nos.1 to 5 herein original defendant Nos.1 to 5 appeared through their advocate and they submitted that they do not invite any reasoned order in support of allowing the said Appeal From Order and directing the parties to maintain status-quo i.e. restraining the original defendants from transferring and/or alienating the suit property in question in any manner whatsoever till the final disposal of the suit. It is an admitted position that despite the aforesaid interim injunction and in breach of the interim injunction passed by this Court, respondent Nos.1 to 5 herein original defendant Nos.1 to 5 have executed an Agreement to Sell in favour of one Jayantibhai Bhalabhai Patel and Jimi Jayantibhai Patel for a sale consideration of Rs.30 lakhs on 08.10.2009, in respect of the suit land for which there is an interim injunction, by accepting Rs.30 lakhs and therefore, the present application is preferred by the applicant herein original plaintiff for an appropriate order under the provisions of Order 39 Rule 2A of the CPC for the willful and deliberate disobedience of order dated 29.06.2009 passed by this Court in Appeal From Order No.86 of 2009.
[6.1] The present application is opposed by Shri Oza, learned Counsel appearing on behalf of the contesting respondent Nos.2, 4 and 5 (it is reported that during the pendency of the present proceedings, the original defendant Nos.1 and 3 have expired) mainly on the ground that the present application for breach of injunction is beyond the period of limitation as the same has been filed after a period of one year from the date of the alleged breach of injunction and/or atleast from the date of the notice issued by the original plaintiff alleging the alleged breach of injunction and also on the ground that by executing the Agreement to Sell alone there is no breach of injunction as the title has not been passed and it cannot be said that any charge has been created on the property by executing the Agreement to Sell. It is the case on behalf of the contesting respondents that as observed by the Hon ble Supreme Court in the case of Pallav Seth (Supra), the proceedings under Order 39 Rule 2A of the CPC breach of injunction are akin to the proceedings under the Contempt of Court s Act, the period of limitation as prescribed under the Contempt of Court s Act would be applicable. In support of his above submission, he has also relied upon the decision of the Division Bench of this Court in the case of Dinesh A. Parikh (Supra). The aforesaid has no substance and cannot be accepted. Merely because the proceedings under Order 39 Rule 2A of the CPC for breach of injunction are considered to be akin to the proceedings under the Contempt of Court s Act, the period of limitation as prescribed under Section 20 of the Contempt of Court s Act would not be applicable. The Hon ble Supreme Court in the case of Pallav Seth (Supra) has not held that the period of limitation prescribed under Section 20 of the Contempt of Court s Act would be applicable in a proceeding for breach of injunction under Order 39 Rule 2A of the CPC.
Similarly, even no such view has been expressed by the Division Bench of this Court in the case of Dinesh A. Parikh (Supra). Under the circumstances, the contention on behalf of the contesting respondents that the present application is barred by law of limitation i.e. beyond the period of one year either from the date of alleged breach of injunction i.e. execution of the Agreement to Sell or even from the date of knowledge i.e. from the date of issuance of the notice upon the defendants alleging breach of injunction cannot be accepted. No such period of limitation is prescribed for initiation of the proceedings for breach of injunction under Order 39 Rule 2A of the CPC which is provided under Section 20 of the Contempt of Court s Act. Under the circumstances, the contention on behalf of the contesting respondent Nos.2, 4 and 5 that even for initiating the proceedings for breach of injunction under Order 39 Rule 2A of the CPC, the application is to be submitted within a period of one year as provided under Section 20 of the Contempt of Court s Act cannot be accepted. So long as the breach of injunction continues the aggrieved party in whose favour there is an injunction can initiate the proceedings for breach of injunction under Order 39 Rule 2A of the CPC.
[6.2] Now, so far as the contention on behalf of the contesting respondents that as such there is no breach of injunction as the contesting respondents defendants executed only an Agreement to Sell, which cannot be said to be transfer and/or alienating the suit property and/or creating a charge, the aforesaid has no substance. As such by executing the Agreement to Sell in favour of Jayantibhai Patel and Jimiben Patel, the original defendants against whom there was an injunction not to transfer and/or alienate the suit property in any manner whatsoever, created the right in favour of those persons to pray for specific performance of the same and even created interest in their favour by accepting the huge sum of Rs.30 lakhs. In the case of Patel Rajnikant Dhulabhai and Anr.(Supra), the Hon ble Supreme Court has specifically held that entering into an Agreement to Sell with respect to disputed property for which part of the consideration was also accepted, is creation of third party right.
[6.3] Even considering the definition of the word charge as per the Black s Law Dictionary, charge means any encumbrance, lien or claim; a burden or duty; a liability.
As stated hereinabove, this Court by judgment and order dated 29.06.2009 passed in Appeal From Order No.86 of 2009 allowed the application Exh.5 submitted by the applicant herein original plaintiff and restrained the original defendants from transferring and/or alienating the suit land in question in any manner whatsoever till the final disposal of the suit and despite the same and in breach of the injunction, the original defendants have entered into an Agreement to Sell with respect to the suit land for which there is an injunction by accepting a huge sum of Rs.30 lakhs. Under the circumstances, it cannot be said that by executing an Agreement to Sell in favour of Jayantibhai Patel and Jimiben Patel, there is no breach of injunction as sought to be contended on behalf of the contesting respondents original defendants. Under the circumstances, it is to be held and accordingly it is held that the original defendants have committed breach of injunction granted by this Court for which they are liable for appropriate order/action for breach of injunction under Order 39 Rule 2A of the CPC. At this stage it is required to be noted that original defendant Nos.1 and 3 have expired during the pendency of the present proceedings and Civil Application No.10250 of 2011 has been filed by the applicant herein to bring the heirs of the respondent Nos.1 and 3 on record. However, it is required to be noted that at the relevant time neither heirs of original defendant Nos.1 and 3 respondent Nos.1 and 3 herein were party to the suit or even the Appeal From Order nor they are party to the Agreement to Sell and therefore, no action can be taken against the heirs of original defendant Nos.1 and 3. Under the circumstances, no order is required to be passed against the heirs of respondent Nos.1 and 3 herein original defendant Nos.1 and 3 for breach of the injunction granted by this Court.
[6.4] Now, so far as the request made by Shri Oza, learned Counsel appearing on behalf of the remaining contesting respondents i.e. the defendants who have executed the Agreement to Sell in breach of the injunction to accept the apology/unconditional apology is concerned, the same is half-hearted and only with a view to get out of any order/action for breach of injunction. It appears to the Court that the original defendants have taken the court proceedings and the interim injunction against them very lightly. It is also required to be noted that even when the applicant herein original plaintiff served a legal notice upon them alleging breach of injunction and requesting them to restore the position prevailing prior to the execution of the Agreement to Sell and to cancel the Agreement to Sell, still the defendants did not take any action to salvage the situation and restore the position which was prevailing prior to execution of Agreement to Sell and even no efforts were made by them to cancel the said Agreement to Sell. It is also required to be noted that even the contesting surviving respondents defendants did not tender unconditional apology at the earliest and even they contested the application on merits even without filing the affidavit-in-reply and by making oral submissions and that too raising the technical defence that the application is barred by law of limitation and this Court prima facie negatived the same by passing a reasoned order dated 27.01.2012 and overruling the objections raised by the contesting respondents and having prima facie satisfied that the concerned respondents have committed the breach of injunction, issued show-cause notice upon respondent Nos.2, 4, 5 and 7 to show cause whey they should not be detained in civil prison for disobedience for non-compliance of order dated 29.06.2009 passed in Appeal From Order No.86 of 2009 and the said notice was made returnable on 03.02.2012. At that stage also, the contesting respondents did not thought it fit to tender unconditional apology. On the contrary they challenged the issuance of the show-cause notice for breach of the injunction by which they were called upon to show-cause why they should not be detained in civil prison and they approached the Hon ble Supreme Court by way of Special Leave to Appeal (Civil) No.4186 of 2012 and the Hon ble Supreme Court by order dated 02.02.2012 disposed of the said Special Leave to Appeal by observing that they must file proper reply to the show-cause notice and thereafter the contempt petition be decided expeditiously. Only thereafter by filing the affidavit-in-reply, they have stated that they tender unconditional apology for entering into Agreement to Sell dated 08.10.2009. It is also required to be noted at this stage that infact initially respondent No.2 herein original defendant No.2 appeared through another advocate Shri Zubin Bharda who stated that upon realizing that breach of injunction order of this Court has been committed, he tendered unconditional apology and also simultaneously cancelled the Agreement to Sell. He also further stated that he has already addressed a letter informing about cancellation of Agreement to Sell to Shri Jayantibhai Patel and Jimiben Patel. That despite the above, learned advocate Shri Gohil stated at the Bar that he has instruction to appear on behalf of respondent No.2 also and Shri Oza, learned Counsel appearing on behalf of the said respondents has stated at the Bar that original respondent No.2 now disowns the said affidavit dated 29.02.2012 and he wants to withdraw the same. Therefore, the respondent No.2 was called in person and he stated at the Bar that he does not know what is stated in the affidavit. He has also stated at the Bar that whoever pays the more amount he will file affidavit in his favour. This is how the court proceedings are treated by the respondents. As stated herein above, the contesting respondents have treated and considered the injunction granted by this Court as well as the Court proceedings very lightly and therefore, this Court is of the opinion that unconditional apology now tendered lacks bonafide and has been tendered only with a view to get out of any order that may be passed by this Court in the present proceedings for breach of injunction.
[6.5] Identical question came to be considered by the Hon ble Supreme Court in the case of Patel Rajnikant Dhulabhai and Anr. (Supra). It is observed and held by the Hon ble Supreme Court in the said decision that apology is neither a weapon of defence to purge guilty of their offence, nor is it intended to operate as a universal panacea, it is intended to be evident of real contriteness. In paras 75 to 77, the Hon'ble Supreme Court has held as under:
75. It is well settled that an apology is neither a weapon of defence to purge the guilty of their offence, nor it is intended to operate as a universal panacea, it is intended to be evidence of real contriteness (vide M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur; M.B. Sanghi v. High Court of Punjab & Haryana).
76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot, a three-Judge Bench of this Court had an occasion to consider the question in the light of an apology as a weapon of defence by the contemnor 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. : (Ashok Khot case, SCC p.17, para 32)
32. ...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 slapper 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.
The Court, therefore, rejected the prayer and stated: (SCC p.17, para 31)
31. Apology is an act of contrition. Unless apology is offered at the 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.
Similar view was taken in other cases also by this Court.
77. 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 contemnors 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 contemnors 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.
[6.6] Considering the aforesaid decision of the Hon ble Supreme Court as well as the facts and circumstances of the case narrated herein above and as unconditional apology has not be tendered at the earliest and the manner in which the court proceedings and the injunction are considered lightly, it appears to the Court that the so-called apology has been tendered as a tactful move to get out of any order that may be passed by this Court in the present proceedings for breach of injunction.
[6.7] Now, the next question which is posed for consideration of this Court is what punishment should be imposed upon the respondents for breach of the injunction under Order 39 Rule 2A of the CPC?
In the case of Patel Rajnikant Dhulabhai and Anr. (Supra), the Hon ble Supreme Court has observed that punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken. However, 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. It is further observed that if for proper administration of justice and to ensure due compliance with 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.
[7.0] In view of the above and for the reasons stated above, present application succeeds. It is held that respondent Nos.2, 4, 5 and 7 (surviving respondents defendants) have deliberately and willfully committed the breach of injunction granted by this Court by order dated 29.06.2009 passed in Appeal From Order No.86 of 2009 and therefore, are directed to undergo simple imprisonment for a term of one week i.e. seven days and are also directed to pay fine which is quantified at Rs.1 lakh each to be deposited with the Registry of this Court within a period of eight weeks from today. The concerned respondents are also directed to restore position which was prevailing prior to execution of the Agreement to Sell dated 08.10.2009. Rule is made absolute accordingly.
With this, present application for breach of injunction under Order 39 Rule 2A of the CPC is disposed of.
CIVIL APPLICATION NO.10250 OF 2011 No order in Civil Application No.10250 of 2011 and the same stands disposed of.
Sd/-
(M.R. Shah, J.) Ajay Page 19 of 19