REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1798 of 2009

Kanwar Singh Saini                   …Appellant

Versus

High Court of Delhi                   …Respondent                      

J U D G M E N T

Dr. B.S. Chauhan, J.

1. ‘Liberty’ - the most cherished 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 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  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.  

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 Rs.2,10,000/- and got  

the said deed registered.  

B. Mohd. Yusuf filed  suit No. 106/2003 in the Civil Court, 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.  

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  

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over its possession to the plaintiff but denied the allegation that he had  

made any attempt to 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 in person that he  

had  neither  threatened  to  dispossess  nor  he  would  dispossess  the  

plaintiff. The plaintiff’s 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 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 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 on 11.9.2003 but none  

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appeared  to  press  the  same.   The  High  Court  disposed  of  the  

application  vide  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.  

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 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.  

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 matter to the High Court to be dealt with under the  

provisions of Act 1971.

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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  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  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 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  the  case  and  therefore,  the  

judgment and order of the High Court convicting the appellant is liable  

to be set aside.   

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5.      Mr.  Shree Prakash Sinha,  learned counsel  appearing for  the  

plaintiff - Mohd.Yusuf, intervener, has opposed the appeal  contending  

that  the  appellant  and  his  family  members  had  made  false  and  

misleading statements to scuttle the interest 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  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 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 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  

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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 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 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 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. [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 M/s Mangat Singh Trilochan  

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Singh thr. Mangat Singh (dead) 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  

appellant/defendant  appeared  on  29.4.2003  in  person  and  filed  his  

written statement. It was on the same day 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  

appellant/defendant 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 as  

under:  

      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.  

Sd/- CJ/Delhi 26-04-2003"  

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29.4.2003:  

"Counsel for the plaintiff.    Defendant in person.  He states that he is not likely to dispossess the plaintiff  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 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.  

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  29.4.2003"  

"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  of the plaintiff may kindly be disposed of.  

    R.O.&A.C.         Sd/-  

    (Iqbal Ahmed)                                Sd/-                           CJ/DELHI                             29.4.2003  

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12.5.2003:   

"I have heard the statement of defendant and I accept the  same.  My suit  be  disposed  of  in  terms  of  statement  of  defendant.  

RO&AC  

     Sd/-  (Mohd. Yusuf)

 Sd/-   CJ/DELHI  

       12.5.2003"  

Thereafter the learned Judge passed the following order:-  

" 12.5.2003  

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"  

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  

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application under Order XXXIX Rule 2A CPC or under the Act 1971  

could be entertained by the Civil Court 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 XXXIX  Rules 1 & 2  

CPC,  which  is  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  

be passed in the case and if the case is ultimately dismissed, the interim  

order stands nullified 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. Sree Kumar Tiwary  

& Anr., AIR 1997 SC 3071; M/s. GTC Industries Ltd. v. Union of  

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India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corpn. v.  

C.L. Mishra, (2005) 8 SCC 423).

10.     In case there is a grievance of non-compliance of the terms of the  

decree passed in the civil suit, the remedy available to the aggrieved  

person is to approach the execution court under Order XXI Rule 32  

CPC which provides for elaborate proceedings in which the parties can  

adduce  their  evidence  and  can  examine  and  cross-examine  the  

witnesses  as  opposed  to  the  proceedings  in  contempt  which  are  

summary in nature. Application under Order XXXIX Rule 2A CPC is  

not maintainable once 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  Act  1971 when an  effective  and alternative  

remedy  is  not  available  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 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  

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contempt proceedings. There is a complete fallacy in the argument that  

the provisions of Order XXXIX Rule 2A CPC would also include the  

case of violation or breach of permanent injunction granted at the time  

of passing of the decree.  

11. In  Food Corporation of  India  v.  Sukha Deo Prasad,  AIR  

2009 SC 2330,  this  Court  held that  the power  exercised by a  court  

under Order XXXIX Rule 2A is punitive in nature, akin to the power to  

punish for civil contempt under the Act 1971.  Therefore, such powers  

should be exercised with great caution and responsibility.  Unless there  

has been an order under Order XXXIX Rule 1 or 2 CPC in a case, the  

question of entertaining an application under Order XXXIX Rule 2A  

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 XXXIX Rule 2A.  The contempt jurisdiction cannot be  

used for enforcement of decree passed in a civil suit.

    12. 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  

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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 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 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 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 manner and  

mode of execution  and therefore, no other mode is permissible. (See:  

Hungerford  Investment  Trust  Ltd.  (In  voluntary  Liquidation) v.  

Haridas Mundhra & Ors., AIR 1972 SC 1826).   

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13. There can be no dispute regarding the settled legal proposition  

that  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 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  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. (Vide: The United  

Commercial Bank Ltd. v. Their Workmen AIR 1951 SC 230;  Smt.  

Nai  Bahu  v.  Lal  Ramnarayan & Ors.,  AIR 1978 SC 22; Natraj  

Studios  Pvt.  Ltd.  v.  Navrang Studio  & Anr., AIR 1981 SC 537;  

Sardar  Hasan  Siddiqui  &  Ors.  v.  State  Transport  Appellate  

Tribunal, U.P., Lucknow & Ors.  AIR 1986 All. 132; A.R. Antulay  

v. R.S. Nayak & Anr., AIR 1988 SC 1531; Union of India & Anr. v.  

Deoki Nandan Aggarwal,  AIR 1992 SC 96;  Karnal Improvement  

Trust,  Karnal  v.  Prakash Wanti  (Smt.)  (Dead) & Anr.,  (1995)  5  

SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. &  

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Ors.,  AIR  1996  SC  1373; State  of  Gujarat  v.  Rajesh  Kumar  

Chimanlal Barot & Anr., AIR 1996 SC 2664; Kesar Singh & Ors. v.  

Sadhu,  (1996) 7 SCC 711;  Kondiba Dagadu Kadam v. Savitribai  

Sopan Gujar & Ors.,  AIR 1999 SC 2213; and Collector of Central  

Excise,  Kanpur v.  Flock (India) (P) Ltd.,  Kanpur, AIR 2000 SC  

2484).  

         When  a  statute  gives  a  right  and  provides  a  forum for  

adjudication  of  rights,  remedy  has  to  be  sought  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  

available to the person aggrieved is to get adjudication of rights under  

the said Act. (See:  Doe d. Rochester (BP) v. Bridges, 109 ER 1001;  

Barraclough  v.  Brown,  1897  AC 615;  The Premier  Automobiles  

Ltd. v. K.S.Wadke & Ors., AIR 1975 SC 2238; and  Sushil Kumar  

Mehta v. Gobind Ram Bohra (Dead) thr. L.Rs., (1990) 1 SCC 193).

14. In Samee Khan v. Bindu Khan, AIR 1998 SC 2765, this Court  

explained  the  distinction  between  a  civil  and  criminal  contempt  

observing that  enforcement  of the order in civil  contempt  is for  the  

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benefit of one party against another, while object of  criminal contempt  

is to uphold the majesty of law and the dignity of the court. The scope  

of  the  proceedings  under  Order  XXXIX  Rule  2A  CPC  is  entirely  

different. It is a mode to compel the opposite party to obey the order of  

injunction by attaching the property and 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.   

15. 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. (Vide:  

State of Punjab & Ors.  v.  Mohinder Singh Randhawa & Anr.,  

AIR 1992 SC 473).

16. The case requires to be considered in the light of the aforesaid  

settled legal proposition.  

 Whatever may be the circumstances, the court decreed the suit  

vide judgment and decree dated 12.5.2003. The said decree was passed  

on  the  basis  of  admission/undertaking  made  by  the  appellant  on  

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29.4.2003 and the  pleadings  taken by  him in  his  written  statement.  

Therefore,  in  a  case  where  there  was  any  disobedience  of  the  said  

judgment 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 had ever been passed. Thus, the appropriate remedy available to  

the  decree   holder-Mohd.  Yusuf  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 to get  

the execution of the order. In view thereof, all subsequent proceedings  

were unwarranted.  

17.    Application of the decree holder had been for violation of the  

undertaking which at the most could 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 of a specific order made by the  

court in the suit is civil contempt for the reason that it is for the sole  

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benefit  of the other  party to the civil  suit.  This case remains to the  

extent that, in such a fact situation, the administration of justice could  

be undermined if the order of a competent 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 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.  

18. The High Court in para 29 of the impugned judgment has taken  

note of various judgments of this Court including Dhananjay Sharma  

v. State of Haryana & Ors., (1995) 3 SCC 757; Rita Markandey v.  

Surjit Singh Arora, (1996) 6 SCC 14; and Murray & Co. v. Ashok  

Kr. Newatia & Anr., (2000) 2 SCC 367,  wherein it has been held that  

filing of a false affidavit or taking false pleadings in the court amounts  

to  criminal  contempt.  The  High  Court  failed  to  appreciate  the  

nature/status  of  proceedings in which the alleged false  affidavit  had  

been filed.  The instant case is quite distinguishable on facts from those  

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cases.  In the instant case, proceedings under Order XXXIX Rule 2A  

CPC were not maintainable at all. Had the complainant Mohd. Yusuf  

filed the execution proceedings under Order XXI Rule 32 CPC, the  

court could have proceeded in accordance with law without going into  

the averments raised therein by the appellant.   

19. In a given case if the court grants time to a tenant to vacate the  

tenanted  premises  and the  tenant  files  an  undertaking to  vacate  the  

same after expiry of the said time, but does not vacate the same, the  

situation  would  be  altogether  different.  (See:  Sakharan  Ganesh  

Aaravandekar  &  Anr.  v.  Mahadeo  Vinayak  Mathkar  &  Ors.,  

(2008) 10 SCC 186; and Mahender Kumar Gandhi v. Mohammad  

Tajer Ali & Ors., (2008) 10 SCC 795).

In an appropriate case where exceptional circumstances exist,  

the court may also resort to the provisions applicable in case of civil  

contempt, in case of violation/breach of undertaking/judgment/order or  

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 not be bothered whether the disobedience of the decree is  

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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 be  

awarded to him. (See: Niaz Mohammad & Ors. v. State of Haryana  

& Ors, (1994) 6 SCC 332;  Bank of Baroda v.  Sadruddin Hasan  

Daya & Anr., AIR 2004  SC 942;  and  Rama  Narang  v.  Ramesh  

Narang & Anr., AIR 2006 SC 1883)  

Thus, for violation of a judgment or decree provisions of the  

criminal contempt are not attracted.  

20. The  application  filed  under  Order  XXXIX  Rule  2A  CPC  

bearing Misc. No.89/2003 by the decree holder contains the following  

pleadings and prayer was made to punish the said contemnors:  

“To his utter  amazement,  the petitioner-applicant  on  4th of  August  2003 on visiting  the  site  (148,  Village  Khirki,  New  Delhi)  learnt  that  the  respondents  in  league  and  collusion  with  one  another  in  deliberate  and  wilful  breach  of  the  aforementioned  statement,  assurance  and/or  undertaking had broken open locks and doors of  the premises in reference 148, Village Khirki, New  Delhi  and  taken  possession  thereof,  thereby  committing grave contempt  of  the Hon’ble Court  (by breach of the aforementioned statement, assurance  and/or undertaking furnished on 29th of April 2003  

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as accepted by the learned Civil Judge on 12th May  2003).”

The Civil Court  considered the said application; took notice of  

the facts and in its order dated 16.2.2004 held:

“It also shows that plaintiff was in possession of  the  suit  property  on  the  date  of  making  the  statement.   As  on  today,  the  respondents  are  in  possession  of  the  suit  property.   Even  the  respondent  had  not  denied  this  fact  rather  their  contention is that plaintiff was never in possession  of the suit property.  Further, a local commissioner  was appointed and has also corroborated the fact  that  respondents  are  in  possession.   Therefore,  prima  facie,  it  appears  that  plaintiff  has  been  dispossessed  from  the  suit  property  by  the  respondents.   The  contention  of  the  respondent  no.1  that  plaintiff  was  never  in  possession  runs  counter to the written statement of defendant filed  in  the  original  suit.   Moreover,  this  fact  needs  evidence  and  evidence  will  be  led  only  before  Hon’ble High Court.  Therefore, prima facie case  for  reference  of  the  contempt  petition  has  been  made out.”  

The Court  reached the following conclusion :

“As  to  the  contention  of  learned  counsel  for  respondent  no.1  that  evidence  is  required  before  making a reference, the provision of section 11 of  the Contempt of Courts Act, 1971 are to be noted.  Section 11 says that it is the Hon’ble High Court  which  has  jurisdiction  to  inquire  into  or  try  the  contempt  petition.  Therefore,  the contention has  no force.  This Court has only to see that prima  facie case exist for referring the contempt.”

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The Court made the reference as under:  

“However,  against  other  respondents  there  is  no  material for making the reference.  In view of the  above,  a  reference  is  made  to  the  Hon’ble  High  Court  with  humble  prayer  to  try  the  contempt  petition against respondent no.1 and to punish the  guilty  accordingly.   Application  is  disposed  of  accordingly.”

21. In view of the above discussion, as such proceedings were not  

maintainable, the order of reference itself was not warranted.  It also  

becomes crystal clear that the appellant had been subjected to unfair  

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  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 said plaintiff 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  

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order to redress the grievances of the appellant/defendant.  Judgment  

and order impugned cannot be sustained under any circumstance.

22. The  courts  below  have  proceeded  with  criminal  contempt  

proceedings not for disobeying any judgment 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;  and to  punish  the  

contemnor as he has 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 sent  him to jail  but did not  

grant any relief so far as the enforcement of the order dated 12.5.2003  

is concerned.  We failed 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 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.  

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23. Learned counsel for the contesting respondent has placed a very  

heavy reliance on the judgments of this Court in Palitana Sugar Mills  

Private  Limited  &  Anr.  v.  Vilasiniben  Ramachandran  &  Ors.,  

(2007) 15 SCC 218; and C. Elumalai & Ors. v. A.G.L. Irudayaraj &  

Anr., AIR 2009 SC 2214, wherein this court held that wherever there  

is a wilful disobedience/contumacious conduct – deliberate flouting of  

the order of the court, it amounts to contempt and it becomes the duty  

of the court to exercise its inherent power to set the wrong right as a  

party cannot be permitted to perpetuate the wrong by disobeying the  

order further.

In  the  case  at  hands,  the  court  initiated  criminal  contempt  

proceedings  but  ultimately  after  convicting  the  appellant  did  not  

enforce the order passed by the Civil Court dated 12.5.2003.              

24.        In Daroga Singh & Ors. v. B.K. Pandey, (2004) 5 SCC 26,  

this Court rejected the plea of the contemnors that the High Court could  

not initiate the contempt proceedings in respect of the Contempt of the  

Courts  subordinate  to  it  placing  reliance  upon  earlier  judgments  in  

Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149;  

Brahma Prakash Sharma & Ors. v. The State of U.P., AIR 1954 SC  

10; and  State of Madhya Pradesh v. Revashankar,  AIR 1959 SC  

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102. The Court further explained the scope of contempt proceedings  

observing:

“..........  For the survival  of  the rule  of  law the   orders  of  the  courts  have  to  be  obeyed  and   continue  to  be  obeyed  unless  overturned,   modified or stayed by the appellate or revisional   courts. The court does not have any agency of its   own to enforce its orders. The executive authority   of the State has to come to the aid of the party   seeking implementation of the court orders. The   might  of  the State  must  stand behind the court   orders for the survival of the rule of the court in   the  country.  Incidents  which  undermine  the   dignity of  the courts  should be condemned and  dealt with swiftly....... .......... If the judiciary has   to perform its duties and functions in a fair and   free manner, the dignity and the authority of the   courts has to be respected and maintained at all   stages  and  by  all  concerned  failing  which  the   very constitutional scheme and public faith in the   judiciary runs the risk of being lost.”

25.       The contempt proceedings 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.  There  must  be  a  clear-cut  case  of  

obstruction of administration of justice by a party intentionally to bring  

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the matter within the ambit of the said provision. The case should not  

rest only on surmises and conjectures.  

         In  Debabrata Bandopadhyay & Ors. v. The State of West  

Bengal & Anr., AIR 1969 SC 189, this Court observed as under:

“A question whether there is contempt of court or   not is a serious one. The court is both the accuser   as well as the judge of the accusation. It behoves   the court to act with as great circumspection as   possible  making  all  allowances  for  errors  of   judgment  and difficulties  arising  from inveterate   practices in courts and tribunals. It is only when a   clear  case  of  contumacious  conduct  not   explainable otherwise,  arises  that  the contemnor   must be punished……… Punishment under the law   of  Contempt  is  called  for  when  the  lapse  is   deliberate and in disregard of one’s duty and in   defiance  of  authority.  To  take  action  in  an  unclear case is to make the law of contempt do   duty  for  other  measures  and  is  not  to  be   encouraged.”

                                                                              (Emphasis added)    

26. In view of the above, as the application under Order XXXIX  

Rule 2A 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.  

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27. Thus, taking into consideration, the fact situation involved in  

the case,  the appeal  is  allowed.  The impugned judgment  and order  

dated 20.7.2009 passed by the High Court of Delhi at New Delhi in  

Contempt Case (Crl.) No. 9 of 2004 is hereby set aside. His bail bonds  

stand discharged.   

28. However, we clarify that any observation made in this judgment  

shall not affect, in any manner, merit of other cases pending between  

the parties in regard to the Suit property.    

    ……………………………J.      (P. SATHASIVAM)

    ……………………………J.        (Dr. B.S. CHAUHAN)

New Delhi,  September 23, 2011

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