KANWAR SINGH SAINIversusHIGH COURT OF DELHI

                  (2011) 15 (ADDL.) S.C.R. 972


                     KANWAR SINGH SAINI
                                 v.
                     HIGH COURT OF DELHI
               (Criminal Appeal No. 1798 of 2009)
                      SEPTEMBER 23, 2011
B
        [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 Act-
D 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
      person that he had neither threatened to dispossess nor
    0
      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.
              Allowing the appeal, the Court
•
•
    G
            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; 990-
A-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 cross-
   examine 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
  court of law is permitted to be disregarded with such
0
  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) [997-
  H; 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 &
Co. v. Ashok Kr. Newatia & Anr. (2000) 2 SCC 367: 2000 (1)
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
Management, Arya Nagar Inter College, Arya Nagar, Kanpur,
through its Manager & Anr. v. Sree Kumar Tiwary & Anr. AIR
1997 SC 3071; Mis. GTC Industries Ltd. v. Union of India &
Ors. AIR 1998 SC 1566 and Jaipur Municipal Corpn. v. C.L. c
Mishra (2005) 8 SCC 423; Food Corporation of India v.
Sukha Deo Prasad AIR 2009 SC 2330; Hungerford
Investment Trust Ltd. (In voluntary Liquidation) v. Haridas
Mundhra & Ors. AIR 1972 SC 1826; The United Commercial
Bank Ltd. v. Their Workmen AIR 1951 SC 230; Smt. Nai Bahu
                                                               0
v. Lal Ramnarayan & Ors. AIR 1978 SC 22; Natraj Studios
Pvt. Ltd. v. Navrang Studio & Anr. AIR 1981 SC 537; A.R.
Antulay v. R. S. Nayak & Anr. AIR 1988 SC 1531; Union of
India & Anr. v. Deoki Nandan Aggarwal AIR 1992 SC 96;
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) 1o 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
                                                    G
  2007 (4) SCR 221        referred to     Para 23
  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.
       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.
c
          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
  that his statement had been recorded by the court. We failed
0
  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:
          26.4.2003:
          "Present: Ld. counsel for the plaintiff.
          Arguments on injunction application heard. No ground for
F         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/-
G                                                            CJ/Delhi
                                                         26-04-2003"
          29.4.2003:
          "Counsel for the plaintiff.
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.                                                       D
  Sd/
  (Kanwar Singh Saini)
                                                       Sd/-
                                                  CJ/DELHI
                                                 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.
                                                    R.O.&A.C.
                                                         Sd/-
  (Iqbal Ahmed)
                                                           Sd/-    G
                                                     CJ/DELHI
                                                     29.4.2003
  12.5.2003:
  "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
          Present: Plaintiff in person.
          Ld. Counsel for the defendant.
D
          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
E         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. Sree Kumar          c
 Tiwary & Anr, AIR 1997 SC 3071; Mis. GTC Industries Ltd.
v. Union of 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 D
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. E
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 F
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 G
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 of violation H
    994    SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A or breach of permanent injunction granted at the time of passing
  of the decree.
       11. In Food Corporation of India v. Sukha Dea 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
B 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
C 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
D 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 disposed of becomes a part
  of the decree and breach of such undertaking is to be dealt with
E 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
F 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
G 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
H be made in pursuance of the Order XXI Rule 32 CPC as the
 KANWAR SINGH SAINI v. HIGH COURT OF DELHI                 995
           [DR. B.S. CHAUHAN, J.)
CPC provides a particular manner and mode of execution and         A
therefore, no other mode is permissible. (See: Hungerford
Investment Trust Ltd. (In voluntary Liquidation) v. Haridas
Mundhra & Ors., AIR 1972 SC 1826).
      13. There can be no dispute regarding the settled legal
proposition that conferment of jurisdiction is a legislative B
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, ii 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 c
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 D
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 E
& Anr., AIR 1988 SC 1531; Union of India & Anr. v. Deoki
Nandan Aggarwal, AIR 1992 SC 96; Kamal Improvement
 Trust, Kamal v. Prakash Wanti (Smt.) (Dead) & Anr., (1995)
5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. lndure Pvt.
Ltd. & Ors., AIR 1996 SC 1373; State of Gujarat v. Rajesh F
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).                                  G
     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".         H
    996 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


A 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.
8 K.S.Wadke & Ors., AIR 1975 SC 2238; and Sushi/ 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
c contempt observing that enforcement of the order in civil
  contempt is for the 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
0 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.
E
        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).
F
        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
G decree was passed on the basis of admission/undertaking
  made by the appellant on 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
H been entertained. Such an application is maintainable in a case
  KANWAR SINGH SAINI v. HIGH COURT OF DELHI                   997
            [DR. B.S. CHAUHAN, J.]

where there is violation of interim injunction passed during the A
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 B
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         c
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 coniempt for the reason that it is for the sole D
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 E
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 F
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 G
757; Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14;
and Mu"ay & 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 H
    998    SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A of proceedings in which the alleged false affidavit had been
  filed. The instant case is quite distinguishable on facts from
  those 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
8 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
c   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 sec 795).                                        •
0
       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
E 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 wilful or not and the court is bound to execute
F 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: Niai Mohammad & Ors. v. State of
G Haryana & Ors, (1994) 1$ 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.
H
  KANWAR SINGH SAINI v. HIGH COURT OF DELHI                  999
            [DR. B.S. CHAUHAN, J.]

     20. The application filed under Order XXXIX Rule 2A CPC        A
bearing Misc. No.89/2003 by the decree holder contains the
following pleadings and prayer was made to punish the s&id
contemnors:
    "To his utter amazement, the petitioner-applicant on 4th of
    August 2003 on visiting the site (148, Village Khirki, New      B
    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              c
    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 as accepted by the learned Civil Judge on
    12th May 2003)."
                                                                    D
     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. E
    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 F
    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 G
    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         H
    1000 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R


A       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.
B       This Court has only to see that prima facie case exist for
        referring the contempt."
        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
c       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
D 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 or in great haste without
  following the procedure prescribed in CPC. Once the suit has
E 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
F 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
G the doctrine of ex debito justitiae has to be applied in 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
H contempt proceedings not for disobeying any judgment or order
 KANWAR SINGH SAINI v. HIGH COURT OF DELHI 1001
           [DR. B.S. CHAUHAN, J.]

but for taking inconsistent pleas in the reply filed by the A
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 B
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 C
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 D
casual and cavalier manner.
     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             E
& Ors. v. A. G.L. lrudayaraj &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    F
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.        G
     24. In Oaroga 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       H
    1002 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A 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 102. The
  Court further explained the scope of contempt proceedings
8 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
c        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 aealt
D
        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
E       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
F 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 the matter within the
  ambit of the said provision. The case should not rest only on
  surmises and conjectures.
G
        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
H       serious one. The court is both the accuser as well as the
 KANWAR SINGH SAINI v. HIGH COURT OF DELHI 1003
           [DR. B.S. CHAUHAN, J.]

    judge of the accusation. It behoves the court to act with as A
    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 B
    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."
                                                                 c
                                           (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              D
removed structure falls is attracted.
     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      E
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.
                                                                 F
B.B.B.                                       Appeal allowed.