JUDGMENT
D.Y. Chandrachud, J.
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, . 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, , on the judgment of a Full Bench of the Madras High Court in Vidya Charan Shukla v. Tamil Nadu Olympic Association, , and upon the judgment of a learned Single Judge of this Court in Ram Gopal Waghdhare v. Sudhir Ram Waghdhare & others, 1999 Vol. 101(1) Bom.L.R. 15.
4. The only defence which has been urged on behalf of the respondent is that there is nothing to show that the order of this Court dated 11-2-1998 had been served on his client. The learned Counsel states that the respondent admits the fact that the memo of appeal and the civil application were served on the respondent and that he had entered appearance through an Advocate on 18-8-1999. However, it was sought to be urged that in the absence of specific proof to the effect that even the order dated 11-2-1998 had been served, the contempt proceedings must fail. However, it was urged that the respondent tenders an unconditional apology before the Court and is willing to furnish security or to deposit the entire proceeds of the sale transactions which had been executed by the respondent after the order of this Court dated 11-2-1998. The respondent is present before this Court. In regard to the statement which has been made in paragraph 5 of the contempt petition to the effect that the respondent has executed 25 sale-deeds, the learned Counsel states before the Court, on instructions, that the respondent has not executed 25 sale-deeds as alleged but ‘only about six or seven’ sale-deeds. It would be necessary to note that the allegation which has been made in paragraph 5 for the contempt petition to the effect that the respondent has executed “almost about 25 sale-deeds” is not specifically denied in the corresponding paragraph, paragraph 13, of the reply to the contempt petition.
5. Having heard the learned Counsel for the parties, I am of the view that the respondent has been guilty of a wilful and deliberate breach of the order passed by this Court on 11-2-1998 and is guilty of a Contempt of Court. The entire sequence of events would demonstrate, in my view, that the respondent was deliberately evading the service of the notice of this Court. An effort was made initially on 25-3-1998, and thereafter on 30-4-1998 and on 24-8-1998 to serve the respondent. Eventually the respondent came to be served on 2-10-1998 by a pasting of the notice by the bailiff on the residential premises. A letter despatched by registered post was addressed to the respondent but even that was not claimed and came to be returned to the registry of this Court. Ultimately, an order for service under Order V, Rule 20 of the Code of Civil Procedure was passed by this Court on the civil application moved by the petitioner and after the order of this Court dated 6-7-1999 the respondent was served once again by the bailiff on 3-8-1999. The respondent thereafter entered appearance on 16-8-1999 when the Vakalatnama of his Advocate was filed in the registry of this Court.
6. There is absolutely no substance in the plea that the respondent was aware only of the contents of the memo of appeal and the civil application therein but not of the order of this Court. Whatever may be the position prior to 16-8-1999, there can be no doubt about the fact that once the respondent had entered appearance before this Court on the aforesaid date through an Advocate, the respondent must be imputed knowledge of the proceedings before this Court and of the order which was passed on 11-2-1998. In (supra) Mr. Justice S.K. Das delivering the judgment of the Bench of three learned Judges of the Supreme Court, held that in the matter of a prohibitory order it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had the notice of the order aliunde. The Supreme Court after referring to the earlier decisions on the point held that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt. The entire sequence of events of this case has been referred to in some detail in the earlier part of this order. The narration of facts, in my view, would leave no manner of doubt that the respondent was duly served with notice and was aware of the order passed by this Court. The respondent initially evaded the service of the notice and ultimately when the notice was served on him in pursuance of the order permitting substituted service under Order V, Rule 20 of the Code of Civil Procedure, the respondent duly entered appearance through an Advocate.
7. In fairness, it must be stated that it has not been the contention of the respondent that the existence of the remedy under Order XXXIX, Rule 2-A would oust the jurisdiction of this Court to punish for contempt. No such argument could have, in any case, been made having regard to the well settled position of law. In (supra) the Supreme Court held that the Supreme Court and the High Courts being courts of record, under Articles 129 and 215 of the Constitution of India, these courts are vested with the constitutional power to punish for contempt and that power cannot be abridged or abrogated by any legislation. The same view has been taken in a judgment of a Full Bench of the Madras High Court in (supra) and by a learned Single Judge of this Court in 1999 Vol. 101(1) Bom.L.R. 15 (supra). Finally it would also be appropriate to advert to the provisions of section 22 of the Contempt of Courts Act, 1971 which lay down that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts.
8. Having regard to the facts and circumstances of the present case, I am of the view that this is a case where there has been a gross Contempt of Court on the part of the respondent. The respondent is guilty of a wilful disobedience and breach of the order dated 11-2-1998 passed by the learned Single Judge of this Court.
9. I have heard the learned Counsel for the parties on the question of sentence. I am of the view that in the present case, the ends of justice require that the respondent be sentenced to undergo detention in civil prison for a period of two months and to a fine of Rs. 2,000/-.
10. The learned Counsel for the respondent has stated that the respondent is willing to purge the contempt and is ready and willing to deposit before the trial Court the entire consideration which has been received out of the sale-deeds which were executed by the respondent. I am of the view that it would be appropriate, in the interests of justice, to grant one final opportunity to the respondent to purge the contempt. In order to enable the respondent to do so, the order of sentence should be suspended for an appropriate period so as to furnish that opportunity to the respondent. Accordingly, there shall be a direction to the effect that the respondent shall, within one week from today, file an affidavit before the trial Court in Special Civil Suit No. 1385 of 1995, containing a full disclosure of the sale transactions which have been entered into by the respondent in respect of the property which forms the subject matter of the order of injunction that was passed by this Court on 11-2-1998 with full particulars of the dates on which the transactions were entered into, the parties with whom the transactions were entered into and the consideration that has been received in respect thereof. The respondent shall also file before the trial Court, within the aforesaid period, authenticated copies of the sale documents and all other documents which have been executed. The respondent shall also within a period of four weeks from today deposit before the trial Court the full consideration that has been received by him in respect of the aforesaid sale transactions. The learned trial Judge is directed to submit a report to this Court after verifying that compliance has been made by the respondent. The contempt petition shall be listed before this Court for verifying compliance on 19-8-2002. Until 23-8-2002, the sentence which has been imposed on the respondent shall remain suspended.