NEENA BANSAL KRISHNA J.

I.A. 8646/2021 (U/O XXXIX Rule 2A r/w Section 151 of CPC, 1908)

1. An application under Order XXXIX Rule 2A read with Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as the ‘CPC’) has been filed by Plaintiff seeking initiation of contempt proceedings against Defendant No. 2 Sh. Lokesh and Defendant No. 3 Master Mayank through his mother Smt. Kamla and for the attachment of their Suit Property to safeguard the interest and rights of the Plaintiff against the defendants for violation of the “Status Quo” Order dated 05.08.2013.

2. The facts in brief, are that defendant Smt. Murti Devi was married to Sh. Bhagat Singh and from their wedlock, two children namely, Sh. Vijay Pal, son and Smt. Neelam, daughter were born. On the demise of Sh. Bhagat Singh in the year 1980, his wife Smt. Murti Devi remarried Sh. Gajraj, the younger brother of Sh. Bhagat Singh and from their wedlock one daughter, Ms. Jyoti (who is impleaded as Defendant no.1 on the demise of Smt. Murti Devi) was born. Sh. Gajraj also died in the year 1993.

3. Sh. Gajraj (second husband of Smt. Murti Devi) was the owner of 1/4th share of the title land admeasuring 62 Bighas and 11 Biswas comprised in Khasra Nos. 47// 14/2 (2-9), 15 (4-16), 16 (4-16), 17/1 (2-6), 24/2 (1-14), 25 (4-16), 48/11 (4-16), 20 (4-16), 21 (4-16), 22 (4-16), 23/2 (2-8), 24/2 (2-9), 51/11/ 1 min North (1-6), 4 7/14/1 (2-7), 17/2 (l-19), 24/1 (3-2), 48/23/1 (2-8), 24/1 (2-1), 52/5/1 (1-17), 249/1 min (0-8), 250/1 (0-10), 421 (0-12) and 422 (1-3) situated in the revenue estate of village Chhawla, Tehsil Najafgarh (Palam), New Delhi and 1/8th share in land measuring 40 bighas and 10 biswas bearing Khasra Nos. 9//25 (4-16), 17/18/2 (3-3), 19 (4-16), 20 (4-16), 24 (4-16), 18//5 (4-16), 6 (4-8), 14/2 (2-7), 15 (4-16), 20/ 1511 (1-16) situated in the revenue estate of Village Kutubpur, Tehsil Najafgarh, New Delhi (hereinafter referred to as the 'Suit Property').

4. On 22.11.2010, Smt. Murti Devi entered into an Agreement to Sell with the plaintiff in respect of the aforesaid land for a total consideration of Rs. 5,02,00,000/-. Smt. Jyoti, daughter of defendant was a witness to the Agreement to Sell. MoU cum Receipt was executed on the same date, and the plaintiff paid Rs. 3,00,000/- in cash and Rs. 2,00,000/- vide Cheque no. 661493 dated 22.11.2010 as an advance amount. Thereafter, the plaintiff from time to time continued to make payments and in all, a sum of Rs. 2.75 Crores was paid as part of the sale consideration. The defendant had undertaken to obtain the requisite “No Objection Certificate” from the competent authority at her cost and expense and thereafter to execute the Sale Deed, but on one pretext or the other, she failed to execute the Sale Deed. Hence, he filed the present suit for specific performance dated 20.12.2010 in respect of the suit property. A permanent injunction was also sought for restraining defendants, their attorneys and representatives from creating third party interest or to part with the possession of the suit property.

5. The defendant Smt. Murti Devi (since deceased) appeared on receiving the summons of the suit. An ad interim Order was passed on 05.08.2013 in I.A.9251/2013 under Order XXXIX Rule 1 and 2 read with Section 151 CPC, the relevant part of which reads as under:

“Learned counsel for the defendant enters appearance. He states that the defendant denies the acceptance of the money. However, learned counsel for the defendant states that he has no objection if status quo with regard to possession and title of the share of the defendant is directed. The defendant is therefore restrained from creating any third party interest or parting with possession of suit property. Application is disposed of. Order dasti.”

6. During the pendency of the suit, Smt. Murti Devi died and her daughter, Ms. Jyoti from her marriage with Mr. Gajraj was impleaded as her legal heir. Subsequently, Mr. Lokesh and Master Mayank, sons of Sh. Vijay Pal (who was the son of Smt. Murti Devi from her first marriage with Sh. Bhagat Singh) were impleaded as defendant nos. 2 and 3 vide Order dated 29.08.2016 on the basis of a Will dated 25.06.2013 allegedly executed in their favour by Late Smt. Murti Devi. The Will was challenged by defendant no. 1, Smt. Jyoti by way of a separate suit, but the same was rejected with the directions that any challenge to the Will may be agitated in the present suit itself.

7. The plaintiff has alleged in the present application that it has come to his knowledge that defendant nos. 2 and 3 in connivance with their father Shri. Vijay Pal, are indulging in illegal and contemptuous act of selling and disposing of the suit properties in parts to different person and thereby creating third party rights. The defendant nos. 2 and 3 are claimed to be in complete disobedience of the Order of injunction dated 05.08.2013. It is further claimed that the plaintiff on enquiry from the local property dealer, has come to know that Mr. Vijay Pal claiming himself to be an absolute and sole owner, has executed a GPA along with two separate Agreements to Sell dated 22.11.2019 and 25.01.2020 of 300 sq. yards and 250 sq. yards respectively in respect of the part of the suit property i.e. Khasra No. 18/6 situated in the Revenue Estate of Village Kutubpur, in favour of SRSK Real Estate Pvt. Ltd.

8. The plaintiff has further asserted that defendant no. 2 and 3 are fully aware of the malicious acts of their father, Mr. Vijay Pal and are supporting such acts of creating third party rights in the suit property in contravention and disobedience of the Order dated 05.08.2013 with the sole intent to deprive the plaintiff of its legal right. A prayer is therefore made that contempt proceedings be initiated against defendant nos. 2 and 3 and the suit property be attached so as to safeguard the interest and rights of the plaintiff.

9. I.A. 9574/2021, read with 151 of CPC was filed on behalf of the defendant under Order I Rule 10 of CPC for impleadment of Mr. Vijay Pal in the application under Order XXXIX Rule 2A of CPC. However, Mr. Vijay Pal died on 19.04.2022 and the application was accordingly permitted to be withdrawn and was disposed of vide Order dated 09.09.2022.

10. Shri. Vijay Pal during his lifetime had filed the reply to the application under Order I Rule 10 of CPC wherein all the averments made against him were denied in toto.

11. No reply to the contempt application has been filed on behalf of the defendant nos. 2 and 3.

12. Submissions heard.

13. The requisite requirements for invoking Order XXXIX Rule 2A of CPC are that there must be a breach of any of the terms on which the injunction was granted and that such breach/ disobedience is wilful.

14. In a recent judgement, the Supreme Court in U.C. Surendranath v. Mambally's Bakery, (2019) 20 SCC 666 has laid down with respect to Order XXXIX Rule 2A of CPC, that the disobedience must be “wilful disobedience” because the liability under Order XXXIX Rule 2A of CPC is criminal in nature. The judgment in U.C. Surendranath (Supra) was referred to by the Supreme Court in Amazon.Com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209 [LQ/SC/2021/2908 ;] ">(2022) 1 SCC 209 [LQ/SC/2021/2908 ;] [LQ/SC/2021/2908 ;] wherein while discussing the scope of Order XXXIX Rule 2A of CPC, the Supreme Court observed that there is a vast difference in the enforcement of Orders passed under Order XXXIX Rule 1 and 2 of CPC and Orders made under Contempt of Courts Act. The Orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both. On the other hand, Order XXXIX Rule 2A of CPC is primarily intended to enforce Orders passed under Order XXXIX Rules 1 and 2 of CPC, and for that purpose, civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature. The object of Order XXXIX, Rule 2A of CPC is primarily to enforce orders of interim injunction. The Supreme Court further observed that though it may be correct to state that the powers of the court under Order XXXIX Rule 2A of CPC are punitive in nature and akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971, however, this does not ipso facto mean that the requirement of Order XXXIX Rule 2A of CPC is not “mere disobedience” but “wilful disobedience”.

15. Based on the above discussion, it is relevant to analyze the first requirement of Order XXXIX Rule 2A of CPC i.e. whether there is any disobedience of the Injunction Order by the two respondents in light of the facts disclosed in the present application.

16. The terms of the injunction order dated 5th August 2013 was that Defendant No.1 Smt. Murti Devi (who was the only defendant and defendant No.1, 2 & 3 had been impleaded subsequently) shall not create third-party interest or part with the possession of the suit property. The meaning of the expression “creation of an interest” must be determined within the contours of the Transfer of Property Act, 1882 (hereinafter referred to as “the TPA”). Section 8 of the TPA describes as to when a transfer operates. Section 8 states that the transfer of property passes forthwith to the transferee all the interest which the transferor is capable of passing in the property, and in the legal incidents thereof. In case the property is a land, the legal incidents include easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the Earth. The Supreme Court in Rikhu Dev v. Som Dass, (1976) 1 SCC 103 [LQ/SC/1975/310] has expounded the meaning of the word “interest”, though in the context of Order XXII Rule 10 of CPC, to mean an interest in the property which is the subject-matter of the suit and such interest is the interest of the person who was a party to the suit.

17. The only averments made by the plaintiff is that the two Agreements to Sell in respect of 300 sq. yds and 200 sq. yds in Khasra No. 18/6 situated in the revenue estate of Village Kutubpur forming part of suit property have been entered into by Mr. Vijay Pal with SRSK Real Estate Private Limited.

18. First and foremost, Mr. Vijay Pal was not a party to the present suit nor was he impleaded as a party to the application under Order XXXIX Rule 2A of CPC. The object of Order XXXIX, Rule 2A of CPC, as stated above, is primarily to enforce orders of interim injunction. A person who is not a party to the Suit cannot be held to be bound by any Orders made herein. It may be observed that according to the plaintiff, Mr. Vijay Pal has no right, title or interest in the suit property and therefore, he cannot transfer a better title in favour of prospective buyers. If Mr. Vijay Pal has created an interest by way of an Agreement to Sell in favour of SRSK Real Estate Private Limited in respect of land of which he was allegedly not the owner, the remedy of the plaintiff lies against him by way of a separate suit. Furthermore, merely because Shri Vijay Pal happens to be the father of defendant no. 2 & 3, it cannot ipso facto lead to the inference that any act of the father will be attributable to the two sons.

19. The only averments made against defendant nos. 2 and 3 are that they are in active connivance with Mr. Vijay Pal. The copy of the Agreement has been placed on record which shows that it is only Mr. Vijay Pal who has entered into the Agreement to Sell. There is neither any averment nor any specific details spelled out from where it can be inferred that defendant nos. 2 and 3 are in connivance with their father Mr. Vijay Pal as is asserted and claimed by the plaintiff. The plaintiff has not been able to show any disobedience of the status quo Order made in the present case.

20. There is no merit in the contempt application which is hereby dismissed.