# PATEL RAJNIKANT DHULABHAI & ANR v. PATEL CHANDRAKANT DHULABHAI & ORS

- **Citation:** [2008] 10 S.C.R. 1169
- **Court:** Supreme Court of India
- **Decided:** 2008-07-21
- **Bench:** C.K. Thakker, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-rajnikant-dhulabhai-anr-v-patel-chandrakant-dhulabhai-ors-23440
- **Pages:** 32

## Headnote

Contempt of Courts Act, 1971 - s. 12- Contempt of court
A
B
- Violation of orders passed by Supreme Court - Contempt c
petitions - Held: Wilful and deliberate disobedience of the
orders passed by the apex Court can never be said to be bona
fide, honest or in good faith - It calls for serious view to ensure
proper administration of justice - On facts, there was inten-
~ tional and deliberate violation and disobedience of the orders 0
dated 26.04.06 and 10.01.05 -Apology tendered by contemners not an act of penitence, contrition or regret - Acceptance
of such apology would be allowing contemners to go away with
impunity after committing gross contempt of court - Contemners held guilty uls. 12 of the Act, r/w s.94(c}, 0 39 r.2-A CPC
and Article 129 and awarded simple imprisonment for two
E
weeks - Code of Civil Procedure, 1908 - s.94(c}, 0 39, r 2-A
(as amended by Code of Civil Procedure (Amendment) Act,
1976) - Constitution of India, 1950 - Article 129.
_.,
The dispute in the instant SLPs pertains to the transF
fer of and construction on certain properties claimed to
be joint family properties. By this Court's order dated
26.04.04 the interim relief restraining the defendants from
putting up any construction on suit land as also transferring the same, granted by the High Court was allowed to G
be continued. Subsequently, by order dated 10.01.05,
,,,
SLPs were disposed of holding that any construction by
purchasers on ·suit properties would be subject to outcome of suit; that any third party right that may be cre1169
H
1170
SUPREME COURT REPORTS
(2008] 10 S.C.R.
A ated, should be done after notice to petitioners; and that
the pendency of proceedings should be notified to third
parties. However, respondents allegedly sold the property, received consideration and executed sale deeds
without notice, acting in violation of this Court's order
B dated 26.4.2004 and 10.1.2005. Hence the present con- ,.
tempt petitions.
Disposing of the contempt petitions, the Court
HELD: 1. From the overall considerations of the mate ter and viewed in the light of series of events, the respondents-contemners have disregarded and violated the orders passed by this Court on 26.04.04 and 10.01.05 and
the contemners are responsible for such act. Considering the facts and circumstances in their entirety, ends of
0
justice would be served if the respondents/contemners
are held guilty u/s. 12 of the Contempt of Courts Act, 1971, +
r/w s. 94(c) and Rule 2-A of Order 39 of the Code of Civil
Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1976 and Article 129 of the Constitution. The respondents-contemners are ordered to unE dergo simple imprisonment for a term of two weeks.
[Paras 44, 45 and 69] [1191-E-F 1200 E-Fl
2. 1 With regard to the defence that Development
Scheme was jointly promoted for part 'A' land and part 'B'
F
land, is clearly an after thought and the plea has befm put
forward without there being anything on record. Though "'
it was stated that initially, M, H, Rand RG were given shops
in part 'B' property, no such agreements/deeds have been
placed on record. It was then stated that after interim stay
G was vacated and request was made by them to allot them
shops in part 'A' property, no evidence/material has been
addu~ed by the contemners. Stereo-type affidavits have
been filed sworn on one and the same day, July 29, 2006 .,_
after contempt notice was served upon the respondents.
Even the sale-deeds do not recite part 'A' or 'B' of the propH
J
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1171
CHANDRAKANT DHULABHAI & ORS.
erty or the fact that earlier the allottee was granted shop
A
in part '8' property but after the disposal of the SLPs, request was made by the purchaser to convert the allotment from part 'B' property to part 'A' property. Therefore,
....
the so-called defence is apparently to avoid consequences of contempt proceedings. Moreover, the defence B
does not appear to be probable. Normally, no reasonable
and prud

## Text

_Characters 0–39,916 of 65,661. This is a partial read: ask again with offset=39916 for what follows._

[2008] 10 S.C.R. 1169
PATEL RAJNIKANT DHULABHAI & ANR.
v.
PATEL CHANDRAKANT DHULABHAI & ORS
(CONTEMPT PETITION (CIVIL) NOS. 12-13 OF 2006. IN
SLP (C) Nos. 7659-7660 of 2004)
JULY 21, 2008
[C.K. THAKKER AND AFTAB ALAM, JJ.]
Contempt of Courts Act, 1971 - s. 12- Contempt of court
A
B
- Violation of orders passed by Supreme Court - Contempt c
petitions - Held: Wilful and deliberate disobedience of the
orders passed by the apex Court can never be said to be bona
fide, honest or in good faith - It calls for serious view to ensure
proper administration of justice - On facts, there was inten-
~ tional and deliberate violation and disobedience of the orders 0
dated 26.04.06 and 10.01.05 -Apology tendered by contemners not an act of penitence, contrition or regret - Acceptance
of such apology would be allowing contemners to go away with
impunity after committing gross contempt of court - Contemners held guilty uls. 12 of the Act, r/w s.94(c}, 0 39 r.2-A CPC
and Article 129 and awarded simple imprisonment for two
E
weeks - Code of Civil Procedure, 1908 - s.94(c}, 0 39, r 2-A
(as amended by Code of Civil Procedure (Amendment) Act,
1976) - Constitution of India, 1950 - Article 129.
_.,
The dispute in the instant SLPs pertains to the transF
fer of and construction on certain properties claimed to
be joint family properties. By this Court's order dated
26.04.04 the interim relief restraining the defendants from
putting up any construction on suit land as also transferring the same, granted by the High Court was allowed to G
be continued. Subsequently, by order dated 10.01.05,
,,,
SLPs were disposed of holding that any construction by
purchasers on ·suit properties would be subject to outcome of suit; that any third party right that may be cre1169
H
1170
SUPREME COURT REPORTS
(2008] 10 S.C.R.
A ated, should be done after notice to petitioners; and that
the pendency of proceedings should be notified to third
parties. However, respondents allegedly sold the property, received consideration and executed sale deeds
without notice, acting in violation of this Court's order
B dated 26.4.2004 and 10.1.2005. Hence the present con- ,.
tempt petitions.
Disposing of the contempt petitions, the Court
HELD: 1. From the overall considerations of the mate ter and viewed in the light of series of events, the respondents-contemners have disregarded and violated the orders passed by this Court on 26.04.04 and 10.01.05 and
the contemners are responsible for such act. Considering the facts and circumstances in their entirety, ends of
0
justice would be served if the respondents/contemners
are held guilty u/s. 12 of the Contempt of Courts Act, 1971, +
r/w s. 94(c) and Rule 2-A of Order 39 of the Code of Civil
Procedure, 1908 as amended by the Code of Civil Procedure (Amendment) Act, 1976 and Article 129 of the Constitution. The respondents-contemners are ordered to unE dergo simple imprisonment for a term of two weeks.
[Paras 44, 45 and 69] [1191-E-F 1200 E-Fl
2. 1 With regard to the defence that Development
Scheme was jointly promoted for part 'A' land and part 'B'
F
land, is clearly an after thought and the plea has befm put
forward without there being anything on record. Though "'
it was stated that initially, M, H, Rand RG were given shops
in part 'B' property, no such agreements/deeds have been
placed on record. It was then stated that after interim stay
G was vacated and request was made by them to allot them
shops in part 'A' property, no evidence/material has been
addu~ed by the contemners. Stereo-type affidavits have
been filed sworn on one and the same day, July 29, 2006 .,_
after contempt notice was served upon the respondents.
Even the sale-deeds do not recite part 'A' or 'B' of the propH
J
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1171
CHANDRAKANT DHULABHAI & ORS.
erty or the fact that earlier the allottee was granted shop
A
in part '8' property but after the disposal of the SLPs, request was made by the purchaser to convert the allotment from part 'B' property to part 'A' property. Therefore,
....
the so-called defence is apparently to avoid consequences of contempt proceedings. Moreover, the defence B
does not appear to be probable. Normally, no reasonable
and prudent man/woman who purchases immovable
property with a 'clear' title would request the owner of the
property to allot him/her property over which his title is
not clear, which is the subject-matter of litigation, for which c
a suit is pending and the matter is sub-judice in a Court of
law. [Paras 36 and 37] [1188 E 1189 C]
2.2 There was no question of raising a plea that the
acceptance of cheques during the pendency of the interim orders represented the amount of consideration D
booked prior to the issuance of interim orders. If initial
booking and payment was in relation to part 'B' property,
it was immaterial and altogether irrelevant whether it was
prior or subsequent to filing suit by the plaintiffs or grant
of interim orders either by High Court or by this Court.
E
Thus, the pleas are inconsistent, conflicting and irreconcilable. [Para 38] [1189 F-G]
2.3 During the pendency of the proceedings and
..
inspite of interim orders passed by this Court, agreements
have been entered into by the contemners, cheques had F
been accepted and consideration had been received at
least in part. So far as the first order passed by this Court
on 26.04.04 is concerned, there was total prohibition from
creating any interest in favour of third party either by sale,
mortgage, transfer, assignment, gift or 'in any other manG
ner whatsoever'. Hence, entering into an agreement or acceptance of full or even part consideration would be hit
<..
by the said order. It would amount to 'creation of interest'
prohibited by this Court. [Para 39] [1189-G, 1190-B]
H
t
1172
SUPREME COURT REPORTS
[2008] 10 S.C.R.
"
A
2.4 'Injunction' or 'no injunction', the title of the defendants was 'under challenge'. It was 'cloudy' and unless and until the suit is decided, it cannot be said that they
had 'clear and marketable title'. Though the legal position
is clear and beyond controversy, it is found that an express,
,.._
B unambiguous and unequivocal statement is made by the
contemners in all sale deeds that their title to the property
is 'clear and marketable'. It was also stated that they were
independent owners, possessors and occupiers of the
property and there was no right, interest, part share, claim
c of anybody else therein. [Para 40] [1190 D-F]
2.5 It was submitted that it was specifically and clearly
stated that a suit was pending in the Court of Civil Judge
and it was also clarified that the documents were executed
subject to the final decision in the suit; that if the owner of
D the property does not state that he has title over the prop-
+
t
erty he seeks to transfer and that such title is 'clear and
marketable', no reasonable and prudent man would come
f
forward to purchase such property. However, that does not
mean that in such case, a person whose title is challenged
E and the proceedings are pending will be permitted to say
,, r
that his title is 'clear and marketable' and there is no impediment on the contemners from transferring the property in favour of purchasers. [Para 41] [1190-F, 1191-B]
F
2.6 In any case, there is clear breach and violation of
the order of this Court, dated 10.01.05 so far as 'notice' to
>
the petitioners is concerned. It is not disputed even by
the contemners that in some cases, notice as to creation
ofthird party interest had been given after creation of such
r
interest by filing pursis in the Court. [Para 42] [1191 B-C]
~
G
2. 7 The submission that this Court had not ordered
that 'prior' notice should be given to the petitioners re-
...
garding creation of third party rights and hence, there was
"
no violation of the direction of the Court cannot be ac-
'"
H cepted. This Court has stated; "Any third party right which
(
)\
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1173
-:
CHANDRAKANT DHULABHAI & ORS.
is created shall be done after notice to the petitioners. The
A
direction has only one meaning and it is that third party
interest can only be created after notice to the petitioners.
Admittedly, that was not done, at least, in few cases. [Paras
43 and 44] [1191 C-E]
3.1 It is clear that punishing a person for contempt of B
Court is indeed a drastic step and normally such action
should not be taken. 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. If for proper administra- c
tion 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. [Para 59] [1197 E-G]
Ashok Paper Kamgar Union v. Dharam Godha and Ors.
D
2003 (11) SCC 1 ; Kapildeo Prasad Sah and Ors. v. State of Bihar
and Ors. 1999 (7) SCC 569; Anil Ratan Sarkar & Ors. v. Hirak
Ghosh and Ors. 2002 (4) SCC 21; Commissioner, Karnataka
Housing Board v. C. Muddaiah 2007 (7) SCC 689; All Bengal
E
Excise Licensees Association v. Raghabendra Singh and Ors.
2007 (11) SCC 374; Tayabbhai M. Bagasarawala v. Hind Rubber Industries (P) Ltd. 1997 (3) SCC 443-referred to.
Attorney General v. Times Newspaper Ltd. 197 4 AC 273
~
- referred to.
F
3.2 In the instant case, both the orders passed by
this Court on April 26, 2004 and January 10, 2005, were
explicitly clear. The first order totally prohibited/restrained
the respondents/contemners from creating any interest
whatsoever in the suit property. lnspite of the said order,
G
interest had been created by the contemners in the suit
property. But even otherwise there is intentional disobedience and wilful breach of the subsequent order dated
January 10, 2005 inasmuch as transactions had been
entered into without issuing notice to the petitioners. They H
1174
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A could not have been entered int~ by the respondents b~
fore issuance of notice to the petitioners. The respondents
were clearly aware of the order. In fact, the action was
sought to be defended and justified on the ground that the
Court had not directed 'prior' notice, and as such, non-is8 suance of notice before entering into sale transactions
would not amount to disobedience of the order of the Court
cannot be accepted. In the circumstances, it must be held
that the disobedience of the order by the contemners was
wilful, intentional and deliberate. [Para 60] [1197 G -1198-C]
C
4.1 The suomission that in the affidavit in reply, the
respondents have stated that if this Court comes to the
conclusion that they had committe~ contempt of Court,
the Court may accept unconditional and unqualified apology and may discharge notice; and that the statutory pro-
. D vision itself enacts that no, apology shall be rejected
merely on the ground that it is qualified or conditional [Explanation to s. 12(1)] cannot be accepted. The contemhers have intentionally and deliberately violated the orders of the Court. The orders were clear, unambiguous
E and unequivocal having one and only one meaning. Wilful and deliberate disobedience of the orders passed by
the apex Court of.the country can never be said to be bona
fide, honest or in good faith. If it is so, the action calls for
serious view to ensure proper administration of justice.
F [Paras 61 and 62] [1198 D-G]
G
H
4.2 An apolegy is neither a weapon of defence to
purge the guilty of their offence; nor is it intended to operate as a universal panacea, 'it is intended to be evidence
of real contriteness [Para 64] [1199 D]
4.3 In the in~tant case, the so-called apology is not
an act of penitence, contrition or regret. It has been tendered as a 'tactful move' when the contemners are in the
tight corner and with a view to ward off the Court. Acceptance of such apology in the case. on hand wou-ld be al- .
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1175
CHANDRAKANT DHULABHAI & ORS.
'(
lowing the contemners to go away with impunity after A
committing gross contempt of Court. On the facts and in
the circumstances of the case, imposition of fine in lieu of
imprisonment would not meet the ends of justice. [Para
68) [1200 C-E]
--;
M. Y Shareaf v. Hon'ble Judges of the High Court of B
Nagpur 1955 (1) SCR 757; M.B. Sanghi v. Hil]h Court of
Punjab and Haryana 1991 (3) SCR 312 - relied on.
Hiren Bose, Re AIR 1969 Cal 1; T.N. Godavarman
Thirumulpad through the Amicus Curiae v. Ashok Khot and c
Anr. 2006 (5) SCC 1 - referred to.
Case Law Reference
2003 (11) sec 1
Referred to.
Para 50
1999 (7) sec 569
Referred to.
Para 51
D
1973 (3) All ER 54
Referred to.
Para 52
2002 (4) sec 21
Referred to.
Para 53
2001 (7) sec 689
Referred to.
Para 54
E
2001 (11) sec 374
Referred to.
Para 55
1997 (3) sec 443
Referred to.
Para 56
AIR 1969 Cal 1
Referred to.
Para 63
1955 (1) SCR 757
Relied on.
Para 64
F
1991 (3) SCR 312
Relied on.
Para 64
2006 (5) sec 1
Refer.red to.
Para 65
1984 (3) sec 405
Referred to.
Para 65
G
CIVIL APPELLATE JURISDICTION : Contempt Petition
(C) Nos. 12-13 of 2006 in SLP (C) 7659-7660 of 2004
..
Shyam Divan, Jay Savla, Reena Bagga and Akshit Gadnrik
for the Contemners/Applicants.
H
1176
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
Uday Lalit, Rameshwar Prasad Goyal, Sanjay Kapur,
Shubhra Kapur, Raj iv Kapur and Arti Singh for the Respondents.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present contempt petitions are
B filed by the petitioners against respondent Nos. 1 to 3, alleged
.,..
contemners, praying that they be held guilty of 'civil contempt'
for violating orders passed by this Court on April 26, 2004 and
on January 10, 2005 and be punished accordingly. A prayer is
also made directing the contemners to deposit the amount rec ceived from third parties in consideration of transfer of property
effected by them during the period of interim orders of this Court.
2. Shortly stated the facts of the case are that petitioners
and respondent Nos. 1, 4 and 5 (in Special Leave Petitions)
are real brothers and heirs and legal representatives of one
D Dhulabhai Patel. It was the case of the petitioners that in 1961,
one Chandulal Muljibhai Parikh and Dhulabhai Patel (father of "
petitioners and respondent Nos. 1, 4 and 5) purchased land
bearing Revenue Survey Nos. 459/2, 464, 465, 466/1 and 466/
2 admeasuring 6 acres and 9 gunthas ofvillageAtladara, Taluka
E and District Baroda in the State of Gujarat from one Parvatibai
Ingle by a registered sale deed. According to the petitioners,
the amount of consideration was paid from the funds of Hindu
Undivided Family (HUF) of Dhulbhai Patel, but name of respondent No. 1 Chandrakant Dhulabhai Patel was shown as the purF
chaser of the property being the eldest son of decdeased
Dhulabhai Patel along with Chandulal Muljibhai Parikh. ResponA.
dent Nos. 4 and 5 were minors at that time. Respondent No. 1,
Chandrakant Dhulabhai Patel was also studying in a college
and was having no source of income whatsoever. The entire
amount was paid by deceased Dhulabhai. According to the peG titioners, several documents revealed that the property was
managed by HUF of Dhulabhai Patel. In October, 1986,
Dhulabhai died. No partition by metes and bounds had been
...._
effected between the sons of deceased Dhulabhai and the property continued to remain as HUF property. The petitioners used
H to manage prope~y after the death of Dhulabhai.
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1177
"I'
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
3. In 1990, a Memorandum of Understanding (MoU) was
A
entered into between respondent No. 1, Chandrakant Patel,
being eldest son of Dhulabhai Patel family on one hand and
heirs of deceased Chandulal Parikh on the other hand where-
....
under it was agreed that a portion of land towards western side
<f
would be treated as property of deceased Dhulabhai Patel and
B
his family members.
4. In 1998, however, respondent No. 1 in conspiracy with
--
third party and behind the back of the petitioners and respondent Nos. 4 and 5 executed an agreement to sell the share of
HUF property belonged to the petitioners and other members c
of deceased Dhulabhai Patel. A collusive suit came to be filed
by respondent Nos. 2 and 3 (partners of Mis Om Shivam Corporation) in the Court of Civil Judge (Senior Division), Baroda,
being Special Civil Suit No. 311 of 1999 for specific performance of agreement, dated January 18, 1998 against responD
y
dent No. 1 and within less than a month, a collusive and fraudulent consent decree was passed. The petitioners were neither
aware of the suit nor the decree passed therein. It was only when
a caveat was filed by Mis Om Shivam Corporation, a partnership firm that the petitioners suspected foul play. They, thereE
fore, made an inquiry and came to know about the suit and collusive decree. Immediately, they filed a suit being Special Civil
Suit No. 605 of 2002 in the Court of Civil Judge, (Senior Divison),
Baroda for declaration, partition of joint family property and their
share in the said property. Along with the plaint, the petitioners
F
filed an application (Exh. 5) under Order XXXIX, Rules 1 and 2
read with Section 151 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'the Code') for interim injunction restraining the defendants from putting up any construction on the
land admeasuring 1,43,000 sq. ft. towards western side of the G
land bearing Revenue Survey Nos. 459/2, 464, 465, 466/1 and
466/2 and from entering into any transaction of sale, gift, mort-
·"
gage or from dealing with the property in any other manner or
from handing over possession of the suit land to anyone else.
The trial Court issued notice to the defendants, but did not grant
H
1178
SUPREME COURT REPORTS
[2008] 10 S.C.R.
•
A
injunction as prayed by the petitioners-plaintiffs. The petitioners challenged the said order by filing Appeal from Order No.
140 of 2003 and the High Court of Gujarat vide its order dated
May 2, 2003 directed the trial Court to dispose of the Application (Exh. 5) on merits within 15 days from the re-opening of the
_,,__
B courts after summer vacation.
""
5. The trial Court thereafter heard the matter and dismissed
the Application by refusing interim injunction. The petitioners
once again preferred an appeal against the said decision in
~
'
c
the High Court being Appeal From Order No. 241 of 2003. Along
with Memorandum of Appeal, the petitioners filed Civil Application No. 5083 of 2003 for interim injunction. In paragraph 8 of
the Civil Application, the petitioners prayed for interim relie-F.
The High Court by an order dated July 23, 2003, granted exparte ad interim relief in terms of paragraph 8(A).
D
6. The said paragraph read as under;
8.
The applicants, therefore, pray that :
(A)
Pending admission, hearing and final disposal
E
of the aforesaid Appeal from Order, the Hon'ble
Court may be pleased to issue an injunction
restraining opponents Nos. 1 to 3 herein, from
putting up any construction on the suit land either
themselves or through their agents and/or
F
servants and from disposing of the said
property or creating any interest therein in favour
,.
of a third party either by sale, mortgage, transfer,
assignment, gift or in any other manner
whatsoever.
G
7. It is thus clear that though interim injunction was refused by the trial Court, the High Court on July 23, 2003, granted
the prayer of the petitioner and issued interim injunction during
..
the pendency and final disposal of Appeal from Order instituted
_._,_
by the petitioners-appellants.
H
8. The High Court then heard the matter and by judgment
_:
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1179
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
and order dated March 26, 2004 dismissed the appeal observA,
ing that considering the facts and circumstances of the case in
their entirety, the order passed by the trial Court below Application Exh. 5 called for no interference. Interim relief which was
granted earlier was ordered to be vacated.
9. The learned counsel appearing for the petitioners-ap8
pellants in the High Court, at that stage, made a prayer to the
Court to continue interim relief granted earlier so as to enable
the petitioners-appellants to approach higher forum. After hearing the learned counsel for the parties and noting objections
raised by the other side, the Court continued interim relief C
granted earlier for four weeks.
10. Paragraphs 35 and 36 of the judgment which are relevant read as under;
35. Considering the entire facts and circumstances of 6
the case and having regard to the legal position
concerning the point in issue, this Court is of the
view that the impugned order passed by the Trial
Court below an application Exh. 5 does not call for
any interference in this Appeal From Order.
E,
Accordingly, this Appeal From Order is dismissed.
Interim relief granted earlier is vacated.
36. At this stage, Mr. A.J. Patel, the learned advocate
appearing for the appellants requested to continue
the interim relief granted earlier by this Court for the
F.
period of six weeks so as to enable the appellants
to approach the higher forum. Mr. Bhatt and Mr.
Nanavati, learned advocate appearing for the
respondents Nos. 1, 2 & 3 respectively have strongly
objected to the extension of interim relief. After G
considering their submissions on this issue, the
interim relief granted earlier is extended for four
weeks from today.
(emphasis supplied)
H
1180
SUPREME COURT REPORTS
[2008) 10 S.C.R.
A
11. Being aggrieved by the said order, the petitioners approached this Court by filing Special Leave Petition (Civil) Nos.
7659-7660 of 2004. On April 26, 2004, this Court issued notice and continued interim order passed by the High Court which
was, as noted earlier, in terms of prayer para 8(A). The order,
B
da.ted April 26, 2004 passed by this Court read as under;
"The interim order already granted by the High Court will
continue subject to further orders of this Court".
12. Notices were served on the respondents who ape pea red. Affidavits and further affidavits were thereafter filed and
Special Leave Petitions were disposed of by this Court on January 10, 2005.
D
E
F
G
13. The said order read thus;
"The dispute in these special leave petitions pertains to
the construction on certain properties which are claimed
to be the joint family properties. By the impugned interim
order, the High Court has permitted construction to be
made on the suit properties. We have considered the
reasoning of the High Court. While not affirming the
correctness of the prima facie opinion expressed therein,
we are of the view that the interest of the parties will be
adequately protected if a conditional order is passed. The
special leave petitions, are, accordingly, disposed of by
making it clear that any construction which is made by
the respondent - purchasers on the disputed properties
will be subject to the outcome of the suit. Any third party
right which is created shall be done after notice to the
petitioners. The pendency of the proceedings shall also
be notified to each of the third parties so involved. The
Trial Court is directed to dispose of the suit expeditiously,
preferably within a period of six months from the date of
the communication of this order.
(emphasis supplied)
H
14. The allegation of the petitioners in the present Con-
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1181
"
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
tempt Petitions is that in spite of interim order passed by this
A
Court on April 26, 2004, as modified by final order dated January 10, 2005, the respondent Nos. 1 to 3 (contemners) dealt
with and transferred the suit property by entering into agreements, accepted the amount by way of consideration, executed
sale-deeds in favour of third parties without notice to the petiB
tioners, allowed construction to be made and thereby committed wilful disobedience and intentional violation of the order of
the Court and they are liable to be punished in accordance with ·
law.
15. On these petitions, notices were issued on February c
6, 2006. The respondents appeared and filed affidavits. Having satisfied that the pleadings were complete, the Registry was ,
directed to place the matters for final disposal. That is how the
matters have been placed before us.
16. The learned counsel for the petitioners contended that D
in spite of the orders passed by this Court, the contemners sold
the property, received consideration and executed sale-deeds.
No notice was given to them about the transactions before they
were entered into. The orders of this Court were abundantly
E
clear. The first order dated April 26, 2004, totally restrained the
respondents from taking any action during the pendency of the
-;
proceedings. In spite of such clear-cut order, properties were
sold and several other actions were taken by the contemners
and they are liable to be punished for committing contempt of
;.
Court. It was also submitted that even under the order dated
F
January 10, 2005, when Special Leave Petitions were disposed
of and earlier interim order was modified, the contemners had
acted in violation of the directions. And on that ground also, they ·
are liable under the Contempt of Courts Act.
17. The learned counsel for the petitioners, in this connecG
tion, referred to agreements to sell as well as sale deeds and
acceptance of part payment or full payment of consideration
during the intervening period between July 23, 2003 when the ,
High Court granted interim relief in terms of para 8(A) and also
H
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[2008] 10 S.C.R.
A
orders dated April 26, 2004 and the final order dated January
10, 2005 by this Court. It was urged that though the suit was
pending before the trial Court and the matter was sub-judice, in
agreements to sell as also in sale deeds, an express and unequivocal statement was made by the contemners that their title
B to the property is 'clear' and 'marketable'. It was ordered by the
Court on January 10, 2005 that if any third party right would be
created, it "shall be done after notice to the petitioners". No such
notice, however, was given to the petitioners. It was only after
the properties were sold that a 'pursis' was filed in the triai Court
c stating therein that certain properties were sold by the defendants. Thus, there was clear breach of orders of this Court and
the contemners are liable to be punished for violating the interim orders.
18. The learned counsel for the respondents-contemners,
D on the other hand, submitted that the Contempt Petitions are
liable to be dismissed. The respondents had not wilfully and
intentionally violated interim orders of this Court. No doubt, the
High Court, granted interim injunction in Civil Application in Appeal from Order on July 23, 2003 but finally Appeal from Order
E
itself was dismissed. Similarly, this Court on April 26, 2004 continued interim relief but ultimately, dismissed Special Leave Petitions on January 10, 2005 by modifying earlier interim order. It
was also submitted that this Court never ordered to give 'prior'
notice to the petitioners before entering into any agreement or
F
executing sale-deed. It was, therefore, not necessary for the respondents either to issue notice or to intimate petitioners be-
-'-
fore entering into any transaction. But in certain cases, even
'prior notice of transaction was given to the petitioners by the
respondents; though in some cases, such notice was given afG ter entering into agreements/transactions but the same could
not be said to be violative of the orders passed by this Court.
Alternatively, it was submitted that even if the Court finds that
there is 'technical' breach of the orders of this Court, the re-
"'·
spondents have tendered t.:nconditional and unqualified apolH ogy which may be accepted b:t this Court and contempt pro-
--\
PATEL RAJNIKANT DHUlABHAI & ANR. v. PATEL 1183.
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
ceedings may be dropped against them by showing magnaA
nimity and taking lenient view.
·
19. We have given most anxious and thoughtful consideration to the rival contentions of the parties. We have also gone ·
through the relevant record and orders passed by the High Court ,
as also by this Court. We have perused affidavits and further 8
affidavits filed by the parties to these petitions. We have carefully g~ne through various documents on record.
20. We have reproduced both interim orders passed by
this Court; (i) order, dated April 26, 2004, and (ii) order, dated c
January 10, 2005. Under the first order, larger relief was granted,
obviously because at that stage, the Court on prima facie satisfaction of the case, issued notice to the respondents. Moreover, even the High Court which had granted interim relief on
July 23, 2003, continued. the said relief (though Appeal from 0
Order was dismissed and interim relief was vacated) so as to
enable the aggrieved parties to approach this Court. On January 1C), 2005, however, this Court disposed of Special Leave
Petitions. But taking note of the pendency of the main matter
· . (suit), the Court did not totally vacate interim relief but modified
it by imposing certain conditions. The question before us is E
whether the contemners had violated both the orders or any of
· the two orders and whether such violation or disobedience was
wilful or intentional as alleged by the petitioners. If so, what punishment should be imposed on the contemners and what should
be the final order in these contempt petitions.
· F
21. Before proceeding with the consideration of rival contentions, it may be stated for the completion of record that Special Civil Suit No. 605 of 2002 instituted by the petitioners herein
(plaintiffs) was decreed· by the IXth Additional Senior Civil ,G
Judge, Vadodara on May 23, 2006 and it was declared that
plaintiff Nos. 1 ~nd 2 and defendant Nos. 1, 4 and 5 each has 31
16 share in the suit property a.nd defendant Nos. 7, 8 and 9
each has 1/48 share in the said property. Prelimin.ary decree
was ordered to be drawn up accordingly. It was also stated that H
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SUPREME COURT REPORTS
[2008] 10 S.C.R.
A the defendants against whom the decree is passed have challenged the decree by filing First Appeal in the High Court and
the matter is sub-Judice.
22. Now, it is the case of the ·petitioners that in spite of
interim orders of this Court, dated April 26, 2004 and January
8
10, 2005, in gross violation, wilful disobedience and intentional
breach thereof, the contemners had sold certain properties without notice to the petitioners. It was stated that the contemners
executed a sale-deed in favour of Madhuben Rohit and
Jasodaben Thaker on August 30, 2005 for consideration of
C Rs.3,30,000/-. The contemners accepted a cheque of
Rs.2,00,000/- bearing No. 531526, dated October 15, 2004.
Similarly, an agreement to sell was executed in favour of
Hemlataben Shah for Rs.3,00,000/- on May 26, 2005 and the
entire amount was received by three cheques; cheque
D No.719372, dated April 15, 2004; cheque No.719374, dated
April 22, 2004 and cheque No. 216684, dated April 29, 2004.
Again, a sale deed in favour of Smt. Ranjit Gulati was executed
by accepting a cheque of Rs.51,000/- dated September 10,
• 2003, a cheque of Rs.1,00,000/- dated October 8, 2004 and a
E cheque of Rs.1,39,000/- dated April 26, 2004. By producing
additional documents on record, the petitioners have stated that
sale-deeds were executed by the contemners in favour of
Jayesh Natwarlal Parikh on August 18, 2005; Hemaben
Jayeshbhai Parikh on August 18, 2005, Rashmikaben
F
Navinchandra Desai on August 30, 2005 and Tolaram
Radharam Popat on April 25, 2005. All these transactions were
entered into in gross violation and breach of the orders of the
Court and the contemners may; therefore, be punished for committing contempt of Court.
G
23. The respondents have filed affidavits denying the alleH
gations levelled by the petitioners and asserting that they have
not committed any act in disobedience of the order of the Court
and the contempt petitions are liable to be dismissed.
24. Respondent No. 1 (Chandrakant Dhulabhai), in his af-
,.
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1185
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
fidavit, dated June 16, 2006 (filed on August 17, 2006) stated
A
that the contempt petitions are 'primarily' directed against respondent Nos. 2 and 3 who are alleged to have violated the
orders of this Court. It was stated that the orders were required
to be complied with by respondent Nos. 2 and 3 and were not
directed against respondent No. 1. It was also stated that the
B
respondent No. 1 is 67 years old and has been impleaded just
to harass him without making any averment/allegation against
him. It is, therefore, prayed to dismiss contempt petitions against
him.
25. A counter-affidavit is also filed by respondent Nos. 2 C
and 3 controverting the averments and denying the allegations
of the petitioners in the Contempt Petitions. It was stated that
during the operation of interim order dated April 26, 2004, they
had neither executed any sale deed nor created third party interest in the suit property. The ch~ques said to have been acD
cepted by them during interim orders represented the amount
paid towards consideration of the apartment booked prior to
the issuance of interim orders.
26. Regarding the allegation that the title of the suit propE
erty was described as 'clear and marketable', it was stated that
as per the order of the Court, what was required to be mentioned was the pendency of the proceedings. In all the sale
deeds, executed by the respondents, specific recital was made
that the transaction was subject to pendency of civil suit and
final decision therein.
F
27. Regarding the third allegation of not giving notice to
the petitione.rs, it was stated that no 'prior' notice was required
as per the order of this Court. It was stated;
a.
in order to protect the interest of the parties, this G
/
Hon'ble Court passed a conditional order stating inter
alia "any third party rights which is created shall be
done after notice to the petitioners". This Hon'ble
Court has not used the word "prior" as alleged. This
Hon'ble Court had desired that as and when third
H
A
B
c
D
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SUPREME COURT REPORTS
[2008] 10 S. C.R.
party rights are created, the petitioners should be
duly informed. The purpose of such information was
to enable-the petitioners to protect their interest by
impleading such third parties in the pending suit.
b.
Admittedly, initially, by pursis dated 1.3.2005, the
petitioners were given' prior intimation about the
creation of third party rights. However, subsequently
it was found that out of the 11 sale deeds which were
proposed to be executed and about which prior
intimation by pursis dated 1 .3.2005 was given - 7
sale deeds could not be executed for quite some
· time, as the deal could not be finalized. Further,
before executing the sale deeds, 2 buyers/third
· parties/allottees got the deals transferred in some
other name, viz. name of their wife/child.
28. Hence, as per legal advice. obtained, the intimation
was being submitted before the Hon'ble Civil Court aftertaking
·endorsement of Advocate for the petitioner.
29, It was further stated by respondent Nos. 2 and 3 that
E
originally land bearing Survey Nos. 459/2, 464, 465, 466/1 and
466/2, adme~suring 26.608 Sq.M. was jointly purchased by
Chandrakant Dhulabhai Patel and Chandulal Muljibhai Parikh
in 1961. In 1990, however, an understanding had been arrived
at between the heirs and legal representatives of Chandulal
F
Parikh and Chandrakant Dhulabhai Patel and as per partition,
50% land situated on the western side (Part 'A') fell to the share
of Chandrakant Patel whereas 50% land on the eastern side
(Part 'B') came to the share of Parikh family. It was further stated
that respondent Nos. 2 and 3 entered into Development AgreeG ment with Parikh family for 50% eastern side land (Part 'B') '
which came to the share of Parikh family and also with respondent No. 1 Chandrakant Patel for western side of land (Part
'A'). The scheme was thus jointly p1omoted for part 'A' land and
part 'B' land. In course of time, property 'A' became disputed
property, but there was no dispute as to property of part 'B'. If
H
PATEL RAJNIKANT DHULABHAI & ANR. v. PATEL 1187
'(
CHANDRAKANT DHULABHAI & ORS. [C.K. THAKKER, J.]
was also stated that part 'B' property abuts 30 metres wide road
A
while part 'A' property abuts 40 meters wide T.P. Road. Thus,
part 'A' property (suit property) was having better location and
higher commercial value.
-J.
30. Respondent Nos. 2 and 3 admitted that Madhuben
Rohit and Jasodaben Thaker deposited Rs. two lacs on OctoB
ber 15, 2004 for booking one of the shops which was to be
constructed on Part 'B' property. But after the disposal of Special Leave Petitions on January 10, 2005, the injunction came
to an end regarding part 'A' property. Under the circumstances,
request of Madhuben and Jasodaben for allotment of shop in c
part 'A' property instead of part 'B' property was favourably considered and accepted. Cases of Hemlataben Shah,
Rashmikaben and Ranjit Gulati were identical. Sale-deed in
favour of Dr. Tolaram Popat was executed on January 24, 2005,
i.e. after final disposal of SLP and there was no interim injuncD
tion at that time.
31. It was, therefore, submitted that respondent Nos. 2 and
3 had not created any right in favour of third party during the
operation of interim order and there was no question of taking
E
proceedings under the Contempt of Courts Act.
32. Regarding notice to petitioners, the respondents stated
that pursis, Ex. 88 was filed in the trial Court wherein details
had been supplied in respect of 11 transfer ·deeds which were
to be executed. Thereafter, again pursis, Ex. 106 was filed on
F
September 01, 2005 in which all details were given. Thus, they
have not violated the order of this Court.
33. Finally, it was stated;
"Without prejudice to the above, the respondents tender G
their unconditional apology to this Hon'ble Court."
;>"
34. In affidavit-in-rejoinder, the petitioners have stated that
after examining oral and documentary evidence, the competent Court passed a decree in favour of plaintiffs declaring
shares of plaintiffs and defendants. Meanwhile, however, the
H
•
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[2008] 10 S.C.R.
y
A
respondents disposed of several properties. It was reiterated
that illegally and with mala fide intention, the respondents ereated third party interest in gross defiance of interim orders and
by making inconsistent and contradictory statements. A false
Istatement was made by respondents in sale deeds and in agreements to sell that the title of the respondents over the property
.._
[
B
was 'clear and marketable'. As to properties part 'A; and 'B', it
was stated that the contention was wholly irrelevant inasmuch
as the trial Court decreed the suit by holding the plaintiffs as
joint owners of the property.
c
35. Further affidavit was thereafter filed by respondent Nos.
2 and 3 on February 25, 2008 on the question of title deeds. It
was stated that in sale deeds, a statement was made that "third
party has no right, title, interest or claim and the property (subject-matter of sale deed) was not under attachment". But it was
D also stated that the suit was pending and the sale-deeds were
.,,
executed subject to final decision in the suit. Thus, the respondents had acted bona fide. They have not only notified in the
sale-deeds the pendency of civil suit but also have gone a step
further and stated that the sale-deeds were being executed subE
ject to final decision in the pending suit. It was, therefore, submitted that the Contempt Petitions should be dismissed.
36. From the facts stated above, it is proved that there is
breach of interim orders passed by this Court.