Final Order 8

Order Details: COPY OF ORDER
Pdf Text: Contempt Petition No.14/23
ATTAR CHAND Vs. SUNITA
04.10.2024
Present: None for applicant.
Ld. Counsel for respondents.
This is an application u/o 39 Rule 2A on behalf of plaintiff
alleging violation of undertaking dt. 27.08.21 given by defendant no.1.
Arguments heard on behalf of respondents.
Be awaited for applicant.
Put up for arguments at 11:00 AM.
Bharat Aggarwal
CJ-08 (Central)
04.10.2024/Delhi
At 12:34 PM
Present: SPA of Applicant in person.
Mr. Mohit Kumar, ld. LAC for both defendants.
At request, be passed over for appearance of counsel for the
applicant.
Put up at 02:00 PM.
Bharat Aggarwal
CJ-08 (Central)
04.10.2024/Delhi
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At 03:12 PM
Present: None.
Put up for orders, at 04:00 PM.
Bharat Aggarwal
CJ-08 (Central)
04.10.2024/Delhi
At 04:15 PM
Present: None.
Vide this order, I shall decide the present application under
Order XXXIX Rule 2 A of CPC filed by the plaintiff.
1. The applicant/plaintiff has prayed for initiation of contempt
proceedings against the defendants for violation of the undertaking given
by the defendant no.1 on 27.08.2021 and further directions have been
sought to direct Sh. Bal Kishan to vacate the suit premises immediately.
2. It is stated that on 27.08.2021, an undertaking was given by
the defendant no.1 that possession of the suit property shall not be handed
over to any third person and on the basis of such undertaking, the interim
application filed by the plaintiff under Order XXXIX Rule 1 and 2 of CPC
was disposed off. It is alleged that despite such undertaking, defendants
have created third party interest by handing over the possession of the
premises to one Sh. Bal Kishan and he has been allowed to stay in the
property since 03.03.2023. Accordingly, it is stated that defendants have
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committed contempt of the court by flouting the undertaking given and
creating third party interest in the suit property.
3. Reply has been filed by the defendants to such application,
whereby
inter alia it is stated that defendants have not created any third
party interest in the suit property and Sh. Bal Kishan is the brother-in-law
of the defendant no.1 and brother of Sh. Hari Kishan i.e. the defendant
no.2 who has been residing with the family since 2013.
4. Arguments of the respondents were heard and the
application, reply and documents have been perused. No arguments were
advanced on behalf of the applicant despite repeated pass-overs since
morning.
5. The present suit has been filed by the plaintiff seeking
mandatory injunction directing the defendants to evict from the suit
property i.e. property bearing no.861/2, Tilak Gali, Kashmiri Gate, Delhi –
110 006 and further permanent injunction restraining the defendants from
handing over the possession to any other person. Plaintiff has alleged that
his wife expired on 05.05.2017 and thereafter, the defendant started
residing with the plaintiff as he is a senior citizen and suffering from
serious ailments. It is further stated that plaintiff has filed complaints
against the defendant and he has terminated the license of the defendants
and also issued legal notice dated 04.01.2021 after which the defendants
have become trespassers in the suit property. Defendants have opposed the
suit by
inter-alia stating that defendant no.1 was adopted by plaintiff and
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his late wife Smt. Kuntia. Defendants have further stated that the suit
property is her ancestral home and defendant no.1 is paying the rent in
respect of the suit property.
6. The fulcrum of the allegations of the applicant is that the
defendant no.1 therein i.e. wife of the defendant no.2 gave a statement on
27.08.2021 whereby she stated that she shall not hand over the possession
of the suit premises to any third person. It is the allegation of the applicant
that depsite such undertaking one Sh. Bal Kishan has been allowed by the
defendants to stay in the premises since 03.03.2023.
7. From the very plain reading of Order XXXIX Rule 2A of
CPC it becomes apparent that the present application filed by the plaintiff/
applicant is bereft of any merit. The provision contained under Rule 2 A of
Order XXXIX CPC is reproduced below for better understanding.
[2A. Consequence of disobedience or breach of
injunction.—(1) In the case of disobedience of any
injunction granted or other order made under rule 1
or rule 2 or breach of any of the terms on which the
injunction was granted or the order made, the Court
granting the injunction or making the order, or any
Court to which the suit or proceeding is transferred,
may order the property of the person guilty of such
disobedience or breach to be attached, and may also
order such person to be detained in the civil prison
for a term not exceeding three months, unless in the
meantime the Court directs his release.
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(2) No attachment made under this rule shall remain
in force for more than one year, at the end of which
time, if the disobedience or breach continues, the
property attached may be sold and out of the
proceeds, the Court may award such compensation as
it thinks fit to the injured party and shall pay the
balance, if any, to the party entitled thereto.]
8. A bare reading of aforesaid rule would show that there must
be a deliberate disobedience or breach of injunction order granted in
favour of the applicant under Order XXXIX Rule 1 and 2 of CPC for the
present application to be maintainable. The defendants/non-applicants
have filed election ID Card, Aadhar Card, E-Shram Card, certificate of
person with disabilities issued by Government of NCT of Delhi, PAN
card, bank account statement of Indian Bank of Sh. Bal Kishan which are
all reflecting the suit property as his residential address. Bare perusal of
such documents shows that some of the documents pertains to year 2018
which is much prior to even the institution of the present suit itself. Even
otherwise, such person Sh. Bal Kishan is quite apparently not having any
independent claim to the suit property as such and is claiming his rights
through the defendants and therefore, it cannot be stated that defendants
have violated the undertaking dated 27.08.2021. The Hon’ble High Court
of Delhi has in
Cross Fit LLC v. Renjith Kunnumal & Ors. [2023: DHC:
7334]
inter alia observed that there has to be strict and irrefutable proof of
disobedience for a punitive action to follow under Order XXXIX Rule 2 A
of CPC and such powers are not to be exercised on strong suspicion itself.
Bare perusal of the application
per se shows that the application has been
filed on account of suspicion and the documents relied upon by the non-
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applicants/ defendants clearly show that Sh. Bal Kishan has not been
inducted in the property by the defendants pursuant to the undertaking
dated 27.08.2021 and has been residing therein even prior to the institution
of the present suit.
9. The applicant has also not filed any documents at all to
even
prima facie show alleged disobedience at behest of the non-applicant.
It appears that the applicant has filed the present application in haste
without having any merit whatsoever.
10. Accordingly, the application is dismissed and disposed off.
File be consigned to Record Room, after due compliance.
Bharat Aggarwal
CJ-08 (Central)
04.10.2024/Delhi
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