# 15 (ADDL.) S.C.R. 972 KANWAR SINGH SAINI v. HIGH COURT OF DELHI

- **Citation:** [2011] 15 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 2011-09-23
- **Case number:** Criminal Appeal No. 1798 of 2009
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-972-kanwar-singh-saini-v-high-court-of-delhi-27402
- **Pages:** 32

## Headnote

Code of Civil Procedure, 1908 - Order XXXIX Rule 2A
and Order XX/ Rule 32 - Exercise of powers under Order
C XXXIX Rule 2A - Scope - Decree passed in a civil suit for
injunction on basis of admission/undertaking made by the
defendant-appellant and the pleadings taken by him in his
written statement - Alleged breach of the undertaking given
to the Court - Application by decree holder under Order
XXXIX Rule 2A CPC rlw ss.10, 11and12 of the 1971 ActD Trial court held that a prima facie case of contempt was made
out and referred the matter to the High Court - High Court
held the appellant guilty of criminal contempt and awarded
him simple imprisonment for four months. -
Whether
application under Order XXXIX Rule 2A CPC Or under the
E 1971 Act uould be entertained by the Civil Court and whether
the matter could be referred to the High Court at all - Held:
The proceedings under Order XXXIX Rule 2A are available
only during the pendency of the suit and not after conclusion
of the trial of the suit - In the instant case, the undertaking
F given to the court during the pendency of the suit, on the basis
of which the suit itself was disposed of, became a part of the
decree and breach of such undertaking was to be dealt with
in execution proceedings under Order XX/ Rule 32 CPC and
not by means of contempt proceedings - Even otherwise, it
G was not desirable for the High Court to initiate criminal
contempt proceedings for disobedience of the order of the
injunction passed by the subordinate court, for the reason that
where a decree is for an injunction, and the party against
whom it has been passed has wilfully disobeyed it, the same
H
972
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
973
may be executed by attachment of his property or by detention
A
in civil prison or both - The application under Order XXXIX
Rule 2A CPC itself was not maintainable, . hence, all
subsequent proceedings remained inconsequential -
Contempt of Courts Act, 1971 - s.2(b) and ss.10, 11 and 12
- Maxims - Maxim "sublato fundamento cadit opus".
B
Code of Civil Procedure, 1908 - Order X Rule 1, Order
XIV, Rule 1 (5) and Order XV, Rule 1 - "First hearing of the
suit" - Meaning of - Held: The date of "first hearing of a suit"
under CPC is ordinarily understood to be the date on which
the Court proposes to apply its mind to the contentions raised c
by the parties in their respective pleadings and also to the
documents filed by them for the purpose of framing the issues
which are to be decided in the suit - The words the "first day
of hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which the
0
court applies its mind to the case which ordinarily would be
at the time when either the issues are determined or evidence
is taken.
Contempt of Court - Contempt proceedings - Purpose
of - Held: The purpose of initiation of contempt proceedings
E
is two-fold:. to ensure the compliance of the order passed by
the court; and to punish the contemnor as he has the audacity
to challenge the majesty of law.
Contempt of Court - Contempt proceedings - Nature of
-
Standard of proof required - Held: The contempt F
proceeding$ being quasi-criminal in nature, the standard of
proof requires in the same manner as in other criminal cases
- The alleged contemnor is entitled to the protection of all
safeguards/rights which are provided in the Criminal
Jurisprudence, including the benefit of doubt -The case G
should not rest only on surmises and conjectures.
Contempt of Court - Civil contempt - Held: A mere
disobedience by a party to a civil action of a specific order
made by the court in the suit is civil contempt for the reason
that it is for the sole benefit of the other party to the civil suit.
H
• •
974
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
Jurisdiction - Conferment of -
Held: Conferment of
jurisdiction is a legislative function and it can neither be
conferred with the consent of the parties nor by a superior
court, and if the court p

## Text

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B
(2011) 15 (ADDL.) S.C.R. 972
KANWAR SINGH SAINI
v.
HIGH COURT OF DELHI
(Criminal Appeal No. 1798 of 2009)
SEPTEMBER 23, 2011
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Code of Civil Procedure, 1908 - Order XXXIX Rule 2A
and Order XX/ Rule 32 - Exercise of powers under Order
C XXXIX Rule 2A - Scope - Decree passed in a civil suit for
injunction on basis of admission/undertaking made by the
defendant-appellant and the pleadings taken by him in his
written statement - Alleged breach of the undertaking given
to the Court - Application by decree holder under Order
XXXIX Rule 2A CPC rlw ss.10, 11and12 of the 1971 ActD Trial court held that a prima facie case of contempt was made
out and referred the matter to the High Court - High Court
held the appellant guilty of criminal contempt and awarded
him simple imprisonment for four months. -
Whether
application under Order XXXIX Rule 2A CPC Or under the
E 1971 Act uould be entertained by the Civil Court and whether
the matter could be referred to the High Court at all - Held:
The proceedings under Order XXXIX Rule 2A are available
only during the pendency of the suit and not after conclusion
of the trial of the suit - In the instant case, the undertaking
F given to the court during the pendency of the suit, on the basis
of which the suit itself was disposed of, became a part of the
decree and breach of such undertaking was to be dealt with
in execution proceedings under Order XX/ Rule 32 CPC and
not by means of contempt proceedings - Even otherwise, it
G was not desirable for the High Court to initiate criminal
contempt proceedings for disobedience of the order of the
injunction passed by the subordinate court, for the reason that
where a decree is for an injunction, and the party against
whom it has been passed has wilfully disobeyed it, the same
H
972
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
973
may be executed by attachment of his property or by detention
A
in civil prison or both - The application under Order XXXIX
Rule 2A CPC itself was not maintainable, . hence, all
subsequent proceedings remained inconsequential -
Contempt of Courts Act, 1971 - s.2(b) and ss.10, 11 and 12
- Maxims - Maxim "sublato fundamento cadit opus".
B
Code of Civil Procedure, 1908 - Order X Rule 1, Order
XIV, Rule 1 (5) and Order XV, Rule 1 - "First hearing of the
suit" - Meaning of - Held: The date of "first hearing of a suit"
under CPC is ordinarily understood to be the date on which
the Court proposes to apply its mind to the contentions raised c
by the parties in their respective pleadings and also to the
documents filed by them for the purpose of framing the issues
which are to be decided in the suit - The words the "first day
of hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which the
0
court applies its mind to the case which ordinarily would be
at the time when either the issues are determined or evidence
is taken.
Contempt of Court - Contempt proceedings - Purpose
of - Held: The purpose of initiation of contempt proceedings
E
is two-fold:. to ensure the compliance of the order passed by
the court; and to punish the contemnor as he has the audacity
to challenge the majesty of law.
Contempt of Court - Contempt proceedings - Nature of
-
Standard of proof required - Held: The contempt F
proceeding$ being quasi-criminal in nature, the standard of
proof requires in the same manner as in other criminal cases
- The alleged contemnor is entitled to the protection of all
safeguards/rights which are provided in the Criminal
Jurisprudence, including the benefit of doubt -The case G
should not rest only on surmises and conjectures.
Contempt of Court - Civil contempt - Held: A mere
disobedience by a party to a civil action of a specific order
made by the court in the suit is civil contempt for the reason
that it is for the sole benefit of the other party to the civil suit.
H
• •
974
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
Jurisdiction - Conferment of -
Held: Conferment of
jurisdiction is a legislative function and it can neither be
conferred with the consent of the parties nor by a superior
court, and if the court passes order/decree having no
jurisdiction over the matter, it would amount to a nullity as the
8 matter goes to the roots of the cause - Such an issue can be
raised at any belated stage of the proceedings including in
appeal or execution - The court cannot derive jurisdiction
apart from the statute.
The appellant had purportedly executed a sale deed
c in favour of one 'MY' in respect of a plot of land. 'MY' filed
civil suit for permanent injunction alleging that the
appellant tried to dispossess him from the said premises.
The Civil Court while taking the written statement of the
appellant on record, also recorded his statement in
0 person that he had neither threatened to dispossess nor
he would dispossess 'MY', and accordingly disposed of
the suit directing the appellanUdefendant not to breach
the undertaking given by him. The same culminated into
a decree dated 12.5.2003.
E
Subsequently, the undertaking given by the appellant
to the civil court was allegedly violated. 'MY' filed
application under Order XXXIX Rule 2A of CPC read with
Sections 10, 11 and 12 of the Contempt of Courts Act,
1971 against the appellant, his wife and two sons. The
trial court held that a prima facie case of contempt was
F made out and referred the matter to the High Court. The
High Court held the appellant guilty of criminal contempt
and imposed upon him simple imprisonment for four
months. Hence the present appeal.
G
Allowing the appeal, the Court
HELD:1. The instant case is an example where all
proceedings in the suit as well as under the Contempt of
Courts Act, 1971 were taken without adverting to the
procedure known in law. [Para 1) [986-E]
H
2.1. Order X Rule 1 CPC provides for recording the
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
975
statement of the parties to the suit at the "first hearing of A
the suit" which comes after the framing of the issues and
then the suit is posted for trial, i.e. for production of
evidence. Such an interpretation emerges from the
conjoint reading of the provisions of Order X, Rule 1,
Order XIV, Rule 1(5), and Order XV, Rule 1, CPC. The 8
cumulative effect of the above referred provisions of CPC
comes to that the "first hearing of the suit" can never be
earlier than the date fixed for the preliminary examination
of the parties and the settlement of issues. On the date
of appearance of the defendant, the court does not take
up the case for hearing or apply its mind to the facts of C
the case, and it is only after filing of the written statement
and framing of issues, the hearing of the case
commences. The hearing presupposes the existence of
an occasion which enables the. parties to be heard by the
Court in respect of the cause. Hearing, therefore, should D
be first in point of time after the issues have been framed.
The date of "first hearing of a suit" under CPC is ordinarily
understood to be the date on which the Court proposes
to apply its mind to the contentions raised by the parties
in their respective pleadings and also to the documents E
filed by them for the purpose of framing the issues which
are to be decided in the suit. Thus, the question of having
the "first hearing of the suit" prior to determining the
points in controversy between the parties i.e. framing of
issues does not arise. The words the "first day of F
hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which
the court applies its mind to the case which ordinarily
would be at the time when either the issues are
determined or evidence is taken. [Para 6] (989-E-H; 990A-B]
G
2.2. From the fact situation, it is evident that the suit
was filed by 'MY' on 26.4.2003 and In response to the
notice issued in that case, the appellant/defendant
appeared on 29.4.2003 in person and filed his written H
976
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A statement. It was on the same day that his statement had
been recorded by the court. This Court fails to
understand as to what statutory provision enabled the
civil court to record the statement of the appellant/
defendant on the date of filing the written statement.
8
[Paras 7) [990-D-E]
Ved Prakash Wadhwa v. Vishwa Mohan AIR 1982 SC
816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha
(Regd.) Dal Bazar AIR 1987 SC 197; Siraj Ahmad Siddiqui
v. Shri Prem Nath Kapoor AIR 1993 SC 2525 and Mis
c Mangat Singh Tri/ochan Singh thr. Mangat Singh (dead) by
Lrs. & Ors. v. Satpal AIR 2003 SC 4300 - relied on.
Whether the application under Order XXXIX Rule 2A CPC
or under the 1971 Act could be entertained by the Civil
Court and whether the matter could be referred to the
· D High Court at all.
3.1. Application under Order XXXIX Rule 2A CPC lies
only where disobedience/breach of an injunction granted
or order complained of was one, that is granted by the
court under Order XXXIX Rules 1 & 2 CPC, which is
E naturally to enure during the pendency of the suit.
However, once a suit is decreed, the interim order, if any,
merges into the final order. No litigant can derive any
benefit from mere pendency of case in a Court of Law,
as the interim order always merges in the final order to
F be passed in the case and if the case is ultimately
dismissed, the interim order stands nullified
automatically. [Para 9) [992-H; 993-A-B]
3.2. In case there is a grievance of non-compliance
of the terms of the decree passed in the civil suit, the
G remedy available to the aggrieved person is to approach
the execution cdurtl under Order XXI Rule 32 CPC which
provides for elaborate proceedings in which the parties
can adduce their evidence and can examine and crossexamine the witnesses as opposed to the proceedings
H In contempt which are summary in nature. Application
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
977
under Order XX.XIX Rule 2A CPC is not maintainable once A
the suit stood decreed. Law does not permit to skip the
remedies available under Order XXI Rule 32 CPC and
resort to the contempt proceedings for the reason that the
court has to exercise its discretion under the 1.971 Act
when an effective and alternative remedy is not available B
to the person concerned. Thus, when the matter relates
to the infringement of a decree or decretal order
embodies rights, as between the parties, it is not
expedient to invoke and exercise contempt jurisdiction,
in essence, as a mode of executing the decree or merely C
because other remedies may take time or are more
circumlocutory in character. Thus, the violation of
permanent injunction can be set right in executing the
proceedings and not the contempt proceedings. There is
a complete fallacy in the argument that the provisions of
Order XXXIX Rule 2A CPC would also include the case D
of violation or breach of permanent injunction granted at
the time of passing of the decree. [Para 10] [993-D-H; 994·
A]
3.3. The power exercised by a court under Order
XXXIX Rule 2A is punitive in nature, akin to the power to E
punish for civil contempt under the 1971 Act. Therefore,
such powers should be exercised with great caution and
responsibility. Unless there has been an order under
Order XX.XIX Rule 1 or 2 CPC in a case, the question of
entertaining an application under Order XXXIX Rule 2A F
does not arise. In case there is a final order, the remedy
lies in execution and not in an action for contempt or
disobedience or breach under Order XX.XIX Rule 2A. The
contempt jurisdiction cannot be used for enforcement of
decree passed in a civil suit. [Para 11] [994-B-C]
G
3.4. The proceedings under Order XXXIX Rule 2A are
available only during the pendency of the suit and not
after conclusion of the trial of the suit. Therefore, any
undertaking given to the court during the pendency of the ·
suit on the basis of which the suit itself has been H
978
SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A disposed of becomes a part of the decree and breach of
such undertaking is to be dealt with in execution
proceedings under Order XXI Rule 32 CPC and not by
means of contempt proceedings. Even otherwise, it is not
desirable for the High Court to initiate criminal contempt
8
proceedings for disobedience of the order of the
injunction passed by the subordinate court, for the
reason that where a decree is for an injunction, and the
party against whom it has been passed has wilfully
disobeyed it, the same may be executed by attachment
of his property or by detention in civil prison or both. The
C provision of Order XXI Rule 32 CPC applies to prohibitory
as well as mandatory injunctions. In other words, it
applies to cases where the party is directed to do some
act and also to the cases where he is abstained from
doing an act. Still to put it differently, a person disobeys
D an order of injunction not only when he fails to perform
an act which he is directed to do but also when he does
an act which he is prohibited from doing. Execution of
an injunction decree is to be made in pursuance of the
Order XXI Rule 32 CPC as the CPC provides a particular
E manner and mode of execution and therefore, no other
mode is permissible. [Para 12] [994-D-H; 995-A]
3.5. Conferment of jurisdiction is a legislative function
and it can neither be conferred with the consent of the
parties nor by a superior court, and if the court passes
F order/decree having no jurisdiction over the matter, it
would amount to a nullity as the matter goes to the roots
of the cause. Such an issue can be raised at any belated
stage of the proceedings including in appeal or
execution. The finding of a court or tribunal becomes
G irrelevant and unenforceable/inexecutable once the
forum is found to have no jurisdiction. Acquiescence of
a party equally should not be permitted to defeat the
legislative animation. The court cannot derive jurisdiction
apart from the statute. [Para· 13] [995-B-D]
H
3.6. When a statute gives a right and provides a
•
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
979
forum for adjudication of rights, remedy has to be sought A
only under the provisions of that Act. When an Act creates
a right or obligation and enforces the performance
thereof in a specified manner, "that performance cannot
be enforced in any other manner". Thus for enforcement
of a right/obligation under a statute, the only remedy
8
available to the person aggrieved is to get adjudication
of rights under the said Act. [Para 13] [995-G-H; 996-A]
3.7. The proceedings under Order XXXIX, Rule 2A
CPC is a mode to compel the opposite party to obey the
order of injunction by attaching the property and c
detaining the disobedient party in civil prison as a mode
of punishment for being guilty of such disobedience.
Breach of undertaking given to the court amounts to
contempt in the same way as a breach of injunction and
is liable to be awarded the same punishment for it. [Para
0
14] [996-0]
3.8. It is a settled legal proposition that the executing
court does not have the power to go behind the decree.
Thus, in absence of any challenge to the decree, no
objection can be raised in execution.- [Para 15) [986-E-F]
E
3.9. In the case at hand, the decree dated 12.5.2003
was passed by the civil court on the basis of admission/
undertaking made by the appellant and the pleadings
taken by him in his written statement. Therefore, in a case
where there was any disobedience of the said judgment
F
and decree, the application under Order XXXIX Rule 2A
CPC should not have been entertained. Such an
application is maintainable in a case where there is
violation of interim injunction passed during the
pendency of the suit. In the instant case, no interim order G
had ever been passed. Thus, the appropriate remedy
available to the decree holder-'MY' had been to file
application for execution under Order XXI Rule 32 CPC.
The procedure in execution of an injunction decree is
same as prescribed under Order XXXIX Rule 2A i.e.
attachment of property and detention of the disobedient H
980 SUPREME COURT REPORTS [2011] 15 (AODL.) S.C.R.
A to get the execution of the order. In view thereof, all
subsequent proceedings were unwarranted. [Para 16)
[996-G-H; 997-A-B]
3.10. The application of the decree holder had been
for violation of the undertaking which at the most could
B be civil contempt as defined under Section 2(b) of the Act
1971 as it includes the wilful breach of an undertaking
given to a court. Therefore, the Trial Court failed to make
a distinction between civil contempt and criminal
contempt. A mere disobedience by a party to a civil action
c of a specific order made by the. court in the suit is civil
contempt for the reason that it is· for the sole benefit of
the other party to the civil suit. Thi!; case remains to the
extent that, in such a fact situation, the administration of
justice could be undermined if the order of a competent
0 court of law is permitted to be disregarded with such
impunity, but it does not involve sufficient public interest
to the extent that it may be treated as a criminal contempt.
It was a clear cut case involving private rights of the
parties for which adequate and sufficient remedy had
been provided under CPC itself, like attachment of the
E property and detention in civil prison, but it was not a
case wherein the facts and circumstances warranted the
reference to the High Court for initiating the proceedings
for criminal contempt. [Para 17] [997-C-F]
3.11. The High Court failed to appreciate the nature/
F status of proceedings in which the alleged false affidavit
had been filed. In the instant case, proceedings under
Order XXXIX Rule 2A CPC were not maintainable at all.
Had the complainant 'MY' filed the execution proceedings
under Order XXI Rule 32 CPC, the court could have
G proceeded in accotdance with law without going into the
averments raised therein by the appellant. [Para 18) [997H; 998-A·B]
3.12. In an appropriate case where exceptional
circumstances exist, the court may also resort to the
H provisions applicable in case of civil contempt, in case
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
981
of violation/breach of undertaking/judgment/order or A
decree. However, before passing any final order on such
application, the court must satisfy itself that there is
violation of such judgment, decree, direction or order and
such disobedience is wilful and intentional. Though in a
case of execution of a decree, the executing court may
B
not be bothered whether the disobedience of the decree
is wilful or not and the court is bound to execute a decree
whatever may be the consequence thereof. In a contempt
proceeding, the alleged contemnor may satisfy the court
that disobedience has been under some compelling
circumstances, and in that situation, no punishment can C
be awarded to him. Thus, for violation of a judgment or
decree provisions of the criminal contempt are not
attracted. [Para 19] [998-D-H]
3.13. The appellant had been subjected to unfair 0
procedure from the institution of the suit itself. The suit
had been "disposed of' in great haste without following
the procedure prescribed in CPC. Once the suit has been
decreed, the court could not entertain the application
under Order XXXIX Rule 2A CPC as the suit had already
been decreed and such an application is maintainable E
only during the pendency of the suit in case the interim
order passed by the court or undertaking given by the
party is violated. In the instant case, no interim order had
ever been passed and the undertaking given by the
appellant/defendant not to dispossess the plaintiff 'MY'
F
culminated into a final decree and thus, if any further
action was required, it could be taken only in execution
proceedings. There has been manifest injustice in the
case and the doctrine of ex debito justitiae has to be
applied in order to redress the grievances of the
G
appellant/defendant. The judgment and order impugned
cannot be sustained under any circumstance. [Para 21]
[1000-D-G]
3.14. The courts below proceeded with criminal
contempt proceedings not for disobeying any judgment
H
982
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A or order but for taking inconsistent pleas in the reply filed
by the appellant to the application under Order XXXIX
Rule 2A CPC, accepting it to be a false affidavit. Purposes
of initiation of contempt proceedings are two-fold: to
ensure the compliance of the order passed by the court;
B and to punish the contemnor as he h~ the audacity to
challenge the majesty of law. In the instant case,
admittedly, the grievance of the complaint had been
disobedience of decree/order of the civil court dated
12.5.2003. The High Court convicted the appellant and
C sent him to jail but did not grant any relief so far as the
enforcement of the order dated 12.5.2003 is concerned.
On fails to understand as under what circumstances, the
High Court did not even consider it appropriate to
enforce the judgment/order/decree if it had been
disobeyed by the appellant. The instant case is a glaring
D example of non-application of mind and non-observance
of procedure prescribed by law for dealing with such
matters. Entire proceedings have been conducted in
most casual and cavalier manner. The contempt
proceedings being quasi-criminal in nature, the standard
E of proof requires in the same manner as in other criminal
cases. The alleged contemnor is entitled to the protection
of all safeguards/rights which are provided in the Criminal
Jurisprudence, including the benefit of doubt. There must
be a clear-cut case of obstruction of administration of
F justice by a party intentionally to bring the matter within
the ambit of the said provision. The case should not rest
only on surmises and conjectures. [Paras 22, 25] [1000·
H; 1001-A-D; 1002-F-G]
3.15. As the application under Order XXXIX Rule 2A
G CPC itself was not maintainable all subsequent
proceedings remained inconsequential. Legal maxim
"sublato fundamento cadit opus" which means
foundation being removed structure falls is attracted.
[Para 26] [1003-D]
H
Dhananjay Shar!pa v. State of Haryana & Ors. (1995) 3
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
983
SCC 757: 1995 (3) SCR 964; Rita Markandey v. Surjit Singh
A
Arora (1996) 6 SCC 14: 1996 (7) Suppl. SCR 56; Murray &
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SCR 367 - distinguished.
Dr. A.R. Sircar v. State of U.P. & Ors. 1993 Suppl. (2)
SCC 734; Shiv Shanker & Ors. v. Board of Directors
B
UPSRTC & Anr. 1995 Suppl (2) SCC 726; Committee of
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Antulay v. R. S. Nayak & Anr. AIR 1988 SC 1531; Union of
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Kamal Improvement Trust, Kamal v. Prakash Wanti (Smt.)
(Dead) & Anr. (1995) 5 SCC 159: 1995 (1) Suppl. SCR 136;
E
U.P. Rajkiya Nirman Nigam Ltd. v. lndure Pvt. Ltd. & Ors. AIR
1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal
Barot & Anr. AIR 1906 SC 2664; Kesar Singh & Ors. v. Sadhu
(1996) 7 SCC 711: 1996 (1) SCR 1017; Kondiba Dagadu
Kadam v. Savitribai Sopan Gujar & Ors. AIR 1999 SC 2213;
F
Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd.,
Kanpur AIR 2000 SC 2484; The Premier Automobiles Ltd.
v. K.S.Wadke & Ors. AIR 1975 SC 2238; Sushi/ Kumar
Mehta v. Gobind Ram Bohra (Dead) thr. L.Rs. (1990) 1 SCC
193: 1989 (2) Suppl. SCR 149; Samee Khan v. Bindu Khan
G
AIR 1998 SC 2765; State of Punjab & Ors. v. Mohinder Singh
Randhawa & Anr. AIR 1992 SC 473; Niaz Mohammad & Ors.
v. State of Haryana & Ors. (1994) 6 SCC 332: 1994 (3) Suppl.
SCR 720; Bank of Baroda v. Sadruddin Hasan Daya & Anr.
AIR 2004 SC 942; Rama Narang v. Ramesh Narang & Anr.
H
984 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A AIR 2006 SC 1883 and Debabrata Bandopadhyay ~Ors. v.
The State of West Bengal & Anr. AIR 1969 SC 189 - relied
on.
Sardar Hasan Siddiqui & Ors. v. State Transport
Appellate Tribunal, U.P., Lucknow & Ors. AIR 1986 All. 132
B - approved.
Sakharan Ganesh Aaravandekar & Anr. v. Mahadeo
Vinayak Mathkar & Ors. (2008) 10 SCC 186; Mahender
Kumar Gandhi v. Mohammad Tajer Ali & Ors. (2008) 10 SCC
795; Palitana Sugar Mills Private Limited & Anr. v. Vilasiniben
C Ramachandran & Ors. (2007) 15 SCC 218: 2007 (4) SCR
221 ; C. Elumalai & Ors. v. A.G. L. lrudayaraj & Anr. AIR 2009
SC 2214; Daroga Singh & Ors. v. B.K. Pandey (2004) 5 SCC
26: 2004 (1) Suppl. SCR 113; Bathina Ramakrishna Reddy
v. State of Madras AIR 1952 SC 149; Brahma Prakash
D Sharma & Ors. v. The State of U.P. AIR 1954 SC 10 and
State of Madhya Pradesh v. Revashankar AIR 1959 SC 102
- referred to.
Doe d. Rochester (BP) v. Bridges 109 ER 1001;
Barraclough v. Brown 1897 AC 615 - referred to.
E
Case Law Reference:
AIR 1982 SC 816
relied on
Para 6
AIR 1987 SC 197
relied on
Para 6
AIR 1993 SC 2525
relied on
Para 6
F
AIR 2003 SC 4300
relied on
Para 6
1993 Suppl. (2) sec 734 relied on
Para 9
1995 Suppl (2) SCC 726 relied on
Para 9
AIR 1997 SC 3071
relied on
Para i
G
AIR 1998 SC 1566
relied on
Para 9
c2005) 8 sec 423
relied on
Para 9
AIR 2009 SC 2330
relied on
Para 11
AIR 1972 SC 1826
relied on
Para 12
H
AIR 1951 SC 230
relied on
Para 13
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
985
AIR 1978 SC 22
relied on
Para 13
A
AIR 1981 SC 537
relied on
Para 13
AIR 1986 All. 132
approved
Para 13
AIR 1988 SC 1531
relied on
Para 13
AIR 1992 SC 96
relied on
Para 13
B
1995 (1) Suppl. SCR 136 relied on
Para 13
AIR 1996 SC 1373
relied on
Para 13
AIR 1996 SC 2664
relied on
Para 13
1996 (1) SCR 1017
relied on
Para 13 c
AIR 1999 SC 2213
relied on
Para 13
AIR 2000 SC 2484
relied on
Para 13
109 ER 1001
referred to
Para 13
1897 AC 615
referred to
Para 13
D
AIR 1975 SC 2238
relied on
Para 13
1989 ( 2) Suppl. SCR 149relied on
Para 13
AIR 1998 SC 2765
relied on
Para 14
AIR 1992 SC 473
relied on
Para 15
E
1995 (3) SCR 964
distinguished
Para 18
1996 (7) Suppl. SCR 56 distinguished
Para 18
2000 (1) SCR 367
distinguished
Para 18
(2008) 1 o sec 186
referred to
Para 19
F
(2008) 10 sec 795
referred to
Para 19
1994 (3) Suppl. SCR 720 relied on
Para 19
AIR 2004 SC 942
relied on
Para 19
AIR 2006 SC 1883
relied on
Para 19
referred to
Para 23
G
2007 (4) SCR 221
AIR 2009 SC 2214
referred to
Para 23
2004 (1) Suppl. SCR 113 referred to
Para 24
AIR 1952 SC 149
referred to
Para 24
H
986
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
AIR 1954 SC 10
referred to
Para 24
AIR 1959 SC 102
referred to
Para 24
AIR 1969 SC 189
relied on
Para 25
CRIMINAL APPELATE JURISDICTION : Criminal Appeal
8 No. 1798 of 2009.
c
From the Judgment & Order dated 20.7.2009 of the High
Court of Delhi at New Delhi in Contempt Case (Criminal) No.
9 of 2004.
Tanmaya Mohta (for Purnima Bhat) for the Appellant.
Shree Prakash Sinha, Vijay Kumar and Shekhar Kumar
for the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. 'Liberty' - the most cherished
D fundamental right, a basic human right, a "transcendental",
inalienable, and ·primordial' right, should not be put in peril
without following the procedure prescribed by law and in a
casual and cavalier manner. Instant case is an example where
all proceedings in the suit as well as under the Contempt of
E Courts Act, 1971, (hereinafter called as 'Act 1971'), have been
taken without adverting to the procedure known in law.
2. This Criminal Appeal has been preferred under Section
19 (1)(b) of the Act 1971 against the impugned judgment and
order dated 20.7.2009 passed by the High Court of Delhi at
F New Delhi in Contempt Case (Crl.) No.9 of 2004, whereby the
appellant has been convicted for committing contempt of court
by violating the undertaking given by him to the Court at the time
of disposal of the suit and awarded him simple imprisonment
for four months.
G
3. Facts and circumstances giving rise to this appeal are:
A. The appellant executed a sale deed in favour of one
Mohd. Yusuf on 5.9.2002 in respect of the premises bearing
No. 148, village Khirki, Malviya Nagar, New Delhi for a sum of
H Rs.2,10,000/- and got the said deed registered.
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
987
[DR. B.S. CHAUHAN, J.]
B. Mohd. Yusuf filed suit No. 106/2003 in the Civil Court,
A
Delhi, on 26.4.2003 for permanent injunction alleging that the
appellant tried to dispossess him on 24.4.2003 from the said
suit premises. His application for interim relief was rejected.
The Civil Court issued summons and notice to the appellant/
defendant.
B
C. In response to the said summons and notice, the
appellant filed a written statement on 29.4.2003 admitting the
execution of sale deed in respect of the suit premises for a sum
of Rs.2.10 lacs and handing over its possession to the plaintiff
but denied the allegation that he had made any attempt to c
dispossess the plaintiff. However, the appellant raised the
grievance that the entire consideration of sale has not been
paid to him as a sum of Rs.25,000/- still remained outstanding.
D. The Civil Court while taking his written statement on
record also recorded the statement of the appellant/defendant
D
in person that he had neither threatened to dispossess nor he
would dispossess the plaintiff. The plaintiffs counsel accepted
the statements made by the appellant/defendant in the court and
the case was adjourned for 12.5.2003. On 12.5.2003, plaintiff
asked the court to dispose of the suit in view of the statement
E
made by the appellant/defendant. The court disposed of the suit
directing the appellant/defendant not to breach the undertaking
given by him.
E. Appellant's son filed a suit on 11.8.2003 for partition in
respect of two plot Nos. i.e. 147A and 148 claiming that he had
F
a share in the said properties.
F. Mohd. Yusuf-plaintiff in the Suit No. 106/2003 filed an
application before the High Court under the provisions of Act
1971 alleging the violation of the undertaking given by the
appellant to the civil court. The application came up for hearing G
- on 11.9.2003 but none appeared to press the same. The High
Court disposed of the application vi de order dated 11 .3 .2003
giving liberty to the said applicant to approach the civil court.
The said order was passed without issuing notice to the
appellant or anyone else.
H
988
SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A
G. Mohd. Yusuf filed an application dated 15.9.2003 under
Order XXXIX Rule 2A of Code of Civil Procedure, 1908 •
(hereinafter called 'CPC') read with Sections 10, 11 and 12 of
the Act 1971 against the appellant, his wife and two sons
alleging that when he visited the suit premises on 4.8.2003, he
B found that the locks of the main door had been broken by them.
The appellant filed reply to the said application on 22.10.2003
alleging that the execution of the sale deed dated 5.9.2002 and
his written statement and the statement made before the court
on 29.4.2003 had been obtained by fraud.
c
H. While hearing the said application, the Court vide order
dated 16.2.2004 recorded that as the appellant had taken
inconsistent pleas to his written statement filed earlier and
violated the undertaking while making his oral statement, a
prima facie case of contempt was made out and referred the
D matter to the High Court to be dealt with under the provisions
of Act 1971.
I. The appellant filed a suit on 23.2.2005 for cancellation
of the sale deed dated 5.9.2002.
J. The High Court while accepting the reference as
E Criminal Contempt, issued show cause notice to the appellant
on 2.2.2005 directing him to appear in person on 16.2.2005.
The Court vide impugned judgment and order dated 20.7.2009
held the appellant guilty of criminal contempt on the basis of
inconsistent pleas taken by him and also for the breach of
F undertaking and imposed simple imprisonment for four months.
The appellant was granted bail by this Court on 29.9.2009.
Hence, this appeal.
4. Mr. Tanmaya Mehta, learned counsel appearing for the
appellant has raised the grievance mainly, that it was a case
G of civil contempt which could have been dealt with by the Trial
Court itself and by no means could be treated as a criminal
contempt case. The High Court erred in treating the same as
criminal contempt and awarded the punishment to the appellant
which was not warranted under the facts and circumstances of
H
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
989
[DR. B.S. CHAUHAN, J.]
the case and therefore, the judgment and order of the High Court
A
convicting the appellant is liable to be set aside.
5. Mr. Shree Prakash Sinha, learned counsel appearing
for the pla'intiff - Mohd.Yusuf, intervener, has opposed the
appeal contending that the appellant and his family members
had made false i:;nd misleading statements to scuttle the interest
B
of justice. The appellant has not only committed criminal
contempt but also abused the process of the court. Thus, no
interference is called for.
6. The suit was filed on 26.4.2003 and notice was issued
returnable just after three days, i.e. 29.4.2003 and on that date
C
the written statement was filed and the. appellant appeared in
person and his statement was recorded. Order X Rule 1 CPC
provides for recording the statement of the parties to the suit
at the "first hearing of the suit" which comes after the framing
of the issues and then the suit is posted for trial, i.e. for D
production of evidence. Such an interpretation emerges from
the conjoint reading of the provisions of Order X Rule 1 ; Order
XIV Rule 1 (5); and Order XV Rule 1, CPC. The cumulative
effect of the above referred provisions of CPC comes to that
the "first hearing of the suit" can never be earlier than the date
E
fixed for the preliminary examination of the parties and the
settlement of issues. On the date of appearance of the
defendant, the court does not take up the case for hearing or
apply its mind to the facts of the case, and it is only after filing
of the written statement and framing of issues, the hearing of
F
the case commences. The hearing presupposes the existence
of an occasion which enables the parties to be heard by the
Court in respect of the cause. Hearing, therefore, should be first
in point of time after the issues have been framed. The date of
"first hearing of a suit" under CPC is ordinarily understood to
be the date on which the Court proposes to apply its mind to
G
the contentions raised by the parties in their respective
pleadings and also to the documents filed by them for the
ptlrpose of framing the issues which are to be decided in the
suit. Thus, the question of having the "first hearing of the suif'
prior to determining the points in controversy between the
H
990
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A parties i.e. framing of issues does not arise. The words the "first
day of hearing" does not mean the day for the return of the
summons or the returnable date, but the day on which the court
applies its mind to the case which ordinarily would be at the
time when either the issues are determined or evidence is
8 taken. [Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR
1982 SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain
Sabha (Regd.) Dal Bazar, AIR 1987 SC 197; Siraj Ahmad
Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525; and
Mis Mangat Singh Trilochan Singh thr. Mangat Singh (dead)
C by Lrs. & Ors. v. Satpal, AIR 2003 SC 4300]
7. From the above fact situation, it is evident that the suit
was filed on 26.4.2003 and in response to the notice issued in
that case, the appellanUdefendant appeared on 29.4.2003 in
person and filed his written statement. It was on the same day
0 that his statement had been recorded by the court. We failed
to understand as to what statutory provision enabled the civil
court to record the statement of the appellanVdefendant on the
date of filing the written statement. The suit itself has been
disposed of on the basis of his statement within three weeks
of the institution of the suit. The order sheets of the suit read
E as under:
F
G
26.4.2003:
"Present: Ld. counsel for the plaintiff.
Arguments on injunction application heard. No ground for
granting ex-parte stay order at this stage, request in this
regard is declined. Issue summons of the suit and notice
of the interim application to the defendants on PF and RC,
courier, UPC and dasti also for 29-04-2003.
29.4.2003:
"Counsel for the plaintiff.
Sd/-
CJ/Delhi
26-04-2003"
H
Defendant in person.
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
991
[DR. B.S. CHAUHAN, J.]
He states that he is not likely to dispossess the plaintiff A
from the suit premises as he has already sold the same.
However, he has stated that he has to take certain amount
from the plaintiff towards expenses which has not been
paid by the plaintiff. There is counter claim of the defendant
affixing the court fee and in any case, he has legal remedy
B
to exercise it. The defendant is ready to make the
statement. Let it be recorded.
CJ/Delhi
"Statement of Shri Kanwar Singh Saini, Defendant on S.A. c
Neither I have threatened the plaintiff nor I will dispossess
him as I have already sold the suit property vide sale deed.
The suit of the plaintiff may kindly be dismissed as there
is no merit in the same.
R.O. &A.C.
Sd/
(Kanwar Singh Saini)
Sd/-
CJ/DELHI
D
29.4.2003"
E
"Statement of Ld. Counsel for plaintiff Shri Iqbal Ahmed
without oath:
I have heard the statement of defendant and I have
instruction from the plaintiff to accept the same. The suit
F
of the plaintiff may kindly be disposed of.
(Iqbal Ahmed)
12.5.2003:
R.O.&A.C.
Sd/-
Sd/-
G
CJ/DELHI
29.4.2003
"I have heard the statement of defendant and I accept the
H
992
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A
same. My suit be disposed of in terms of statement of
defendant.
RO&AC ·
Sd/-
B
(Mohd. Yusuf)
Sd/-
CJ/DELHI
12.5.2003"
C
Thereafter the learned Judge passed the following order:-
"12.5.2003
D
E
Present: Plaintiff in person.
Ld. Counsel for the defendant.
Statement of plaintiff is recorded on a separate sheet.
Statement of defendant is already recorded. Keeping in
view of the statements of parties, the suit of the plaintiff is
disposed of. Parties are bound by their statements as
given in the court. No orders as to costs. File be
consigned to Record Room.
Sd/-
CJ/DELHI
12.5.2003"
F
8. Be that as it may, the so-called statement/undertaking
given by the appellant/defendant culminated into the decree of
the Civil Court dated 12.5.2003. Thus, the question does arise
as to whether the application under Order XXXIX Rule 2A CPC
or under the Act 1971 could be entertained by the Civil Court
G and whether the matter could be referred to the High Court at
all.
9. Application under Order XXXIX Rule 2A CPC lies only
where disobedience/breach of an injunction granted or order
complained of was one, that is granted by the court under Order
H XXXIX Rules 1 & 2 CPC, which is naturally to enure during the
KANWAR SINGH SAINI v. HIGH COURT OF DELHI
993
[DR. B.S. CHAUHAN, J.)
pendency of the suit. However, once a suit is decreed, the
A
interim order, if any, merges into the final order.
No litigant can derive any benefit from mere pendency of
case in a Court of Law, as the interim order always merges in
the final order to be passed in the case and if the case is
ultimately dismissed, the interim order stands nullified
B
automatically. (Vide: Dr. A.R. Sircar v. State of U.P. & Ors.,
1993 Suppl. (2) SCC 734; Shiv Shanker & Ors. v. Board of
Directors, UPSRTC & Anr., 1995 Suppl (2) SCC 726;
Committee of Management, Arya Nagar Inter College, Arya
Nagar, Kanpur, through its Manager & Anr. v.