KAMALABAI S NAIK Vs. DHANANJAY S NAIK

JUDGEMENT

(1.) The respondents 2 and 3 in City Civil Court (C.C.C.A.) No. 40 of 1995 pending on the file of this Court are the petitioners 1 and 2 respectively in this contempt case. The petitioners complain that the sole respondent herein, namely, Dhananjay S. Naik, who is the appellant in C.C.C.A. No. 40 of 1995, is willfully and wantonly disobeying the order of this Court dated 20/04/1995 passed in C.M.P. No. 3536 of 1995 in C.C.C.A. No. 40 of 1995 and has been indulging in abuse of the process of law by filing frivolus legal proceedings in Courts with sole and deliberate intention to thwart implementation of the order of this Court. Therefore, the petitioners have prayed for punishing the respondent for his alleged willful disobedience of the order of this Court dated 20/04/1995 referred to above. This Court admitted the contempt Case on 15-2-1996 and ordered notice in Form No. X. On service of notice, the respondent has put in appearance through his counsel Smt. C. Jayashree Sarathy and filed his counter. We heard the learned counsel for the parties.

(2.) The background facts leading to the filing of this Contempt Case be stated briefly as under : Anand Vijaya S. Naik, elder brother of the respondent, filed suit O.S. No. 1609 of 1983 in the Court of the III Additional Judge, City Civil Court, Secunderabad for partition and separate possession of plaint Schedule I and II properties by metes and bounds, rendition of accounts and mesne profits. The respondent, the first petitioner, the second petitioner in the Contempt Case are the defendant No. 1, defendant No. 2 and defendant No. 3 respectively in the suit. Item I in Schedule I is the house property called "Mukthashram" bearing Municipal Registration No. 6-3-1215 situate at Begumpet, Hyderabad, with which we are concerned in this case. In O.S. No. 1609 of 1983, the respondent, in his written statement, inter alia, prayed the Court to the following effect :

(3.) The learned III Additional Judge passed the preliminary decree on 7-10-1994 on the following terms : "1. that the plaintiff and defendants 1 to 3 are entitled to 1/4th share each in items 1 and 2 of Schedule I properties and for 1/5th share each in item No. 3 of plaint schedule I properties. 3. that the plaintiff and defendants 1 to 4 are entitled for 1/5th share in item No. 3, and the 1/5th share of defendant No. 4 (deceased) shall be divided equally between the plaintiff and defendant No. 1 i.e., half share each. 2. and that the plaintiff and defendants 1 to 3 are entitled to 1/4the share each in movable items of plaint Schedule-II. 4. that the plaintiff is also entitled for rendition of accounts from defeudent No. 1 in respect of items 1 and 2 of Schedule of I and Schedule of II properties from the date of death of Sri S. V. Naik i.e., from 29-5-1981 till filing of the suit. 5. that the defendants 1 to 3 do pay to the plaintiff a sum of Rs. - towards costs of the suit." The respondent, being aggrieved by the judgment and decree dated 7-10-1994 made in O.S. No. 1609 of 1983 preferred C.C.C.A. No. 40 of 1995 to this Court, which appeal is pending on the file of this Court for adjudication. This Court, in C.M.P. No. 3536 of 1995 filed in the said C.C.C.A. No. 40 of 1995 by the respondent, passed the following order on 20/04/1995 : "It is further ordered that only the passing of final decree in O.S. No. 1609/83 on the file of Court of III Additional Judge, Secunderabad be and hereby stayed only. It is further ordered that all the other proceedings shall go on pending further orders on this petition. "In pursuance of the interim order of this Court dated 20/04/1995 and at the instance of the petitioners herein, the III Additional Judge by an order dated 9-11-1995 passed in I.A. No. 2406 of 1995 appointed Sri Devendra Kumar Jain, as an Advocate-Commissioner to conduct the final decree proceedings. The enquiry proceedings were posted before the Advocate-Commissioner on 9-11-1995. On that day, the respondent filed a letter dated 9-11-1995 before the Advocate-Commissioner requesting the latter to postpone the enquiry to 25-11-1995 on the ground that the respondent was advised by his doctor to undergo a medical check-up on 10-11-1995. The Advocate-Commissioner adjourned the proceedings to 18-11-1995. In the meanwhile the respondent filed a suit O.S. No. 454 of 1995 in the Court of the III Additional Judge, City Civil Court, Secunderabad on 7-11-1995 against the petitioners 1 and 2 and 6 others, seeking a declaration that the agreement of sale dated 14-12-1991 executed by the first petitioner and also the agreement of sale deed 14-12-1991 executed by the second petitioner in favour of the defendant Nos. 3 to 7 as null and void and for a consequential direction to the petitioners 1 and 2 to sell, transfer and convey their respective shares in the suit schedule property in favour of the respondent, upon the respondent depositing the sum of Rs. 1,90,000.00. The respondent, in the said suit, also sought injunctive relief against the defendents 3 to 7 restraining them from entering into the suit schedule property. The suit schedule property in O.S. No. 454 of 1995 is the same residential property bearing Municipal Registration No. 6-3-1215, Mukthashram situate at Begumpet, Hyderabad referred to earlier. In the said suit, the respondent filed I.A. No. 2406 of 1995 under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction restraining the defendants 3 to 8 from interfering with his peaceful possession of the suit schedule property. The learned III Additional Judge, on the said application, passed an order on 9-11-1995 directing the defendants 3 to 8 to maintain status quo in respect of the suit schedule property. When the proceedings were posted before the Advocate-Commissioner on 18-11-1995, on behalf of the respondent, a letter was filed before the Commissioner informing about the ex parte interim order passed by the learned III Additional Judge in I.A. No. 2406 of 1995 in O.S. No. 454 of 1995. Therefore, the Commissioner adjourned the proceedings to 2-12-1995. Again, on behalf of the respondent a letter dated 1-12-1995 was filed informing the Commissioner about the status quo order passed in I.A. No. 2406 of 1995 and also further informing that the respondent has filed I.A. No. 2495 of 1995 in O.S. No. 1609 of 1983, in which he has sought a direction to the Advocate-Commissioner not to execute the warrant in respect of the dwelling house bearing Municipal Registration No. 6-3-1215. In the letter the respondent also requested the Commissioner not to execute the warrant in respect of the dwelling house. The Commissioner adjourned the proceedings to 16-12-1995. Again, on 16-12-1995 another letter was filed on behalf of the respondent requesting the Commissioner not to execute the warrant to the extent of dwelling house is concerned and seeking adjournment.