1.00. Rule in Civil Application No. 9448 of 2012 in Second Appeal No.190 of 2010 as well as Civil Application No. 7276 of 2012 in Second Appeal No.190 of 2010. Mr.K.V. Shelat, learned advocate appearing on behalf of the respondent in the said applications, waives the service of notice of rule. 2.00. With the consent of the learned advocates appearing on behalf of the respective parties and in the facts and circumstances of the case, all these matters are taken up for final hearing today and heard, decided and disposed of by this common judgement and order.
3.00. Present Second Appeal No.190 of 2010 has been preferred under section 100 of the Code of Civil Procedure by the appellant – original plaintiff to quash and set aside the impugned judgement and decree passed by the learned 5th Additional Senior Civil Judge, Ahmedabad Rural in Regular Civil Suit No.637 of 2003 (Original Special Civil Suit No.77 of 1999) dtd.29/11/2005 by which the learned trial court has dismissed the said suit preferred by the appellant – plaintiff. The appellant – original plaintiff has also prayed to quash and set aside the judgement and order passed by the learned appellate court – learned Additional Sessions Judge, Presiding Officer, FTC No.5, Ahmedabad (Rural) in Regular Civil Appeal No.24 of 2006 by which the learned appellate court has dismissed the said appeal; preferred by the appellant – original defendant confirming the judgement and decree passed by the learned trial court in dismissing the suit.
4.00. Civil Application No.9448 of 2012 in the Second Appeal has been preferred by the applicant – original appellant / plaintiff for taking appropriate action against the respondent herein for breach of order of status-quo granted by this Court in exercise of powers under Order 39 Rule 29(a) of the Code of Civil Procedure and consequently to detain him in civil prison for a term of three months and to direct him to restore the possession of the suit premises to the applicant – original appellant.
5.00. Civil Application No.7276 of 2012 in the Second Appeal No.190 of 2010 has been preferred by the very applicant – original appellant in the Second Appeal for appropriate direction directing the respondents to pay market rent for the suit premises at the rate of Rs.2500/- per month from April 1998 or in the alternative at the rate of 3500/- per month and also the amount of tax as stated by him leviable from April, 1998, as agreed by him in his Written Statement for the use of the suit premises. It is also prayed for appropriate direction directing the respondent not to make any construction, alteration on the superstructure of the suit premises situated at 119, Sreenath Nagar, Opposite Karmacharinagar, Ghatlodia, Ahmedabad.
6.00. That the appellant – original plaintiff instituted Special Civil Suit No. 77 of 1999 which was subsequently transferred to the court of learned Civil Judge, Ahmedabad Rural and was renumbered as Regular Civil Suit No.637 of 2003 for recovery of the possession from the respondent - original defendant contending inter-alia that the respondent is trespasser and has entered into the suit premises illegally and started occupying and residing in the same.
7.00. The suit was resisted by the original defendant by submitting that he is tenant of the suit premises. It was also denied that he has trespassed into the suit premises illegally.
8.00. That the learned trial court dismissed the suit by judgement and decree dtd.29/11/2005 by holding that the plaintiff has failed to prove that the defendant is a trespasser.
9.00 Now, so far as the claim on behalf of the defendant that he is tenant of the suit premises is concerned, the learned trial court has observed and held that the Civil Court has no jurisdiction to decide the dispute as to whether there is any relation between the plaintiff and defendant of the landlord and tenant or not. The learned trial court also dismissed the suit qua claim with respect to damages / compensation / mesne profit at the rate of Rs.2500 per month.
10.00. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in dismissing the suit, the appellant – original plaintiff preferred Regular Civil Appeal No. No. 24 of 2006 before the learned District Court, Ahmedabad Rural.
11.00. At this stage it is required to be noted that earlier before dismissal of the aforesaid suit, the respondent – original plaintiff submitted Standard Rent Application No.77 of 1998 for fixing standard rent in the court of learned Civil Judge (JD), Ahmedabad (Rural) and the learned trial court dismissed the said standard rent application by specifically observing on appreciation of evidence that the respondent herein has failed to prove that he is the tenant of the suit premises. Therefore in the appeal against the judgement and decree passed by the learned trial court, the appellant –original plaintiff produced documentary evidence Ex.33 inclusive of the judgement and order passed by the learned 7th Additional Senior Civil Judge, Ahmedabad Rural in Standard Rent Application No.77 of 1998 and also requested to raise point for determination with respect to resjudicata submitting that there is bar of resjudicata to the defence of the respondent that he is tenant of the suit premises in view of the judgement and order passed in Standard Rent Application No.77 of 1998.
12.00. It appears that the learned appellate court did not raise point for determination with respect to resjudicata as requested by the appellant and without even considering the documentary evidence produced at Ex.33, by the impugned judgement and order dtd.30/11/2009, the learned appellate court has dismissed the Regular Civil Appeal No.24 of 2006 confirming the judgement and decree passed by the learned trial court in dismissing the suit.
13.00. Being aggrieved by and dissatisfied with the judgement & orders and decrees passed by both the courts below, appellants herein – original plaintiff has preferred present Second Appeal under section 100 of the Code of Civil Procedure.
14.00. That during the pendency of the present Second Appeal, respondent – original defendant demolished the entire suit premises and started putting up new construction (though he was claiming to be tenant of the suit premises), and therefore, the appellant preferred Civil Application No.7276 of 2012 and by way of ad-interim injunction vide interim order dtd.28/6/2012, this court restrained the respondent from putting up any further construction on the suit premises in question and also restraining from making any change or alteration on the superstructure of the suit premises in question and also directed him to maintain status-quo. That thereafter the learned advocate appearing on behalf of he respondent appeared in the said application and prayed for time and the said application was adjourned to 30/8/2012 and ad-interim injunction granted earlier was directed to be continued till further orders and according to the appellant – original plaintiff, still the respondent continued to put up the construction / superstructure on the suit premises and even committed breach of injunction as well as order of status-quo and therefore, the appellant – original plaintiff has preferred Civil Application No.9448 of 2012 for taking suitable actions against the respondent in exercise of the powers under Order 39 Rule 2(a) of the Code of Civil Procedure and to punish him for having committed breach of injunction as well as order of status-quo.
15.00. So far as Second Appeal No.190 of 2010 is concerned, after making submissions by the learned advocates appearing on behalf of the respective parties on merits, there is a broad consensus between the learned advocates appearing on behalf of the respective parties that let the impugned judgement and order passed by the learned appellate court be quashed and set aside and the matter be remanded to the learned appellate court with a direction to permit the appellant to produce document which was sought to be produced at Ex.33 and raise point for determination on resjudicata, as to whether in view of the judgement and order delivered in Standard Rent Application No.77 of 1998, there is bar of resjudicata to the defence of the plaintiff and that he is tenant of the suit premises or not. The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the judgement and order passed by the learned appellate court and remanding the matter to the learned appellate court with a direction to permit the appellant to produce documents which were sought to be produced at Ex.33 and raise point for determination with respect to resjudicata as stated above. Under the circumstances, this Court is not assigning further reasons while quashing and setting aside the judgement and order passed by the learned appellate court and remanding the matter to the learned appellate court to decide as aforesaid.
16.00. Now, so far as Civil Application No.9448 of 2012 preferred by the applicant – original appellant – original plaintiff for an appropriate writ, order for breach of injunction under Order 39 Rule 2A of the Code of Civil Procedure and to detain the respondent in civil prison for term of three months and to direct him to restore the possession of the suit property to the applicant, is concerned, it is to be noted that despite the order of status quo granted by this Court in Civil Application No.7276 of 2012 in Second Appeal No.190 of 2010, the respondent has committed the breach of injunction of status quo and has made the superstructure and/or made the alteration on the superstructure of the suit premises which is to be viewed very seriously. The learned advocate appearing on behalf of the respondent has tried to justify the making of the superstructure. However, it is to be noted that even if there were any compelling circumstances, the respondent was required to approach this Court for modification of the injunction. However, he himself could not have modified the injunction/order of status quo granted by this Court which infact was extended at the request of learned advocate appearing on behalf of the respondent.
17.00. 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 sworn 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.”
18.00. However, in the facts and circumstances of the case, this Court is of the opinion that instead of sending the respondent to civil prison, if the respondent is directed to pay cost/exemplary cost quantified at Rs.25,000/- (Rupees Twenty Five Thousand only) (as cost for breach of injunction), to be paid to the applicant, it will meet the ends of justice.
19.00. Now, so far as the prayer in Civil Application No.7276 of 2012 is concerned, it will be for the Appellate Court to determine the mesne profit in case the Appellate Court comes to the conclusion that defendant was a trespasser.
20. In view of the above and for the reasons stated above, present Second Appeal succeeds and the impugned judgment and order passed by the learned Additional Sessions Judge, FTC No.5, Ahmedabad (Rural) in Regular Civil Appeal No.24 of 2006 is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the said Appeal afresh and with a direction (with consent) to permit the original appellant to produce the documents, which was sought to be produced at Exh.33 and after raising the points for determination on res judicata i.e. whether in view of the decision in Standard Rent Application No.77 of 1998 as well as on dismissal of the suit earlier filed by the respondent – original defendant, there would be any bar of res judicata. It will be open for the learned advocates appearing on behalf of the respective parties to apprise the Court on the aforesaid issues and the learned Appellate Court to consider the same in accordance with law and on its own merits and to decide the Appeal afresh on or before 31.08.2013 without fail. All concerned are directed to cooperate the learned Appellate Court in deciding the Appeal (on remand) within the stipulated time stated herein above. With this, present Second Appeal No.190 of 2010 is allowed to the aforesaid extent. No costs.
So far as Civil Application No.9448 of 2012 is concerned, the same is partly allowed by directing the respondent herein to pay/deposit Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost for breach of injunction to be deposited with the learned Appellate Court on or before 28/2/2013 and the same shall be permitted to be withdrawn by the appellant and the learned Appellate Court to pay the same to the appellant by account payee cheque at the earliest. Civil Application No.9448 of 2012 is allowed to the aforesaid extent.
Now so far as Civil Application No.7276 of 2012 is concerned, the same is disposed of by observing that in case, the learned Appellate Court comes to the conclusion that defendant was a trespasser, in that case, the learned Appellate Court to determine the mesne profit and the learned Appellate Court to hear the parties on same and also give an opportunity and thereafter pass an appropriate order of mesne profit.
With this, present Second Appeal is allowed to the aforesaid extent. Civil Application No.9448 of 2012 is partly allowed and Rule is made absolute to the aforesaid extent and Civil Application No.7276 of 2012 is hereby disposed of with above observation.
Registry is directed to return the Record & Proceedings of the case to the learned Appellate Court immediately. Sd/-
[M.R. SHAH, J.] rafik