RAKESH KHANDELWAL Vs. KRISHAN KUMAR KHANDELWAL

JUDGEMENT

(1.) This petition impugns an order dated 4.6.2011, whereby the petitioner's appeal against the Trial Court's order dated 3.3.2001 was dismissed. In an application under Order 39 Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") The respondent/plaintiff had alleged before the Trial Court, that the petitioner/defendant No.1 had wilfully violated its order dated 6.5.1999, by which he was restrained from disposing off the suit property: being 4161-65, Gali Shahtara, Ajmeri Gate, Delhi, till the next date of hearing. It was submitted that the defendant had sold it off on 9.5.1999 and executed a Sale Deed on 17.5.1999. The defendant's defence was that he was unaware of the Trial Court's order and further submitted that he had already sold the property on 3.4.1999. The Trial Court was of the view that the said stand of the defendant was belied from the record of his appearance/presence marked in the order sheet commanding the restraint on 6.5.1999 and if the property had already been sold by that date, it ought to have been brought to the notice of the Trial Court by the counsel representing him in his presence. Furthermore, the Trial Court noted that his application seeking rejection of the plaint under Order 7 Rule 11 of the Code too did not mention the alleged prior sale. The Trial Court also noted that the affidavit dated 15.2.2000 by the purchaser, mentioned an Agreement to Sell but a copy of the same had not been adduced which further falsified the petitioner/defendant's case. The Trial Court further noted that payment for the aforesaid sale was stated to have been deposited in the bank but no such bank statement was filed in the Court. Besides the sale deed showed that cash was received from the vendee in advance but the sale deed did not provide details thereof. The Trial Court was of the view that the seller could have produced the records of his bank statement. Furthermore, the seller had already sold the land on 3.4.1999, then there was no reason for him to have executed the Sale Deed on 17.5.1999 which was after the restraint order was passed. Therefore, he had knowingly violated the Trial Court's order. The Appellate Court found that the appeal lacked merit and the impugned order therein did not suffer from any illegality or infirmity in view of the clear and cogent reasons of the Trial Court. Hence, the appeal was dismissed.

(2.) On 26.9.2011, while issuing notice to the respondent in this petition, this Court was of the view that "before any decision is taken by this Court a notice should also go to the purchasers of the property in question because in case any adverse order is passed by this Court against the petitioner, it may have impact on their interest also inasmuch as the admitted position is that sale deeds in their favour were executed by the petitioner when the stay order against sale of the property in question was in operation." Therefore, it was observed that the purchasers ought to be accorded an opportunity to put forth their case before the case is decided. Notices were issued to the purchasers, namely Mst. Shaheen Begum and Mst. Rabia Begum, who were impleaded as respondent Nos. 2 & 3. The proceedings show that on 12.12.2012, the service was complete on the respondents. Respondent No.1 appeared before the Court on 22.4.2013, in person and stated that he did not wish to file a reply and the case was renotified for arguments on 27.8.2013. The purchasers also have chosen to not file their reply.

(3.) The learned counsel for the petitioner submits that the Trial Court had erred in not giving an opportunity to the petitioner for producing evidence for examination of the purchasers, in support of the defence that the Sale Deed had been completed earlier in time; that the property had already been sold on 3.4.1999 i.e., before the filing of the suit and it is only the Sale Deed which was executed on 17.5.1999; that the standard of proof for establishing a charge of contempt, civil or criminal, has to be proved beyond reasonable doubt and the charge cannot be decided without leading evidence. He relied upon this Court's judgement in Jitender Kumar v. Jai Kishan Aggarwal,2007 145 DLT 304, which according to the learned counsel for the petitioner, was ignored by the Trial Court. He reiterates that since the property was sold prior to the passage of the restraint order there could be no breach of the latter; that the Trial Court had failed to consider the affidavits of the purchasers and erred in not giving an opportunity to the petitioner for relying upon them. He further submits that there was no wilful disobedience of the impugned order and the petitioner had bona fidely misconstrued the order; therefore, he cannot be held for violation of the same. He relied upon the dicta of the Supreme Court in State of Bihar Vs. Rani Sonahati, 1961 AIR(SC) 221 in support of this contention. He then submits that the learned Trial Court had failed to appreciate that the petitioner had no actual knowledge of the order dated 6.5.1999, hence, he could not be charged for wilful disobedience or breach of the same. He further argued that the petitioner/seller had acted in good faith without any motive to defeat or defy the Court's order; besides the order did not exist on 17.5.1999 when the formal sale deed was executed because the order of 6.5.1999 was passed in the presence of the petitioner as well as his counsel. Therefore, the petitioner knew and would otherwise be deemed to have knowledge of the order.