CHANDRASHEKHAR GOVIND DAIWATKAR Vs. RAMDAS GOVINDRAO DAIWATKAR

JUDGEMENT

(1.) THE petitioners before this Court are the original plaintiffs in Special Civil Suit No. 1385 of 1995 which was instituted in the Court of the learned 4th Joint Civil Judge, Sr. Dn. , Nagpur, for partition, for separate possession of the shares of the petitioners and for consequential reliefs. In the said suit, an application for the grant of an interim injunction restraining the original defendants from alientating the suit property was dismissed by the learned trial Judge by an order dated 24-7-1997. The respondent herein is the first defendant to the suit for partition. The petitioner filed an appeal before this Court against the order of the learned trial Judge declining to grant an interim injunction. The appeal was admitted on 11-2-1998 and on the civil application taken out in the aforesaid appeal, an order was passed in terms of prayer Clause (a), by which all the respondents thereto including the respondent herein were restrained by an order of injunction from creating any third party interests and from alienating any part of the property mentioned in the schedule annexed to the civil application. The schedule of property which is appended as Annexure A to the civil application contains inter alia a reference at serial No. 1 to the property bearing Gat No. 141, P. H. No. 6, situated at Waddhamna in the Tahsil and district of Nagpur. After the order was passed by this Court on 11-2-1998, an effort was made by the bailiff on several occasions to serve the respondent. The first report of the bailiff dated 25-3-1998 states that the respondent herein was not present at his residence. Respondent Nos. 2 and 3 to the appeal from the order, who were respectively the brother and the mother of the respondent herein, were however present when the bailiff visited the residential premises of the respondents to effect service. Thereafter further attempts were made by the bailiff on 30-4-1998 and 24-8-1998. Eventually, on 2-10-1998 the bailiff again went to serve the notice upon the respondent and since it was stated that he was not available, the notice was pasted on the door of the residential house of the respondent. The bailiff has submitted a report to that effect to this Court. Subsequently, a registered letter was addressed to the respondent by the Registry of this Court at Nagpur. The postal packet contains an endorsement dated 16-2-1999 that intimation had been posted. The letter was returned back to the office with an endorsement dated 22-2-1999 to the effect that the letter had not been claimed and that it was accordingly being returned to the sender. The petitioner thereupon took out a civil application, C. A. No. 2852 of 1999, in the appeal against order for effecting substituted service and in paragraph 2 of the civil application a reference was made to the efforts which were made by the bailiff and thereafter by the registry to serve the respondent. The fact that the registered letter had been returned as not claimed was also adverted to and a statement was made before the Court that the respondent was avoiding service of the notice of the appeal. Accordingly, permission of the Court was sought for effecting substituted service under Order V, Rule 20 of the Code of Civil Procedure. The civil application was allowed on 6-7-1999 by an order of this Court. Thereafter the bailiff once again went to the very same premises at which the service had been attempted in the past and once again the respondent was not available upon which a copy of the notice of the Court was pasted on the premises. The bailiff has submitted a report on 16-8-1999. On 18-8-1999 the respondent entered appearance before this Court and the Vakalatnama of the learned Advocate, who is appearing on his behalf, came to be filed in the registry on the same date.

(2.) THE grievance of the petitioner is that thereafter on 10-9-2001 the respondent executed a sale-deed which has been registered in respect of the very same property that was the subject matter of the prohibitory order of injunction that was passed by this Court on 11-2-1998. In fact, in the contempt petition, it has been averred in paragraph 5 that almost 25 sale-deeds have been executed by the respondent after the order of injunction that was passed by this Court and that the respondent is, therefore, guilty of committing a contempt of the Court.

(3.) THE learned Counsel has urged that it is a well-settled principle of law that a prohibitory order of the Court need not be served on the party against whom it is granted in order to justify the action for the breach of such an order provided it is proved that the person complained against has the notice of the order aliunde. In this regard, reliance was placed on a decision of the Supreme Court in (Hoshiar Singh v. Gurbachan Singh) A. I. R. 1962 S. C. 1089. The learned Counsel urged that it is a well settled principle of law that the power of the High Court to punish for contempt is untramelled by other provisions of law inasmuch as that the power traces its origin to Article 215 of the Constitution of India. Reliance was placed on the decision of the Supreme Court in (Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar) A. I. R. 1992 S. C. 904, on the judgment of a Full Bench of the Madras High Court in (Vidya Charan Shukla v. Tamil Nadu Olympic Association) A. I. R. 1991 Madras 323, and upon the judgment of a learned Single Judge of this Court in (Ram Gopal Waghdhare v. Sudhir Ram Waghdhare and others) 1999 Vol. 101 (1) Bom. L. R. 15.