# Mohd. Asif Naseer v. West Watch Co. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 522
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Case number:** Contempt No. 106 of 2021
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-asif-naseer-v-west-watch-co-anr-opp-parties-46778
- **Pages:** 3

## Headnote

(A) Contempt of Courts Act, 1971:
Section 10 - The High Court can exercise
the power under Section 10 of the Act of
1971 where there is no provision under the
Criminal Procedure Code or the Code of Civil
Procedure for execution of the orders or for
compliance of such orders. In other words,
where there is an effective remedy for
enforcing the order then the High Court
would be justified in declining to entertain
the contempt petition. (Para 9)

In the instant case, an execution case has
already been filed and the applicant has
already got a remedy of having an order
passed by the Prescribed Authority executed
consequently the present contempt petition
would not be maintainable. (Para 10)

Contempt Petition Rejected. (E-8)

List of Cases cited :-

E Bapanaiah Vs K.S. Raju (2015) 1 SCC 451
(followed)

## Text

522 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)01ILR A522
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Contempt No. 106 of 2021

Mohd. Asif Naseer ...Applicant
Versus
West Watch Co. & Anr. ...Opp. Parties

Counsel for the Applicant:
Anurag Srivastava, Kabir Ahmad Khan

Counsel for the Opp. Parties:
-----

(A) Contempt of Courts Act, 1971:
Section 10 - The High Court can exercise
the power under Section 10 of the Act of
1971 where there is no provision under the
Criminal Procedure Code or the Code of Civil
Procedure for execution of the orders or for
compliance of such orders. In other words,
where there is an effective remedy for
enforcing the order then the High Court
would be justified in declining to entertain
the contempt petition. (Para 9)

In the instant case, an execution case has
already been filed and the applicant has
already got a remedy of having an order
passed by the Prescribed Authority executed
consequently the present contempt petition
would not be maintainable. (Para 10)

Contempt Petition Rejected. (E-8)

List of Cases cited :-

E Bapanaiah Vs K.S. Raju (2015) 1 SCC 451
(followed)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Navneet Kumar Awasthi
holding brief of Sri Anurag Srivastava,
learned counsel for the applicant.

2. Present contempt petition has been
filed alleging non-compliance of the
judgment dated 05.02.2016 passed in Rent
Appeal No.45 of 2011 in re:West Watch
Company vs. Mohd. Asif Naseer, a copy of
which has been filed as Annexure-3 to the
contempt petition.

3. Learned counsel for the applicant
contends that the applicant who is a
landlord had filed a suit before the Judge,
Small Causes Court which was numbered
as P.A. Case No.10 of 2008 in re: Mohd.
Asif Naseer vs. West Watch Company,
against the tenant West Watch Company.
The said case was decided vide order dated
04.10.2011, a copy of which is Annexure-2
to the contempt petition, whereby the
tenant was directed to vacate the premises
within thirty days and certain other orders
were also passed. The tenant being
aggrieved with the said judgment filed Rent
Appeal No.45 of 2011 in re: West Watch
Company vs. Mohd. Asif Naseer, before
the Additional District Judge, Lucknow,
which was dismissed vide judgment and
order dated 05.02.2016, a copy of which is
Annexure-3 to the contempt petition.

4. The tenant still being aggrieved
filed Writ Petition No.3457 (R/C) of
2016 in re: West Watch Company vs.
Addl. District Judge before this Court,
which was allowed vide judgment and
order dated 04.03.2016, a copy of which
is Annexure-4 to the contempt petition,
and
the
orders
of
the
Prescribed
Authority
dated
04.10.2011
and
Additional
District
Judge
dated
05.02.2016 were set-aside.
1 All. Mohd. Asif Naseer Vs. West Watch Co. & Anr.
523

5. The applicant/landlord being
aggrieved with the order dated 04.03.2016
filed a S.L.P. which was registered as Civil
Appeal No.2375 of 2020 and the Apex
Court vide judgment and order dated
24.04.2020 allowed the civil appeal and
set-aside the judgment of the writ Court
and affirmed the order passed by the
Prescribed Authority as affirmed by the
appellate authority. However, the tenant
was given six months' time to vacate the
premises.

6. When the premises were not
vacated despite the order passed by the
Apex Court as well as the Prescribed
Authority, present petition has been filed
under Section 10 of the Contempt of Courts
Act, 1971 (For short, 'Act of 1971')
alleging contempt of the judgment and
order dated 05.02.2016 passed in Rent
Appeal No.45 of 2011.

7. Learned counsel for the applicant
contends that he has already filed an
Execution Case No.62 of 2020 against the
tenant for execution of the order dated
04.10.2011 passed by the Prescribed
Authority. He also contends that despite
having filed the execution case, present
contempt
petition
would
also
be
maintainable under Section 10 of the Act of
1971.

8. Having heard learned counsel for
the applicant and having perused the
records, what is apparent is that the present
contempt petition filed under Section 10 of
the Act of 1971 despite admittedly an
execution case having been filed by the
applicant would not be maintainable as per
law laid down by the Apex Court in the
case of E. Bapanaiah vs. K.S. Raju
reported in (2015) 1 SCC 451 wherein it
has been held as under:-

"25. Powers of the High Courts to
punish for contempt including the powers
to punish for contempt of itself flow from
Article 215 of the Constitution of India.
Section 10 of the Contempt of Courts Act,
1971 empowers the High Courts to punish
contempts of its subordinate courts which
reads as under: -

"10. Power of High Court to
punish contempts of subordinate courts. -
Every High Court shall have and exercise
the
same
jurisdiction,
powers
and
authority, in accordance with the same
procedure and practice, in respect of
contempts of courts subordinate to it as it
has and exercises in respect of contempts of
itself:

Provided that no High Court
shall take cognizance of a contempt alleged
to have been committed in respect of a
court subordinate to it where such
contempt is an offence punishable under
the Indian Penal Code (45 of 1860).

27. The present case relates to a civil
contempt wherein an undertaking given to
Company
Law
Board
is
breached.
Normally, the general provisions made
under the Contempt of Courts Act are not
invoked by the High Courts for forcing a
party to obey orders passed by its
subordinate courts for the simple reason
that there are provisions contained in
Code of Civil Procedure, 1908 to get
executed its orders and decrees. It is
settled principle of law that where there
are special law and general law, the
provisions of special law would prevail
over general law. As such, in normal
circumstances a decree holder cannot take
recourse of Contempt of Courts Act else it
is sure to throw open a floodgate of
litigation under contempt jurisdiction. It is
not the object of the Contempt of Courts
Act to make decree holders rush to the
High Courts simply for the reason that the
524 INDIAN LAW REPORTS ALLAHABAD SERIES
decree passed by the subordinate court is
not obeyed." (Emphasis by this Court)

9. From perusal of the aforesaid
judgment in the case of K.S. Raju
(supra), it is apparent that the power
exercised by the High Court under
Section 10 of the Act of 1971 can be
exercised where there is no provision
under the Criminal Procedure Code or the
Code of Civil Procedure for execution of
the orders or for compliance of such
orders meaning thereby that where there
is an effective remedy for enforcing the
order then the High Court would be
justified in declining to entertain the
contempt petition.

10. In the instant case, it is admitted
by learned counsel for the applicant that
an execution case has already been filed
by him. The Apex Court in the case of
K.S. Raju (supra) has already held that a
civil contempt can be filed under the
provisions of Section 10 of the Act of
1971 where there is no remedy for having
an order executed. As in the instant case
it is admitted that an execution case has
already been filed and the applicant has
already got a remedy of having the order
passed by the Prescribed Authority
executed
consequently
the
present
contempt
petition
would
not
be
maintainable.

11. Taking into consideration the
aforesaid facts and circumstances of the
case,
present
contempt
petition
is
dismissed.
----------
(2021)01ILR A524
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.01.2021

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 44 of 2020

Kamlesh Kumar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Rajiva Dubey, Sumit Kumar Srivastava

Counsel for the Respondents:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
304(2)/34challenge to-conviction-enmity between
the appellant and deceased due to land
dispute-no
specific
role
assigned
to
appellant's father by the prosecution
witnesses to casue injury by lathi-father
acquitted-while the appellant caused only
one blow on the head of the deceased
without any premeditation with lathi at
the time of occurrence-accused has no
criminal history- the conviction of the
appellant is maintained-sentence of 4
years reduced to a R.I. of 3 years-(Para 1
to 38)

B. Apex Court evolved the theory of
proportionality in awarding the sentence,
subject to minimum sentence provided by
the Legislature. There are several factors,
which may be taken into consideration for
awarding
quantum
of
sentence,
for
example-
gravity
and
seriousness
of
offence, age and number of offenders,
number of deceased, injured persons
nature of weapons, nature of injuries,
criminal antecedents of accused, motive ,
cause intention of offence etc. (Para 32)

The appeal is partly allowed. (E-5)

List of Cases Cited:-

1. Masalti & ors. Vs St. of U.P.,(1965) AIR SC
202