FAO(OS)/386/2014 of SMT. PUSHPA DEVI Vs SHRI YASHASHWI AGGARWAL & ORS

IN THE HIGH COURTOF DELHIAT NEW DELHI

Judsment reserved on: September 30. 2016Judsment delivered on: March 08. 2017

FAO(OS) 386/2014 & CM Nos. 14143/2014 & 14145/2014

SMT. PUSHPA DEVIAppellantThrough:Mr. Deepak Sahni, Adv.

versus

SHRI YASHASHWIAGGARWAL& ORS

.... Respondents

Through:Mr. Dayan Krishnan, Sr. Adv. withMr.Jeevesh Nagrath, Ms.Monica Manchanda,Mr.ChetanGautam& Ms.MeghnaBal, Advs.forR-l&2.

Mr. Manish Vashist, Adv. for R-3 & 4Mr. Arvind Nigam, Sr. Adv. with Mr.K. Datta,Mr.Manish Srivastava,Advs. for R-9.Mr.Lalit Gupta with Mr.Gaurav Lavaria, Advs.for R-11 to 17.

CORAM:

HON'BLE MS JUSTICE INDIRA BANERJEEHON'BLE MR JUSTICE V. KAMESWAR RAO

JUDGMENT

V.KAMESWARRAO. J.

For orders, see FAO(OS)385/2014.

•1, CoO

V. KAMESWAR RAO, J

MARCH 08, 2017/ak

INDIRA BANERJEE, J

IN THE HIGH COURT OF DELHI AT NEW DELHI

JudgmentreservedJudgmentdeliverednn: March OR^ 7m7

7niA

+FAO(OS)385/2014&CM No. 14139/2014M/S CARAVANCOMMERCIALCOMPANYLTDM/S CARAVANCOMMERCIALCOMPANYLTD

Appellant

Through:Mr. ArvindNigam,Sr. Adv. withMr.K.Datta&Mr.ManishSrivastava,Advs.

versus

YASHASHWIAGGARWAL8l ORS

Respondents

Through:

Mr. DayanKrishnan,Sr. Adv. withMr.JeeveshNagrath,Ms.MonicaManchanda,Mr.ChetanGautam&Ms.MeghnaBal, Advs. for R-1 &2.Mr. ManishVashist,Adv. for R-3 &4Mr.DeepakSahni,Adv. for R-11.Mr.LalitGuptawithMr.GauravLavariaAdvs. for R-12 to 18.

FAO(OS)386/2014&CM Nos. 14143/2014&14145/2014SMT. PUSHPA DEVI

Appellant

Through:Mr.DeepakSahni,Adv.

versus

SHRI YASHASHWIAGGARWAL&ORS

.... Respondents

FAOfOS)385/2014connectedrnoner

Page I of61

Through:

Mr. Dayan Krishnan, Sr. Adv. withMr.JeeveshNagrath,Ms.MonicaManchanda,Mr.ChetanGautam& Ms.MeghnaBal, Advs.forR-1 &2.Mr. Manish Vashist, Adv. for R-3 & 4Mr. ArvindNigam,Sr. Adv. with Mr.K. Datta,Mr.Manish Srivastava, Advs. for R-9.Mr.LalitGuptawith Mr.GauravLavaria,Advs.for R-11 to 17.

CORAM:HON'BLE MS JUSTICE INDIRA BANERJEEHON'BLE MR JUSTICE V. KAMESWAR RAO

JUDGMENT

V. KAMESWAR RAO.J

CM No. 14145/2014in FAO(OS) 386/2014(filed by appellant under Section 151CPC seeking permission for filing lengthy list of dates and events^

Forthe reasonsstatedin the application,the same is allowedand disposedof.

FAO(OS) 385/2014 & FAOfOS) 386/2014

1.These two appeals impugn order dated August 4, 2014 passed by the learnedSingle Judge in suit bearing CS (OS) No. 1561/1994whereby the learned SingleJudge has decided an applicationunder Order 39 Rule 2A read with Section 151CPC preferredby the respondents1 and 2 herein, whereinit has been held that theappellants herein have disobeyed the status quo order dated May 07, 1997subsequentlymodifiedby ordersdated September16, 2005 and November24, 2009and as such, guilty of committingcontemptof the Court and further directedM/s

CaravanCommercialCo. Ltd. (the appellantin FAO (OS) no. 385/2014) (Caravanmshort) to deliverthe vacant possessionof entire ground floor as receivedby itfrom Smt. PushpaDevi (appellantin FAO (OS) No. 386/2014)withineightweeks.Similarly,Smt. PushpaDevi has been directedto obtainphysicalpossessionoftheentire ground floor delivered by her to M/s Caravan (appellant in FAO(OS)385/2014)within eight weeks. The learned Single Judge has also observed thatawardingofpunishmentwill be dependantupon the complianceofthe order. Wemay state here that, the periodofeight weeks was extendedinitiallyon September23, 2014 in the appeals. Thereafter,on November12, 2014, in both the appeals,theCourt directedparties to maintainstatus quo till the next date of hearing and onJanuary 25, 2016, the Court directedthe continuanceof interimorders till fiirtherorders.

FACTS(as notedin FAO(OS)385/2014)!-

2.Thereare threeco-ownersnamely(i) Late Smt. ShantiDevi (respondents12 to18 m FAO (OS) No. 385/2014 are her legal heirs), respondents 11 to 17 inFAO(OS)No. 386/2014(ii) Late Smt. BimlaDevi (respondents3to 6in FAO(OS)No. 385/2014and FAO(OS)386/2014are her legal heirsand (iii) Smt. PushpaDevi(the appellantin FAO (OS) 386/2014)in respectofsuitpropertyNo. 42-44, SunderNagar,New Delhi ('suitproperty'in short). Aperpetualleasein respectofthe suitpropertywas executedin theirfavour in the year 1954. Afresh perpetuallease wasFAO(OS)385/2014connectedmatterj

executed in the year 1992 on the demise of Smt. Shanti Devi to include her heirs(respondents15 to 18) and Late Sh. MahinderKumar Gupta, S/o Late Smt. ShantiDevi,Late Smt. BimlaDevi and Smt. PushpaDevi. The three co-ownersare said tobe the sisters-in-law. It is the case of the appellantCaravanthat between 1954 to1977 the suit property was entirelytenanted to the Embassy of Poland and from1977 to 1994, it was entirelytenantedto the DPR of Korea Embassy. It is statedthat the suitwas never of the three co-owners propertyphysicallyoccupiedby anyor their families till 1994. The built-up constructionconsists of an independentground floor and an independentfirst floor and terrace. Two independentandseparatedrivewaysand entrancesaccessthesetwo built-upportionshavingseparatekitchenand placeofworship. Thereare two independentservantquartersatthe endof the two driveways. There is no internal staircase between the two units. It is thecase of the appellant Caravan that on November 15, 1991 all three co-ownersenteredinto an Agreementto Sell with Caravanagreeingto conveyand transfertheentire suit property to Caravan for total consideration of Rs.1.90 crores.OnNovember 16, 1992, anotherRegisteredAgreementto Sell was executedby all thethree co-ownersin favourofCaravan. Underthe aforesaidtwo Agreementsto Sell,a total of Rs.66 lakhs was to the three co-owners in shares.The paid equalof the Income Taxand Urban Landwaspermission Authority Ceiling Authorityobtained.

3.It is the case ofthe Caravanthat it wasthat the sale transactionwas to agreedbe completedon or before October31, 1993. It is representedthat in September,1993, Caravanbecame aware of suit being CS(OS) No. 1578/1992filed by oneSh. ArunBatraseekingspecificperformanceofan allegedoral Agreementto Sell inrespectofthe suitproperty. It is statedthatCaravanalso learntthatby an ad-interimex-parteorder dated April 23, 1992, Late Smt. Simla Devi and the legal heirs ofLate Smt. ShantiDevi had been restrainedfrom sellingtheirrespectivesharesin thesuitproperty. It is statedby Caravanthatthe co-ownerswere duly awareofthe saidad-interim ex-parte order but did not inform the appellant Caravan and in factreceiveda furtherpartof the sale considerationin November1992. It is the standofCaravan that under these circumstances,it had filed suit being CS (OS) No.2443/1993 for specific performance, which is pending adjudicationbefore thisCourt. By an order dated September06, 1999 both the aforesaidsuits have beenconsolidatedfor the purpose ofrecordingevidence,which is going on before thelearnedLocal Commissioner. It is statedthat by detailedjudgmentand orderdatedJuly 02, 2010 the ex-partead-interimorderofinjunctionpassedin Sh. Arun Batra'ssuit was vacatedby the learnedSingleJudge, whichhad been upheldin appeal andbeforethe SupremeCourt. It is the case ofthe Caravan,in an effortto buy peaceinlitigation pending for more than 20 years, it purchased 2/3''' share in the suitpropertyby executingRegisteredAgreementsto Sell and other related documents

FAO(OS)385/2014&connectedmatter

with the legal heirs of Late Smt. Shanti Devi on May 25, 2011 and Srat. PushpaDevi on May 30, 2011. It is stated by Caravan that it paid additional considerationof Rs.20 Crores to the aforesaid parties once again in an effort to buy peace and toput to an end to the protracted litigation. It is the case of the appellant Caravan thatpursuant to this Smt. Pushpa Devi who was in sole and exclusive occupation of theentire ground floor of the suit property since 1994 handed over possession of thesame to Caravan.It is stated that the entire first floor and terrace are in the peacefuloccupationof the legal heirs of Late Smt. Simla Devi since 1994 and continuesundisturbed. It is stated by Caravan that this fact of handing over of the possessionwas noted by the learnedSingleJudge of this Courtin its orderdatedJune 02, 2011when it was broughtto the noticeof the Courtby counselfor Smt. PushpaDevi.

4.That Caravan has given reference to certain other litigations concerning thesuit property. The same are as under:-

(a)Suit for partition[ CS (OS) No. 690/2006]filed by the legal heirsof Late Smt.Shanti Devi who were never in occupation of the suit property (respondents 12 to18) seeking partition and possession of the suit property. The aforesaid suit waswithdrawn pursuant to the further Agreements to Sell executed by and betweenCaravan & respondents 12 to 18 on May 30, 2011. It is stated that no other partysoughttranspositionas plaintiffin the suitto seekto continuethe saidpartitionsuit.(b)On July 04, 2011 Sh. Rakesh Aggarwal (Son of Late Smt. Bimla Devi andFAO(OS)385/2014&connectedmatterPage6 of61

respondent No.3 herein) filed suit No. 1587/2011 seeking permanent andmandatory injunction against Caravan from entering the suit premises or fromorthe natureofthe suitin manner. Caravanwas thechangingaltering propertyanysole defendant in the said suit.The suit was predicatedon Section 44 of theTransferof PropertyAct. The ad-interimreliefgrantedon July 04, 2011 was thatthe ground floor of the suit property in possession of Caravan would not bealienated and that the renovation being carried on would be at Caravan's risk andcost. It is represented by Caravan that repeated applications were filed in the saidsuit for preventingrenovationon the ground floor; seekingrestraintorder againstCaravanfrom using and occupyingthe ground floor; seekingrestraintorderagainstCaravanfromthe suit Furtherno interimreliefswerein entering premises. grantedfavour of the respondentNo.3 herein who is the plainfiffin the said suit; Caravanhas carriedout the renovationand the groundfloor is inits occupation.(c)CS (OS) 1561/1994titled MasterYash &Anr v. Rakesh Kumar Aggarwal&>Ors in which the order, ofwhich contemptis allegedwas passed, is suit filed bythe grand sons of late Smt. BimlaDevi for partitionallegingthat 1/3'"'^share of LateSmt. Bimla Devi was ancestralpropertyand claimingtheir respective1/27''" shareeach in her 1/3'^'^share. Late Smt. BimlaDevi has filedawrittenstatementopposingthe avermentsin the plaintand assertingthe propertyto be hersalone. Itis statedbyCaravan,that at the time of filing of the Suit, no applicationfor interimorders wasfiled. Caravan was not impleadedas party. On May 6, 1997, an applicationwasfiled for interimreliefsapprehendingthat they would be dispossessedfrom the firstfloor. However, status quo order was granted on May 7, 1997 in respect of theentire suit property. On the demise of Smt. Bimla Devi on January 15, 2004 anapplicationwas filed seekingsubstitutionof Smt. BimlaDevi'slegal heirs viz. hersons and daughters in her place. It is stated by Caravan that an amendmentapplicationbeing IA No. 3710/2005was filed seeking leave to amend the earlierapplicationfor substitutionon the groundthat Will of Late Smt. BimlaDevi hadbeen discoveredunder which certainadditionallegal heirs ofthe deceasednamelyrespondents1and 2and Sh. AshishAggarwal(sonofrespondentNo.3)were soughtto besince were the heirs who were entitledto her estate. impleadedthey only legalAccordingly,testamentarycapacityofLate Smt. BimlaDevi in respectof1/3'''sharein the suitwas admitted. It is statedthat the said amendment propertyapplicationwas, thereafterwithdrawnon September16, 2005 with liberty but no applicationwas filed subsequently. It is stated, that in the connectedsuit (1587/2011)it hasbeen recorded in the order dated January 7, 2013 that the alleged will, is not inpossessionof the legal heirs of Late Smt. BimlaDevi. It is also statedthat lA No.4108/1997was filed by respondentNo.17 (one ofthe legal heirs oflate Smt. ShantiDevi who was never inof ofthe suitand the status possessionany part property)quo order dated May 7, 1997 was modifiedon September16, 2005 to permit the

saidto dealwithhis undividedsharein the suit Status wasrespondentproperty.quodirectedto be maintainedin respectofpossessionofpartiesmeaningtherebythattheNo. who wasneverinofthe suit respondent17, admittedly possession propertywould not take any steps to dispossessthe heirs of late Smt. Bimla Devi from thefirst floor and Smt. PushpaDevi from the ground floor of the suit propertywhiledealingwith his undividedshare. It is statedthat similarapplicationbeinglA No.3084/2006was filed12 to 16 and 18 whichwas dismissed order by respondentsbydated August 22, 2007. In 2009, Smt. PushpaDevi filed an applicationbeing lANo. 12948/2008inter-aliaseeking discharge,vacation,modificationof the statusquo order dated May 07, 1997 as modified on September 16, 2005 as whole;seeking dischargeand vacationof the status quo orders dated May 07, 1997 andSeptember 16, 2005 insofaras it relates to herundividedshare. Vide orderdatedNovember24, 2009the learnedSingleJudgepassedthe followingorder:-

" LA. No.l2948/20nR

This applicationhas been made under Order39 Rule 4 CPC onbehalfof defendantNo.8 with that the court should prayer the status order dated 7th 1997 which wasmodify quo May,earlier modified on 16th September, 2005. It is submitted bylearned counselfor defendant No.8 that defendant No.8 wasentitledto undividedl/3rdshare in the property. This court videorderdated16th September,2005 hadgiven libertyto defendantNo.12, who was similarlyplacedthat defendantNo.12 shall beentitledto exercisehis rightsanddeal with his undividedshareinhisproperty.He statesthatdefendantNo.8is also entitledfor thesameLearnedcounselfor thestatesthatasfar asliberty.plaintiffsdefendantNo.8is concerned,her l/3rdsharein thepropertyis not

Page 9„n of61

disputedandcounselfor theplaintiffshas no objectionin case, thesimilarorderas in respectofdefendantNo.12 has beenpassedisalso passed in favour of defendant No.8. In view of thissubmission, the applicationfor modifying the status quo orderdated 16th September, 2005 is allowedand it is observedthatdefendantNo.8shall be entitledto exerciseher rights and dealwith her undividedl/3rd share in theproperty. The applicationstands disposedof

C.S. (OS) No. 1.561/IQQ4

Theplaintiffshavefiledthissuitclaimingl/3rdundividedshareinthepropertyNo.42- 44, SunderNagar, New Delhi. TheplaintiffsaregrandsonsofSmt. BimlaDevi, defendantNo.3 (deceased)anddefendant Nos.1 and 2 are father and uncle of the plaintiffsrespectively.Smt. Bimla Devi had enteredinto sale agreementalong with co-ownersofthe propertywith defendantNo.14. Theotherdefendantsare defendantsin respectofothertwo co-ownersof the property, namely, Smt. PushpaDevi and Smt. ShantiDevi(since deceased). Theyare defendantNos.8 and 9 to 13. There isno disputein respectofundivided1/3rdshare, one ofLRsofSmt.ShantiDevi or undividedshareofSmt. PushpaDevi. The disputeis only in respectofl/3rdundividedshareoflateSmt. BimlaDevi.I, therefore,considerthatall the defendants,who inheritpropertyfrom Smt. Pushpa Devi or Smt. Shanti Devi, being performadefendants,are at libertyto deal with their respectiveundividedshare of the property. The court had passed similar order inrespectofdefendantNo.12 earlierand defendantNo.8 today. Iconsider that the other defendants similarlyplaced cannot betreated differently and the earlier order of dismissing theapplication made by the defendants is, therefore, recalled.However, since thepropertyis not dividedsofar, the defendantsshall remain entitledto undividedshare and they may deal onlywith undivided share. "

5.It is the standofthe appellantCaravanthatafterfailingto secureany ordersin

CS (OS) No. 1587/2011 and afteralapse of about 18 months from the date when

Caravan took physical possession of the ground floor of the suit property inDecember 2012, two applicationswere filed first being lA 22681/2012seekingmterimreliefstheCaravanto handoverofthedirecting appellantpossession groundfloor ofthe suitto theno noticehas been issuedon property. According appellant,the said application;and the secondbeinglA No. 22682/2012underOrder39 Rule2A of CPC that Smt. Devi and Caravan were inof the stating Pushpa contemptorders dated September16, 2005 and November24, 2009, whereinthe impugnedorder was passed. The facts noted in the appeal filed by Smt. Pushpa DeviFAO(OS)386/2014)]are identicalto the facts noted above, in the appeal filed byCaravanand the same are not repeatedfor the sake ofbrevity. However,this Courtwould like to note the stand of the appellant Smt. Pushpa Devi in her appeal[FAO(OS) 386/2014)],wherein she has submittedthat the order dated April 30,1992 in CS(OS) 1578/1992filed by Arun Batrawas not againsther. It is also hercase that in the suitbeingCS(OS)No. 1561/1994by the plaintiffs,grandsonsoflateSmt. BimlaDevi, is only with respectto 1/3 share ofLate Smt. BimlaDevi and theotherdefendantswere asdefendants.It is her case that impleadedmerely performathe applicationfor discharging/vacating/modifying/statusquo order, being lA No.12948/2008 was allowed without any restrictions. In other words, she waspermittedto exerciseher rights and deal with her 1/3 share in the property. Fromthe legal opinion sought by her, it was confirmedthat she can deal with her share

and part with possession.

SUBMISSTONS:-

6.Mr. Arvind Nigam, learned Senior Counsel appearing for Caravan wouldsubmitthat by orderdated November24, 2009 the aforesaidapplication(beinglANo. 12948/2008) and by necessary implication, its prayers were allowed andconsequently,Smt. Pushpa Devi was fully entitled to deal with and part withpossessionof the ground floor of the suit property. The said order, both in theapplicationand inthe suit,did not placeany bar orfetterson the mode or mannerofdealing with the share of Smt. PushpaDevi or the heirs of late Smt. Shanti Devi,sincetheywererecognizedand heldto be proformaparties. He wouldrely upon thejudgmentofthis Courtin BanneSingh v. StateofRajasthan,CriminalAppealNo.1254/2008decidedon January 15, 2014 to contendthat the word 'to deaV impliesthat the offenderhas certainconcernwith the propertyeither by keepingit in hispossession,or partingwiththe ownership,or possessionofthe propertythroughanyof the modes of transferof property. Accordingto him, the order dated May 07,1997 was modified by order dated September 16, 2005 in respect of defendantNo.l2-SurinderKumarNo.17 who was (respondent herein), party, admittedlynever inof the suit The reliefof modificationof status possession property. quoorder, sought by the brothers of defendant No.l2-SurinderKumar (respondentNo.17 herein) was denied. He lay stress on the fact that Smt. Pushpa Devi (theFAO(OS) 385/2014 & connected matter

appellantin FAO (OS) No. 386/2014)sought full reliefs in her applicationfiledunder Order 39 Rule 4 CPC and her said applicationwas allowed as whole videorderdatedNovember24, 2009 i.e in termsofall prayerstherein.

7.Accordingto Mr. Nigam,the contentionofthe respondents1&2(plaintiffsinthe suit) that other reliefs were given up or/and abandonedis wholly speculative.The order dated November24, 2009 does not record any abandonmentand/oranygiving up of any prayers.He states that the said order was not passed onconcession. Accordingto him, it is settledprincipleof law that order has to beread as it is without any addition or subtraction.He would also contest thesubmission made on behalf of respondents 1 and 2 that the order dated November24, 2009 is to be interpretedon the basis of order dated September 16, 2005 aserroneousfor the reasonsthat operativepart of the order dated November24, 2009places no fetters on Smt. PushpaDevi (defendantNo.8 in the suit and appellantinFAO (OS) No. 386/2014) regarding transfer of possession and order datedSeptember 16, 2005 stood subsumed in the order dated November24, 2009 andcannotbe interpretedto controlthe scope or width ofthe orderdatedNovember24,2009 in any mannerwhatsoever. He statesthat readingof orderdated September16, 2005 must also be made in the context of the fact that defendant No.l2-SurinderKumar (respondentNo.17 herein) was never in possessionof any part of the suitpremises. He was only one of the legal heirs of Late Smt. Shanti Devi and he alone

could not have transferredthe entireshare ofLate Smt. ShantiDevi. His brothersbeing defendants9to 11 and 13 (respondentNo.l2 to 16 and 18) were declinedreliefon August 22, 2007. Accordingto him, d,e direction in the order dated 2005 is in two status wasoftheSeptember16, parts;(a)quo quapossession partiesto the suitproperty;(b) defendantNo.l2-SurinderKumar(respondentNo.17herein)will be entitledto deal with his undividedsharebut no fetterswereputon him.

8.Mr. Nigam would also state that the order dated November24, 2009 waspassed for modificationoforderdated IVIay 7, 1997 and orderdated September16,2005 and also for recalloforderdatedAugust22, 2007. The orderhas to be read inreferenceto the prayersmade in lA No. 12948/2008. Accordingto him, vide orderdatedNovember24, 2009 the applicationofSmt. PushpaDevi was allowedwithout conditionor restriction. It is the submissionofMr. Arvindthatthe orderanyNigamdated November24, 2009 clarifiesand crystallizesthe position(i) that plaintiffsclaim IS only with regardto 1/3"* shareoftheirgrandmother-lateSmt. BimlaDevi;(2) there is no disputewith respectof 1/3'" share each of Shanti Devi Group andSmt. Pushpa Devi; (3) defendantswho inheritedfrom late Smt. Shanti Devi andSmt. Pushpa Devi are proforma defendantsand are at liberty to deal with theirrespectiveundividedshare in the suit property,which categoricallymeans that thelis remains only inter-se legal heirs of late Smt. Bimla Devi alone; (4) onlyconditionis that since the suit propertywas not divided,defendantsshall be entitled

FaO(OS)385/2014&connectedmatter

Page 14of6!

to undividedsliare for this last caveat was thatshould be only. Logic partitionrequired to be made by metes and bounds and parties cannot claim preferentialrightsmany specifiedarea. Caravanwas neverapartydefendantin CS (OS) No.1561/1994 when the orders dated May 7, 1997 and September 16, 2005 were Caravanwasas adefendant orderdatedpassed. only impleadedpartybyMay 13,2008. He would rely upon provisionsof Section21(1)ofLimitationAct, 1963 tocontendthatthe Caravanhavmgbeenaddedin the suiton May 13, 2008 deemedtohave been instituted on that date only and not on any earlier date.Hence,applicabilityofthe earlierordersdatedMay 07, 1997 or September16, 2005 cannotbe read intothe orderdatedNovember24, 2009 for purposesofcontemptas allegedby respondents 1 and 2.

9.He also states, there is an unexplaineddelay and laches of one year and sixmonths m filmg of the application,which would not be maintainableunder theContemptof Courts Act. The families of the two sons of late Smt. Simla Devithe1and 2in thenever ofincluding respondents(plaintiffs suit)occupiedany partthe ground floor of suit property. Their possessionof the first floor and terraceremainedundisturbedsince 1994. The said floor is aseparateand independentunithaving Its own entry/exitpoint, driveway, servant quarters etc.Even thoughCaravanis the rightfulownerof2/3''*ofthe suitpropertyit is at bestoccupyingonlyofthe same. He wouldstatethatSection44 ofthe TransferofPropertyAct hasFAO(OS)385/2014& connectedmatter„

no The suit was never nor is the house of an application. property dwellingundividedfamily. One branch ofthe family i.e late Smt. Shanti Devi or her legalheirs never residedin the property. In any event this plea has been raisedonly inCS(OS) 1587/2011and is not relevantin the contextoforderunderchallengein thepresentappeal and furtherCaravanhas been restrainedfrom transferringthe groundfloor of the suit property in CS(OS) 1587/2011. Caravan is ready and willingtoundertaketo be bound the decision in the said suit and division ofthe by uponproperty(ifpermissible)acceptany part ofthe suitpropertyas its share. He wouldalso urge that where more than one interpretationofan order is possible,the party bona fide on its ownof the order cannot be held ofacting interpretation guiltywillfuldisobedience.In this regard,he wouldreferto thejudgmentsofthe SupremeCourtreportedas AII^ 1961 SC221 StateofBihar v. SonabatiKumariand (2008)14see 392 SushilaRajeHolkarv. AnilKak. That apart, he also relied upon thejudgmentofthe SupremeCourt reportedas (2008) 15 SCC 529 TamilMercantileBank v. TamilnadBank to contend that willful disobedienceneeds to be provedbeyond reasonable doubt.

10. It is the submissionof Mr. Nigam, at the highest and withoutprejudice,theorder dated November 24, 2009 is capable of two inteipretations. As such.Caravan'sactionscannotbe saidto be deliberateand willfulin manner. It is not anysuch acase where the learnedSingleJudge could have held the appellantguiltyofFAO(OS)385/2014 & connected matter

contempt. In this regard, he refers to the judgmentreportedas (2009) 5SCC 417AllIndiaAnnaDravidaMunnetrav. L.K. Tripathi.

11. Mr. Nigam would vehementlyargue that the plaintiffshave institutedthe suitonly to frustrate the suit of specific performance filed by the Caravan and theapplicationunderOrder39 Rule 2AofCPC was filed by the plaintiffswithulteriormotives. Accordingto him, it is an admittedfact that legalheirsoflate Smt. BimlaDevi i.e her sons and grandsonsand their families are all residingtogetherin thefirst floor ofthe suiteven as on date. Also theas minordid not property plaintiffsinstitutethe suit throughtheir father or motheror legal guardianbut institutedthesuit through their aunt. He states that the dispute inter-se as alleged by plaintiff Smt. Bimla Devi is ato overcome the admittedamong Group only camaflougedocuments i.e Agreementsto Sell dated November 15, 1991 and November 16,1992 whereby,theirfatheri.e RakeshKumarstoodas witnessand signedthe same.It was the endevourofMr.to canvassthatthe factumofthe transactionsand Nigamover ofwastoof learned onhanding possession brought knowledge SingleJudgeJune 02, 2011 by Mr. J.P. Gupta,Advocatecounselfor Smt. PushpaDevi, who wasalso counsel for the plaintiff(respondents1and 2herein). He states, the ulteriormotive is apparentfrom the fact despitelate Smt. Bimla Devi categoricallystatingmher writtenstatementthat the suitpropertyis aselfacquiredpropertyofhers buteven respondents1and 2hereinin applicationNo. 3710/2015as well as theirfatherFAO(OS)385/2014& connectedmatterRakesh Aggarwal,both have set up acase that the suit propertywas selfacquiredproperty of late Smt. Bimla Devi.It is only to delay the suit for specificperformance filed by Caravan, they have been taking contradictorystands indifferentproceedings. He also states,that theirstandthat late Smt. BimlaDevi hasleft RegisteredWill dated July 30, 2003 is without basis, neither the plaintiffmaster Yash nor father Rakesh Aggarwal have produced the said Will despitedirectionsof the Court. Mr. Nigam would also urge, it was incumbentupon thelearned Single Judge to decide the applicationbeing lA No. 15875/2013 underOrder VII Rule 11 CPC relatingto issue ofmaintainabilityofsuit first as the samegoes to the root of the matter. The relianceupon the order dated August 1, 2013passedin suit No. 1578/1992by the counselfor respondents3and 4to buttresshisthat it wasthat allshall be taken forpoint agreedby parties pendingapplicationsuphearingat the time offinal argumentsis completelymisleading. The saidorderdoesnot relMe to suit in questioni.e CS(OS) 1561/1994. He also statessufficienttimewas not givento put forththe arguments.

12. On the aspectof Section44 of the TransferofPropertyAct is concerned,hestatesthe said submissionis not germaneto the presentappeal. The familiesofthethree co-ownersdo not constitutean undividedfamilyin law. In any event,the suitpropertywas neverthe 'dwellinghouse'ofall the threeco-ownersand theirfamilieshave never ever residedtogetherin the suit property. Even the familiesof two ofFAO(OS)385/2014& connectedmatter

the threeco-ownersnamelylate Smt. BimlaDeviand Smt. PushpaDevi livedin thesuit property,there was no common kitchen or prayerroom. In the last, it is hissubmissionthat the present appeals need to be allowed and the impugned orderdatedAugust4, 2014 needsto be set aside.13. Mr. DeepakSahni, learnedcounselappearingfor appellantSmt. PushpaDeviin FAO(OS)386/2014,wouldsubmitthatthe appellanthas not violatedany orderofstatusquo passedby the learnedSingleJudgevide orderdatedNovember24, 2009.He states, that the appellant was given complete liberty to deal with her 1/3'^''undividedshare mthe suit property.Accordingto him, an applicationfiled by theappellantin the suit, being LA. No. 12948/2008under Order 39 Rule 4read withSections 94 &151 CPC was allowed by the learned Single Judge, as whole,withoutattachingany fetterson her 1/3''''sharein the suitproperty. He wouldstate,thatmthe replyfiledby the plaintiffs(respondents1and 2) to I.A. No. 12948/2008,they have admittedthat order dated May 7, 1997 has been merged in order datedSeptember16, 2005. In the same manner, after passingof order dated November24, 2009, the previousorders have merged in the said order dated November24,2009. He states, the learned Single Judge vide order dated November24, 2009,clarifiesthe tact that the dispute is only with regard 1/3'" share of late Smt. BimlaDevi. Accordingto him, Smt. Shanti Devi Group and the appellantherein, weregiven libertyto deal withtheirrespectiveundividedsharesin the suitproperty. TheFAO(OS)385/2014& connectedmatterCourt duly consideredthe fact that the appellantis aproformadefendant,againstwhom no reliefwasThe factum ofthe saidso actuallyprayed. liberty, grantedbythe Court,was also duly recordedin the Agreementto Sell datedMay 25, 2011.Hewould state,smce mception,the appellanthad been in the possessionofthe groundfloor ofthe suit propertyand BimlaDevi Group had been in the possessionofthefirst floorand terrace/secondfloor. Thepossessionofthe plaintiffs(respondents1and 2) is not disturbedsince 1994 till today, as the entirepropertyas awhole hasseparatedrive way / gate / ingress/ egress / kitchen/ worship place etc. for thegroundflooroccupantswhereby,it is ensuredthatno disturbanceis causedand / orno privacyis infringedby /ofthe occupantsoffirst floor, i.e., BimlaDevi Group.He would state, the appellant, who is presently 88 years old, only settled herdisputes with Caravan to put an end to protractedlitigations,which were / arependingsince 1992,to havepeacein restofherlife.She did not warnthisprotractedlitigationto be passed on to her childrenand grand-children. It is his submissionthatthe AppellanthereinexecutedsaledocumentswithCaravanin the year2011,incontinuationofthe previousadmittedAgreementsto Sell datedNovember15, 1991and November 16, 1992, by getting enhanced consideration.Caravan merelysteppedintothe shoesofSmt. PushpaDevipursuantto an out ofcourtcompromise,which in fact was nothingbut honoringthe previousAgreementsdated November15, 1992 and November 16, 1992 emered into by all co-owners on one hand

(includingLate Smt. BimlaDevi)and Caravanon the otherhand. In the end, it is hissubmissionthat no prejudicehas been caused to Bimla Devi Group with the saidtransferofthefloorand no thirdto the Us was inductedin the groundparty property.14. Mr. Dayan Krishnan,learnedSeniorCounselappearingfor respondents1and2 would justifythe impugned order, inasmuch as the appellantsin these appealshave violatedtheorderthewere restrainedfrom injunctionwhereby, parties partingwith possessionofground floor ofpropertybearingNo. 42-44, SunderNagar, NewDelhi inasmuchas theofthefloorofthe suitwas possession groundproperty partedwith by Smt. Pushpa Devi in favour of the appellant. It is his submissionthat thepropertyis an undividedresidential/dwellinghouse being used for the residenceofonly the family members/relativesof the respondents1 and 2 until the Caravanenteredinto illegalpossessionofthe groundfloorofthe undivideddwellingunits inviolationof the injunctionorder and also in violationof Section44 ofthe TransferofPropertyAct. He statesthat the partitionis yet to take place. Until suchtime thepropertyis not dividedand partitionedby metesand bounds,the familymembersasco-ownershave aon each andinchofentireNo.right everysquarepropertybearing42-44, SunderNagar, New Delhi. He would refer to the applicationbeing lA No.4108/1997and orderdated May 07, 1997passedby the Court. He wouldalso referto the applicationfiled by the defendantNo.12 in the suit i.e the respondentNo.17in FAO (OS) No. 385/2014being lA No. 4696/2005seekingmodificationoforder

FAO(OS)385/2014&connectedmatter2/ of61

dated May 07, 1997. Accordingto him, vide order dated September16, 2005, theinjunction order dated May 07, 1997 was modified to limited extent on theapplicationof the respondentNo. 17 herein. Accordingto him, the respondentNo.17 was not inof the suiton the date of the said physical possession propertyorder,despitethis Courtwas clearand categoricalin its directionthatthe statusquowill be maintainedin respectof possessionofthe partiesto property. There is no%doubt or ambiguityor any confusionon the orderpassed by this Court as the orderis absolutelyclearand speaksfor itself He statesthatthe orderdated September16,2005 has two parts. The part 1 includes "thatthe status quo will be maintainedinrespectofpossessionof the parties to propertybearingNo.42-44, SunderNagar,New Delhi".Part 2 includes "however defendant No.12 shall be entitled toexercisehis rightsanddeal with his undividedshare in the suitproperty". It is thesubmissionof Mr. Krishnanthat the expression 'deal' has to be read in the contextof undividedshare in the property,which can be sold but withoutpartingwith the/possessionof the property. Accordingto him, this is consistentwith Section44 ofthe Transferof PropertyAct. He would referto Section44 ofthe said Act. He alsostates, that if the submissionmade by Mr. Nigam that the expression 'deal' alsoincludestheandtowiththen the earlierofthe order power right part possessionpartbecomes meaninglessand amounts to renderingotiose/negatingthe said directiondirectingthe parties to maintain status quo of possession. Accordingto him, the

FAO(OS)385/2014&connectedmatter

22 of61

onlycorrectand fairinterpretationofthe orderdatedSeptember16, 2005 is that theCourtpermittedthe applicantto deal with his undividedsharei.e to sell the same.notthebut all thewere directedto maintainstatusHowever, only applicant parties ofthe He would theofthis Courtin the casequo possession. rely upon judgmem^asreportedthe'ho.e.er'has to bea He statesthatthewere expression givenmeaning.parties.0 maintainstatusofthe suitwhich is clearfrom thequo qua possession property,languageofthe order. He also states,no appealwas filed againstthe order. Smt.Devi wasato thein the suitat the timeofofthePushpaparty proceedingspassingorderand was bound by the same. He also states,tite fact that Smt. PushpaDevihad prayed for vacationofinterimordersdated May 07, 1997 and September16,2005.asashowsthatDevi was awarethattherewas anwhole,clearly Smt, Pushpainterim order operatingagainstthe parties in respect of the suit property,whichincludedthe injunctionrestrainingthe partiesfrom partingwith possession. Thus,thewere awareand consciousthat the first interimorderdatedclearly partiesMay07, 1997 was completeand absolute,inasmuchas the partieshad to maintainbothstatusoftitleas well asofthe Videorderdatedquo possessionproperty.September the earlierorderdated was modifiedto tire limitedextent16, 2005, May 07, ,997that one of the parties had been permitted to deal with his undivided share.However, ail the parties have been restrained, injuncted from parting with

FAOfOSj385/2014&connectedmatter

possessionofthe property. Hence,therewas no doubtor ambiguityin the orderorin the mind ofthe partiesthat defendantNo.12 could deal with his undividedsharein the propertyand injunctionorderwas existing,whichrestrained/preventedall theparties including defendant No.12 from parting with the possessionof the suitproperty. It is for thisreason,appellantSmt. PushpaDevi madeacategoricalprayerin IA No. 12948/2008for discharge,vacation,modificationofthe status quo orderdated May 07, 1997,whichhas been latermodifiedvide orderdated September16,2005 as whole.

15. Accordingto Mr. Krishnan,therewas no reasonfor the appellantSmt. PushpaDevi to includethe word 'as whole' ifthere was noorder injunction operatingagainstpartingwith possession. Thus, all the partieswere awarethat there was aninjunctionorder operatingagainst all the partiesto the suit restrainingthem frompartingwith possessionofthe propertyand also title exceptdefendantNo.12, whowas permittedto sell his undividedsharebut withoutpartingwith possession. Hehas drawn our attention to the order dated November 24, 2009, both in lANo.12948/2008and in CS(OS) No. 1561/1994. It is his submissionthat from theorderdatedNovember24, 2009, it is clearthat the appellantSmt. PushpaDevi hadasked for larger reliefs in the application. But at the time of the argumentshadprayed for, beinggrantedthe same libertyas has been grantedto defendantNo.12(respondentNo.17 herein) in the order dated September 16, 2005, to which the

FAO(OS)385/2014&connectedmatter

counselfor the respondents1and 2 had conveyedhis no objectionto the appellantSmt. PushpaDevi beinggrantedthe same liberty. This v^as done primarilybecausethere was no dispute qua the undivided share. Accordingly,the appellant Smt.Pushpa Devi was allowed to deal with her 1/3''' undividedshare in the property.There was noon the merits. The orderwason the basis ofthe adjudication passedconcessionstatementmade by the learnedcounselfor the parties. In the suit also,the learned Single Judge has made it clear that the order being passed for theappellantSmt. Pushpa Devi was the same order, as was passed in favour of thedefendant No.12. There is no doubt/ambiguityin the order. Mr. Krishnan furtherstates that Caravan was party to the suit at the time of the passing of the orderdated November24, 2009 and was duly representedat the hearingon the said date.Therefore, the appellant cannot feign ignorance of the said order dated November24, 2009 or the proceedingsthat transpiredon that date. Accordingto him, there isno disputethatthe appellantSmt. PushpaDevi had partedwiththe possessionoftheground floor of the propertybearingNo. 42-44, SunderNagar, New Delhi despitethe existenceofthe injunctionorderpassedby this Courtrestrainingthe partiesfrompartingwith possession,whichmakesit apparentthatthe appellantand Smt. PushpaDevi committedcontemptof the Courtby violatingthe injunctionorder.propertyand at best, she was entitledto partwith possessionof 1/3"*of her share inthe property under order dated November 24, 2009, whereas she has transferredpossessionofthe entiregroundfloorofthe propertytothe appellantCaravan,whichis in excess of her 1/3"^ share. Therefore,the appellant Smt. Pushpa Devi andCaravan had violated the order. If there was doubt or clearly injunction anyin the mindsoftheit was incumbent them tothisambiguity parties,upon approachCourt, seeking clarification, rather than to act in manner, which suited theircommercialconveniencewhich was in violationof the injunctionorder passed bythis Court. He would rely upon the judgment reported as (2009) 2 SCC 166 K.A.Ansari and Anr. v. Indian Airlines Ltd. in support of his contention that if therewaswere any doubt with regardto the interpretationof an orderthen the appellantswithin their rights to approachthe Court seekingclarification. He states,the veryfact that lengthyargumentshad been advancedby the appellantsin their appeal onthe meritswould, itselfshow there was no confiisionbut now case is soughtto bebuilt to avoidtheofviolationoftheorderon the up consequences injunction groundthat there was some confusion. He would theas AIR rely upon judgmentreported1961 SC 221 State of Bihar v. SonabatiKumari. Alternatively,he would argue,even if there was some confusion,that is factorto be consideredonly at the timeofsentence. Therefore,the appellantswere rightlydirectedto deliverthe possessionof the ground floor of the propertyin question. This cannot be avoided,denied or

p^gg26 of61

escaped by the appellants herein. He would also rely upon the judgments in the casereported as AIR 2004 SC 4419 State ofBihar and Ors v. Rajendra Singh and Anr.,AIR 2006 SC 909 Union ofIndia and Ors v. Subedar Devassy. In the last, it is hissubmissionthatthe respondents1and 2, had agreedthat 1/3'"'^undividedsharecanbesold without parting with possession because insofar as title of the said defendantsin the suit was concernedthere was no dispute.However,for possessionthepropertyis yet to be partitioned. Therefore,the injunctionorderrestrainingpartingwith possession was never modified/vacated. He would also contend that thepresentappealsbeingintra-courtappeals,on findingofa fact, unlessthe AppellateBench reaches conclusionthat findingof the learned SingleJudge is perverse,itshouldnot disturbthe same merelybecauseanotherview is possible. In this regard,he would rely upon the judgment reportedas (2016) 1 Scale 320 The Managementof v. The Workmen of Narendra & Narendra & Company Private LimitedCompany. He seeksthe dismissalof the appeals.He states,his submissions,be readas submissions to the appeal filed by Smt. Pushpa Devi as well.

17. Mr. Manish Vashisht learned counsel appearing for the respondents3 and 4 inthe appealswould submitthat the plea of Mr. Nigam that the learnedSingleJudge,instead of deciding an application under Order 7 Rule 11 CPC, decided theapplicationunder Order 39 Rule 2A CPC, which is inappropriateis concerned,theapplicationunderOrder39 Rule 2A was filed by the respondents1and 2 inthe year

FAO(OS)385/2014 & connected matter

2012 and the applicationunderOrder7Rule 11 CPC by the appellantCaravanwasfiled as an afterthoughtonly in the month of December,2013. He states,that theappellantCaravanwas impleadedas adefendantin the suit vide order dated May13, 2008 and it is highlysurprisingthat no such applicationfor dismissalofthe suitwas filed for aperiodoffive and ahalfyears. The issueofnon maintainabilityhasno on the disobedienceof the orders the Court even bearing passed by though,it is found thatsuch suitwas not maintainable.ultimately

18. With regardto the submissionofMr. Nigam that the learnedSingleJudge didnot decide the applicationbearing CCP No. 70/1994 against the appellant Smt.PushpaDevi and respondents3to 4, which was filed by the appellantin CS (OS)No. 2443/1993and thus committedan error anwhich wasby takingup application,filed under Order 39 Rule 2A CPC is concerned,the application,which was filedwas never listed before the learned Single Judge when the arguments on theapplicationunder Order 39 Rule 2A were heard and the matter was reserved fororders. He states,to the contraiyvide order dated August 01, 2013 passed in CS(OS) No. 2443/1993 the counsel for the appellant Caravan stated that all theremainingpending applicationsmay be taken up for hearing at the time of finalarguments-ofthat suit filed by the appellantCaravan. Therefore,on the face of it,this argumenton the partofthe appellantis fallacious.

19. Insofaras the plea of Mr. Nigam that the appellantCaravan was under theimpression that there was no embargo on Smt. Pushpa Devi to transfer thepossessionofthe propertyas the orderdatedNovember24, 2009 did not specifyorput any restrictionson the transferof possessionis concerned,Mr. Vashishthadsubmittedthe following;-

(i)The Courtwas adjudicatingupon an undividedresidentialpropertyvizaviz itsco-owners and stranger.

(n) The Court from time to time in order to protect the intrinsiccharacterandnatureofthe undividedpropertypassedvariousfollowingorders:

a.OrderdatedOctober27, 1993 passedin CS (OS) No. 2443/1993;

b.OrderdatedAugust25, 1995 confirmingthe aboveorder.

c.OrderdatedMay 07, 1997 in the presentsuit;

d.OrderdatedSeptember16, 2005;

e.OrderdatedOctober12, 2006passedin CS (OS) No. 690/2006;

fOrderdatedAugust22, 2007;

g.OrderdatedNovember24, 2009.

All the to the suit were aware thatorders restricted(iii) parties fully injunctionthem from transferringthe possessionof the property to any person outside thefamily. There was no occasionfor any of the parties to have misunderstoodtheimport of the injunctionorders or to have arrived at differentunderstandingor

Page 29„ of61

to the aforesaidorderswhichwerereasoningrelatingpassed.

(iv) That reading of the documents dated May 25, 2011 and May 30, 2011establishesthe express knowledge of the appellantCaravan about CS (OS) No.690/2006. In this suit an orderdatedOctober12, 2006 was passedto the followingeffect:

"The counselfor defendantstates that he has no objection if the saidapplicathnis allowedsubjectto the statusquo order with regardto the title.\possession and state of construction regarding the suit property beingequallyapplicableto theplaintiff In the circumstances,partiesare directedto maintainstatus quo with resardto the title, possessionand the state ofconstructionregardingthe suitpremisesaforesaidtill thefinal disposalofthe suit. To this extent,ordersdatedApril22, 2006aremodified."

(v) The orders which were passed in CS (OS) No. 690/2006 and CS (OS) No.2443/1993 as stated were also in the suit from which the supra passed presentAppeal has arisen.

(vi) The order dated September16, 2005 was passed in the presentsuit wherebythe Court,whilepermittingthe defendantNo.12 to exercisehis rightsand deal withhis undivided share without parting with the possession of any portion of thepropertyalso directedall the partiesto maintainstatusquo as qua possessionoftheproperty. The relevantportionofthe orderis reproduced:

view ofthe statementmade by the counselfor the plaintiffs,the orderdated May 07, 1997 is modifiedto the extent that the status quo will hpmaintainedin respect ofpossessionofthe parties to propertyNo. 42-44Sunder Nagar, NewDelhi."'

(vii) The other appellantSmt. PushpaDevi did not impugnor challengethis orderbefore the Appellate Court. However, after 3 years Pushpa Devi filed lA No.12948/2008 under Order 39 Rule 4 CPC for vacation of the order dated May 07,1997 and September 16, 2005.

(viii) The presentappellanthad alreadybecomethe party when Smt. PushpaDevifiled the lA No. 12948/2008. The said applicationwas never opposed by theappellantherein,even though, admittedlyas on that day, the appellantand PushpaDevi were adversaries and fighting tooth and nail.

(ix) Duringthe argumentsSmt. PushpaDevi restrictedher prayerraisingthe pleaof parity as recordedin the order dated September16, 2005. The counsel for the 1 and 2 also conceded when the of was andrespondents plea parity pressedaccordinglyorder dated November 24, 2009 was passed permittingSmt. PushpaDevi to exerciseher in the undividedas were accordedto the other rightsproperty

defendantNo.12. Thefollowingorderwas passedonNovember24, 2009:

"It is submitted learnedcounselfor defendantNo.8 thatdefendantNo.8wasbyentitledto undividedl/3rd share in the property. This court vide order dated16thSeptember,2005 hadgiven libertyto defendantNo.12, who was similarlyplacedthat defendantNo.12 shall be entitledto exercisehis rights and dealwith his undividedshare in hisproperty.Restates that defendantNo.8 is alsoentitledfor the same liberty.

Learned counselfor the plaintiffsstates that as far as defendantNo.8isconcerned,her l/3rdshare in thepropertyis not disputedand counselfor theplaintiffshas no objectionin case, the similarorderas in respectofdefendantNo.12 has been passed is also passedin favour of defendantNo.8. In view of

this submission,the applicationfor modifyingthe statusquo orderdated16thSeptember, 2005 is allowedand it is observedthat defendantNo.8 shall beentitledto exerciseher rights and deal with her undividedl/3rd share in theproperty. "

(x) The mandate of the order dated November 24, 2009 so as to maintain thesanctityof possessionis furtherclear from the readingof the latterportionof theorder, wherein while concluding,the learned Single Judge further observed that''since the property is not dividedso far, the defendantshall remain entitledtoundividedshareandtheymay dealonlywith undividedshare."

(xi) No applicationseekingany clarificationor allegingany misunderstandingof the order dated November24, 2009 was filed by the appellantor even bySmt. Pushpa Devi.

(xii) The aforesaidchainofsequenceoffacts categoricallyand withoutany iota ofdoubt establishthat at no pointoftime since 1993 till date, the Courtshad allowed co-ownerof theto transfertheor to the nature ofany property possession changetheoutsidetheorain it. propertyby inductingany person familystranger(xiii)TheorderdatedNovember24, 2009 was furtherclearto the effectthat the co-sharerscan deal with theirundividedshare as thewas not only property partitionedby metesand boundsbut cannottransferthe possession.

(xiv)Therefore,there could not have been any scope for any party to the suit toallege that the orders dated September 16, 2005 or November 24, 2009 were

incapableofcommunicatingthe clearmandateand restrictionimposedby the Courtwhilekeepingin viewthe natureofthe propertywhichwas an undividedone.20. On theofMr. ArvindthattheCaravanwas notain pleaNigam appellantpartythe suittill May 13, 2008, it was not awareofthe orderswhichwere passedand theorders were not applicableto it, it is the contentionofMr. Vashishtthat the orderdated November 24, 2009 was passed in the presence of the counsel for theappellant in which clearly the order dated September 16, 2005 was discussed.Accordingto him, till November24, 2009 the appellantwas an adversaryto theotherco-sharersand the remainingpartiesto the suit and since 1993 the endeavourofthewas to securethe status orderinofthe suitso appellantquo respectpropertythat the possessionand title could not be transferredor the nature ofthe propertycouldnot be changedtill the decisionofits suitofspecificperformance.Therefore,when the orderdatedNovember24, 2009 was passed,the appellantwas not affected the same and had no reasonsofthe observationswhichwerebyany grouseagainstpassed by the learned Single Judge directing the parties not to deal with thepossessionor transferofpossession. The prayerallowedwas only with respectto apermissionto deal with the undividedshare. No appeal or any modificationoftheorderdatedNovember24, 2009 was soughtby the appellantor Smt.PushpaDevi.21. Even on the plea ofMr. Nigam that the orderdated November24, 2009was

very ambiguousand was confusingone, Mr, Vashishtwould submitthat the samewas clearand unambiguous. Nothingprecludedthe appellantCaravanfrom filingan appropriateapplicationbefore the Court seeking clarificationon the presumedambiguity. He states, aparty who pleads ambiguityhas to act above board byapproachingthe Court which has passed such an order and to seek necessaryclarification. The plea that the applicationunderOrder39 Rule 2A CPC was filedas an afterthought,when the respondents3and 4failedto get any injunctionordersin their suit bearing CS (OS) No. 1587/2011 is concerned,Mr, Vashisht wouldsubmitthat the CS(OS) No. 1587/2011 is an independentremedy which has beenfiled in terms of Section 44 of Transferof PropertyAct, 1882 and the cause ofaction in the said suit is alsoand numerous urged supported approvedbyjudicialpronouncementincludingthejudgmentofthe SupremeCourtin the casereportedas(1990)2see117Domb CawasjiWardenand thejudgmentofthe CalcuttaHighCourt,OrissaHigh Court and AllahabadHigh Court, He states,that an injunctionorder dated July 04, 2011 was also passed in favour of the respondents3and 4,Nevertheless,the saidsuitand the impugnedorderhas no connectionat all and bothare independent of each other.

22. Even on the plea of appHcationunder Order 39 Rule 2A CPC is barred bylimitation,Mr. Vashishtwouldsubmitthatthereis no limitationprescribedto file anapplicationunderOrder39 Rule 2A and furtherthe disobediencebeingarecurringFAOfOS)385/2014&connectedmatterPage 34 of61

cause, no party can raise immunity from punishment on the ground of delay.Accordingto Mr. Manish Vashisht,even the plea on behalfof the appellantthatappellanthas paid Rs.20 Croresto the two co-sharersand that the appellanthas aninherentrightto occupythe groundfloorofthe propertyis misconceived,inasmuchas the law does not permitthe purchaserofan undividedshare to intrudeinsideadwellmg house without seeking reliefof partition. The appellantought to haveimpleadedhimselfas aplaintiffin CS (OS) No. 690/2006 after purchasingtheundividedrightsoftwo co-sharersand prayedforadecreeofpartitionby metesandbounds. No partytoalis can be permittedto evenargueequitywhensuchapartyisguilty of disobeyingthe orders of the Court. On the plea of Mr. Nigam that thecontestingrespondentson the first floorare in possessionofpeaceful,separateandmexcessoftheirshareis amisconceivedargument,inasmuchas whenasharein anundividedhouse is purchased,no portionofthe same can be said to be adividedoraseparateone. The differentexit and entry is created by the appellantafter theorderdated 2011 inNo. 1587/2011. It was held that July 04, passed CS{OS) anyrenovationwork on the ground floor would be at the risk and cost of appellantCaravan. Mr. Vashisht would submit that the respondentsare not sitting in anyexcessive share, because till such time property is partitioned, they have anmdisputablerightto enjoy every inch ofthe property. Mr. Vashishtwouldsubmitthatthe relianceplacedon the reportofthe LocalCommissionerby the appellanttoFAO(OS)385/2014&connectedmatter

suggestthe occupationofdifferentfloors by the co-ownersis misplacedin view ofthe reportitselfas areadingofthe LocalCommissioner'sreportwouldshowthat itrecordsthe name ofthe nine persons,who were in physicaloccupationofthe entire Theon behalfofthethattheasproperty. argument appellant interpretation soughtto be given by the appellantis tjie only right argument is also misconceivedandcontemptuous.He states,thatundersimilarcircumstances,the learnedSingleJudgehas takenaconsistemview. He would rely upon thejudgmentreportedas (201S)147DRJ 563 titled Vera Ruth Consalvisv. ManinderPa! Rego Singh, againstwhichwas filed beforethe Divisionwhichwas alsodismissed theappealBench,byDivision Bench as reported in 20IS (DLTSOFT) 158 (DB) Vinay Chhabm&Othersv. VeraRuth Rego Gonsalvis.

23. Mr. ManishVashishtwouldalsosubmitthatthe appellanthas notcontrovertedin the rejoinder,the submissionsmade on behalfofrespondents3and 4, inasmuchas the appellamwas purchasingundividedsharesin the residentialhouse, whichiISfrom theof its own documents. TheCourt in theapparem reading Supremecasereportedas (2009) 7SCC444Ramdasv. SitaBai&Othersand in (2009)10SCC654 Gajara Vishnu v. PrakashNansahebhas held thatan undividedshareofaco-sharer be amatterofsale butcannotbe handedoverto themaysubject possessionvendeeunlessthe propertyis partitionedby metesand bounds. In the end, it is hissubmissionthatthe appellantcannotbe permittedto perpetuatethe illegality,whichFAO(OS)385/2014&connectedmatter

accordingto him is apparentfrom the submissionsmade by him as reflectedabove.He would the in the case of AllExcise Licensee's rely upon judgment BengalAssociationv. RaghabendraSingh&Others(2007)11 SCC374and (1999)7SCC569KapildeoPrasadSah v. StateofBihar. He praysthat the appealfiled is liableto be dismissed.

24. Insofar as the appeal filed by Smt. Pushpa Devi is concerned, it is thesubmissionof Mr. Vashisht that the same need to be dismissed in view of theadmission of the appellaM Smt. Pushpa Devi at page 40 (paragraph27) of theappeal,whereinshe has pleadedas under:-

'thatlegalopinionwassoughtbytheappellantbeforedealingwithhersharein the saidpropertyand the appellantwas clearlyadvisedby her counselsthatthereis absolutelyno barin the appellantdealingwith hershareand/orTJgrouLfloo"^''transferringofpossessionof

25. He would also state that the appeal is misconceivedin view of the followingadmitted facts

i.The litigationensued qua the subject matter i.e propertyNo.42-44, SunderNagar,NewDelhirelatingto the partiesto the presentappealin the year 1993.

n.That subjectpropertyadmittedlyis an undividedresidentialhouse. No actualphysicalpartitionby metesand boundshas takenplacetill date.

ni.That various interim orders to protect transferof title andpossessionwere

passed by this Court in its ordinary civil jurisdictionin respect of tlie subjectproperty,

iv.Tliat theSmt. Devi was as adefendant in the appellant Pushpa impleadedfollowingsuits/proceedings:-

a.CS(OS) No. 2443/1993 titled "Carvan Commercial Company Limited v,PushpaDevi&Ors". (as defendantNo.l).PushpaDevi&Ors". (as defendantNo.l).

b.CS(OS) No.1561/1994"Master Yashaswi Aggarwal &Another v. RakeshAggarwal&Others' PushpaDevi was impleadedas defendantNo.8.Aggarwal&Others' PushpaDevi was impleadedas defendantNo.8.

C.CS(OS)No. 690/2006titled"MahenderKumarGupta&Ors v. PushpaDevi&Ors.Asuitforin whichDeviwas DefendantNo.1. partitionPushpaOrs.Asuitforin whichDeviwas DefendantNo.1. partitionPushpa

d.Suit bearingNo.l578/I992titled "Arun Batra v. Bimla Devi &Ors. PushpaDevi" was defendantNo.7 in the said suit.theofthe (For purposesdecidingDevi" was defendantNo.7 in the said suit.theofthe (For purposesdecidingpresentappealthis suithas no relevance).

26. Accordingto him, the submissionsmade by learnedcounselfor PushpaDeviare misconceivedand untenablein viewofthe following:-are misconceivedand untenablein viewofthe following:-

(i) Thatthis Courtwhileadjudicatingupon the suit was seizedwith an issueofaresidentialhouseits co-owners.partitionquaamong

(ii)To protect the intrinsiccharacterand nature of the undividedpropertyvariousfollowingorderswere passedby this Court:

a. 07.05.1997,@199

b. 16.09.2005,@213-214

c. 22.08.2007, @216-218

d. 24.11.2009,@233-236.

That all theto the suit were also aware ofthe fact that(iii) partiestheywere restricted the aforesaidinterimorders which wasbyinjunction passedfromtheto third There was no occasion transferring possession any party.for any ofthe partiesto have misunderstoodthe importofthe orders or tohave arrived at different understanding or reasoning relating to theaforesaidfour orderswhichwereand modified.passed

(iv)That besides above, the appellant Smt. Pushpa Devi was alsocontestingtwo differentsuits as defendantbefore this Court wherein sheand the otherco-defendantswere restrainedfromor alienating,transferringpartingwith possessionin respectofthe suitproperty.

(v)In CS(OS) No. 2443 of 1993 she was restrainedalong with other co-defendantsto deal with theand to maintainstatus This order propertyquo.was confirmedon 25.08.1995and is in operationtill date.

(vi)Thatin anothersuit for PartitionCS(OS)No. 690 of2006 an Orderdated 12.10.2006was passedin CS(OS)No. 690/2006where the appellantDevi was defendantNo.l to theeffect:PUshpa following

''The counselfor defendantstates that he has no objectionifthe saidapplicationis allowedsubjectto the status quo order with regardto thetitle,possessionandstateofconstructionregardingthesuitpropertybeingequally applicable to the plaintiff In the circumstances,parties aredirectedto maintainstatus withtn the title.and thequo regardstate of constructionregardingthe suitpremisesaforesaidtill thefinaldisposalofthesuit. To thisextent,ordersdated22.4.2006aremodified."

(vii)The orders which were passed in CS(OS) No. 690 of 2006 and CS(OS) No.2443 of 1993 as stated supra were also passed in the presentsuitfrom which the Appeal had arisen.

(viii)The order dated 16.9.2005was passed in the presentsuit wherebythe Hon'ble Court, while permitting the defendant No.12 to exercise hisrightsand deal with his undividedsharewithoutpartingwith the possessionof any portionof the propertyalso directedall the partiesto maintainstatusquo as qua possession of the property. The relevant portion of the order isreproduced:

"In view of the statementmade by the counselfor theplaintiffs,the orderdated 7.5.1997 is modified to the extent that the status quo will bemaintainedin respect of possessionof the parties to propertyNo.42-44,Sunder Nagar, New Delhi."

(ix)The appellantSmt. PushpaDevi did not impugnor challengethisorderbeforethe AppellateCourt. However,after3 years Appellantfiled lANo. 12948 of 2008 under Order 39 Rule 4 CPC for vacation of the orderdated 7.5.1997 and 16.9.2005.

(x)Thatduringthe argumentsthe Appellantrestrictedher prayerraisingtheplea of parity as recordedin the orderdated 16.9.2005. The counselfor the1and 2 also concededwhen the ofwasandrespondents pleaparity pressedaccordinglyorder dated 24.11.2009was passedpermittingthe Appellanttoexerciseher in the undividedas were accordedto the other rightspropertyDefendantNo.12. The followingorderwas passedon24.11.2009:

"It is submittedby learnedcounselfor defendantNo.8 that defendantNo.8was entitledto undividedl/3rd share in theproperty. This courtvide orderdated16th September,2005 hadgiven libertyto defendantNo.12, who was

similarlyplaced that defendantNo.12 shall be entitled to exercisehis rightsand deal with his undividedshare in hisproperty. He states that defendantNo.8 is also entitledfor the same liberty.

Learned counselfor the plaintiffs states that as far as defendant No.8 isconcerned, her l/3rd share in theproperty is not disputed and counselforthe Plaintiffs has no objection in case, the similar order as in respect ofdefendant No.12 has been passed is also passed in favour ofdefendant No.8.

In view ofthis submission,the applicationfor modifyingthe statusquo orderdated 16th September, 2005 is allowedand it is observedthat defendantNo.8 shall be entitled to exercise her rights and deal with her undividedl/3rd share in theproperty.

(xi)That the mandate of the order dated 24.11.2009 so as to maintainthe sancity of possession is further clear from the reading of the latterportion of the order @ page 235, wherein while concluding,the learnedSingle Judge furtherobservedthat "sincethe propertyis not dividedso far,the defendantshall remain entitledto undivided share and they may dealonly with undivided share."

(xii)The aforesaidchainof sequenceof facts categoricallyand withoutany iota of doubt establishthat at no point of time since 1993 till date, theCourts had allowed any party to transferthe possessionor to change thenatureofthepropertybyinductingany thirdpartyor strangerin it.

(xiii)Instead of purging the contemptand correctingthe illegality,thepresent appellant has the audacity to raise frivolous objections andargumentsby takingshelterofher old age. This is calculatedmove by herat the behest of another appellantCarvan CommercialCompany Limited,whichhas intrudedinsidethepropertydespiteinjunctionorders.

(xiv)That the argumentsof the appellantare also misconceivedfor the

simple reason that throughoutthe orders dated September 16, 2005 andNovember24, 2009 remindedeveryonethat the orderswere beingpassedinrespectof an undividedproperty.

(xv)That the actionsofthe Appellantwere calculatedand motivatedsoas to overreachtheoflaw. The actionis also in defianceoflaw. An processerringpartycannotraisethe pleaofignoranceoflaw to his/herdefence. It iswell settledlaw that aco-sharercannotdeliverpossessionofany portionofan undivided property to any stranger or an outsider. Section 44 of theTransferPropertyAct, 1882prohibitsthe same.

(xvi)The Hon'bleSupremeCourt in (2009) 7 SCC 444 titled"RamdasV. Sita Bai &Other" and in 10 SCC 654 titledVishnu v. (2009) "GajaraPrakashNansaheb" has categoricallyheld that an undividedshare of r,r>-sharer be amatterofsale butcannotbe handedovermay subject possessionto the vendeeunlessthe propertvis partitionedbv metesand bounds

(xvii)As stated above it is an admittedpositionthat the suit propertyisan undividedone and thereforeshe couldnot havetransfen-edthe possessionvto Caravan Commercial Property Ltd because of Orders dated 7.5.1997,16.9.2005 and 24.11.2009.

(xviii)Althoughthe ordersdated 7.5.1997,16.9.2005and 24.11.2009arevery clear,unambiguousand constantlyremindedall the partiesto the suittoonly deal with their undividedshare of the property and not to part withpossessionofthe property,yet the appellantcannotbe heard to contendthateven by the usage of the term undividedin the orders, she was under animpressionthat she had been permittedto transfer the possessionof the

property to stranger.

(xix)This wouldbe preposterouson her part even to allegethatthe term"undivided"wouldmeandividedand includesthe transferofpossession."He prays that the appeal be dismissed.

27. Havingheard the learnedcounselfor the parties,to understandand decidetheissue whetherthe learned wasinthat theSingle Judge justified holding appellantsherein were guilty of committingContemptof Court by disobeyingthe status quoorder dated May 07, 1997, subsequentlymodified by orders dated September16,2005 and November24, 2009, it is necessaryto note the said orders. For the saidpurpose, we reproduce the orders as under:

Learned counselfor the DefendantsNo.l and 2 and DefendantNo.2accept notice.

Noticebe issueonlyto the remainingdefendants.

The parties will maintainstatus quo as of today in respectofpropertyNO.42-44, Sunder Nagar, Delhi till the next date.In the meantime,pleadings be completed."

"16.09.2005

XXXXXxxxxxxxxxx

CS(OS)No.l561/1994

lA No.4108/1997and4696/2005

statethathis clientswillhaveno objectioninshareZ1withoutpartingwithextherciposessionseshis rightsofanyandportiondeals wiofthe hisproperty undivided In771/.XI997tIS "mod7ne"drtt modifiedto the extentthatthestatus will bethe maintainedorderdatedin'heplaintiffsquoNewDelhudhrT'""" However, defendantT""'No.12 shall beNo.42-44, entitled Sundto exciseerNagar. hisrights and deal with his undividedshare in the property. With thesedisp7sfd''of"" Nos. 4108/1997and 4696/2005 are

"24.11.2009

xxxxxxxxxx

I.A. No. 12948/2008

This applicationhas been made under Order39 Rule4CPCon behalfofdefendantNo^S with athat the courtshouldthe statusprayermodifyquoorderdated7th ^ay 1^997whichwas earliermodifiedon 16thSeptember,OOJ.IS submittedby learnedcounselfor defendantNo.8thatdefendant. was entitledto undividedl/3rdsharein theproperty. This courtvideorderdated 16th September.2005 hadgiven libertyto defendantNo.12who wasthatdefendantNo12shallbe entitledto exercise smihrlyplacedddefendantJ'f ,« /No.8is also7entitled""'""Idedfor thesameshareliberty.in hisproperty.LearnedcounselHe statesforthat theplaintiffsstatesthatasfar as defendantNo.8is concerned,her I/irdshare'nhi^objection ^in case the similardisputedorderandas in counsel respectforof the defendant plaintiffsNo. has12 has nobeenpassedis alsopassedinfavourofdefendantNo.8

ord"j'Zord^ datedf 16th September, 2005''PP'"""">''f'"- is allowed and'modifying it is observedthe statusthatquoundividedlZidedl/3rdhsarein theproperty.

The applicationstandsdisposedof.

C.S. (OS) No. 1561/1994

The plaintiffs havefiled this suit claiming l/3rd undividedshare in theproperty No.42- 44, Sunder Nagar, New Delhi. The plaintiffs aregrandsonsof Smt. Simla Devi, defendantNo.3 (deceased)and defendantNos.l and 2 arefather and uncle of theplaintiffsrespectively.Smt. BimlaDevi had entered into sale agreement along with co-owners of theproperty with defendantNo.14. The other defendantsare defendants inrespectofother two co-ownersoftheproperty,namely, Smt. PushpaDeviand Smt. ShantiDevi (sincedeceased). They are defendantNos.8and9 to13. There is no disputein respectofundividedl/3rdshare, one ofLRs ofSmt. ShantiDevi or undividedshare ofSmt. Pushpa Devi. The dispute isonly in respect ofl/3rd undividedshare oflate Smt. BimlaDevi.

I, therefore,considerthat all the defendants,who inheritpropertyfromSmt. Pushpa Devi or Smt. ShantiDevi, beingperforma defendants,are atliberty to deal with their respectiveundividedshare of the property. Thecourt had passed similar order in respect of defendant No.12 earlier anddefendantNo.8 today. I consider that the other defendantssimilarlyplacedcannot be treated differently qnd the earlier order of dismissing theapplication made by the defendants is, therefore, recalled. However, sincethe property is not divided so far, the defendants shall remain entitled toundivided share and they may deal only with undivided share. "

28. That apart, we also note the conclusionof the learned Single Judge in the

ordertheofof court wasonimpugnedholding appellantsguiltycontempt primarilythe following findings

"12.There is no dispute about the proposition of law as has beenurgedby the learnedSr. Counselfor DefendantsNo. 4 to 8 and DefendantNo. 14 that when an order of the Court is ambiguousand is reasonablycapable of more than one interpretation,proceedingsfor contemptshouldnot be entertained.Can it be said that the order dated 07.05.1997readwith subsequentorders dated 16.09.2005and 24.11.2009was capableoftwo interpretations? The learned Sr. Counselfor Defendants No. 8 andDefendant No. 14 have stressed that there is no specific mention in theorder dated 24.11.2009thatDefendantNo. 8 willnot be entitledto transfer

possessionofthe suitpropertywhile dealingwith the propertyand thus,even iforder dated 16.09.2005is taken into consideration,at the most itwill show that the order dated 24.11.2009 was capable of twointerpretationsand thus, no action of contempt can be taken againstDefendants No. 8 and 14.

13. I have already extractedearlier the orders dated 16.09.2005and24.11.2009.Orderdated16.09.2005categoricallyrecordsno objectionofthe Plaintiffsin respectofthe right ofDefendantNo. 12 to deal with hisundividedshare withoutpartingwith thepossessionofanyportionoftheproperty. The order dated 07.05.1997 was modified by order dated16.09.2005to the extentthat DefendantNo. 12 deal in his share but maystatus quo was to be maintainedin respect ofpossession ofpropertybearing no. 42-44, Sunder Nagar by the parties. By subsequentapplicationLA. No. 12948/2008,DefendantNo. 8wanteddischargeofthestatusquo orderdated07.05.1997,which was grantedto DefendantNo. 8recordingthat l/3rd share ofDefendantNo. 8 is not disputedand thecounselfor the Plaintiffshas noin case the order asin objection passedrespectofDefendantNo. 12 ispassedin respectofDefendantNo. 8. Thus,everybodywas aware that concessionwhich had been given to DefendantNo. 8 was similar to the oneto DefendantNo. 12 the order granted bydated16.09.2005.Hence, the contentionraisedon behalfofDefendantNo.8 and DefendantNo. 14 that the order dated24.11.2009with regardtowith thewith or withoutwasanddealing propertypossession ambiguouscapableoftwo interpretationsis unfoundedIt may be mentionedthat intheproceedingsunder Order39 Rule 2A CPC, the Court is simplyto seewhether there is disobedienceofthe orderpassedby the Court. It is notpermissiblefor the Courtto examinethe correctnessofthe earlierdecisionwhich is statedto be violatedStateofBihar&Ors. v.(See RajendraSingh&Anr., AIR 2004SC 4419and UnionofIndia&Ors. v. SubedarDevassyPV, AIR 2006SC 909). Thejudgmentsin TamilnadMerchantileBankandSushila Raje Holkar (supra) and K.K. Puri (supra) relied upon by thelearnedSr. Counselfor DefendantNo. 14 and DefendantNo. 8 will notcome to the rescue ofthe Defendantsas there was noin the ambiguityorder. The contentionthat DefendantNo. 8 was inof possession onlygroundfloor ofwhichpossessionwas deliveredto DefendantNo. 14 andthe Plaintiffsand DefendantsNo. 1to 3were inofmore than possessionl/3rdshare in the propertyand thus, there will not be any contemptisnoted to be rejectedfor two reasons. First, as statedearlier, the orderasmodified theorderswas clearthatofthebysubsequentpossessionproperty

Page 46„j/- of61

IS not to be disturbed. Second, even ifit is assumed that PlaintiffsandDefendantsNo. 1 to 3were in possessionofabout 50% of the built-upDefendantNo. 8was also inofthe entirefloorportion,possessiongroundwhich must be more than I/3rdshare ofDefendantNo. 8. Thus, even ifDefendantNo. 8 had been permittedto part with the possessionof the1/3rdoftheto him it was notportion propertybelonging (though done),she could not have deliveredthe possession of entire groundfloor toshowing of Defendant No. 8 about50% ofthe property. "

29. The order dated November24, 2009 was primarilypassed botli in lA No.

12948/2008and CS(OS) No. 1561/1994. The prayerin lA No. 12948/2008under

Order 39 Rule 4 CPC was as under;-

"a. Discharge,vacate,modifythestatusquo orderdated07.05.1997whichhas laterbeen modifiedvideordersdated16.09.2005,as whole;

b. and vacate the status order dated 07.05.1997 and Discharge quo16.09.2005in sofar as it relatesto one-third(1/3'^^)undividedshareoftheapplicant/defendant No.8 or,

c. Incase theofthestatus orderbe restricted any operationquomay kindlyin respectofthe one-third(1/3''')undividedshareofLateSmt. BimlaDevii.e defendantNo.3 only;

Pass any otherandfurtherorder(s) as this Hon'bleCourtmay deemfitandproperin thefactsandcircumstancesofthepresentcase."

30. The prayersmade in the saidlA were inter-aliafor seekingdischarge,vacation,modificationofthe statusquo orderdatedMay 07, 1997 as modifiedon September16, 2005 as whole, insofaras it relatesto the appellantSmt. PushpaDevi's 1/3''''undividedshare. When the said applicationwas listed on November24, 2009, itwas representedby the counselfor Smt. PushpaDevi that Smt. PushpaDevi being

similarlyplacedas defendantNo.12, shall be entitledto the same liberty, Aperusaloforderdated September16, 2005 wouldrevealthatthe orderdatedMay 07, 1997was modifiedto the extent,statusquo was requiredto be maintainedwithrespecttothe possession of the parties to property no.42-44. Sunder Nagar, New Delhi.However,the defendantNo.l2(respondentNo.l7, in FAO(OS)385/2014)shall beentitledto exercisehis rightsand deal withhis undividedsharein the property. ThelearnedSingleJudge,on November24, 2009acceptedthe statememmadeon behalfofthein the1and 2hereinthat he has noin plaintiffs suit, respondents objectioncase similarorder, as in respect of defendantNo,12 be passed in favour of Smt.Pushpa Devi, The Court made it clear that Smt, PushpaDevi shall be entitledtoexerciseherrightsand deal withher undivided1/3"'sharein the property. We agreewith the submissionmade by Mr, DayanKrishnanthatthe relief,as prayedfor in lANo,12948/2008was seekingdischarge,vacation,modificationof status quo orderdated May 07, 1997 as modifiedon September16, 2005 as awhole would surelydepictthat the appellantSmt, PushpaDevi was consciousofthe fact that she couldnot have transferredthe possessionofthe groundfloor ofthe propertyin question,otherwise,she would have only sought asimplicitorprayer that the liberty, asgranted to defendant No,12, be granted to her. In fact, during the hearing onNovember24, 2009, it is notedthatthe counselfor the appellantSmt, PushpaDevihas statedthat his clientis entitledto the sameas wasto the defendant liberty givenFAO(OS)385/2014&connectedmatter

No.12 to exerciseher rights and deal with her "undivided"share in the property.That apart, we note, the Court while passing an order in the suit, has stated asunder:-

"However,sincethepropertyis not dividedsofar, the defendantsshallremain entitled to undivided share and they may deal only withundivided share. "31. The aforesaidobservationunderlinesthe fact that there is no dispute withregardto the undividedshare of Smt. PushpaDevi and Late Smt. ShantiDevi (herlegalheirs)and they are requiredto deal withthe undividedshareonly. Thatapart,there is no express order of the learned Single Judge on November 24, 2009grantinglibertyto the appellantSmt. PushpaDevi to partwith the possessionofherundividedshare. In fact, this appearsto be the understandingofthe Smt. PushpaDevi, as is clear from para 27, of her appeal, whereinshe has referredto alegalopinionsoughtby her, whereinshe was advised,that there is no bar for her to dealwith her shareincludingtransferringthe possession. In otherwords,on legaladviseshe has transferredthe possession,whichpre supposesher understandingthat orderdated November24, 2009 may not have directedthe transferof possession. Theplea ofMr. Nigam, that orderdated November24, 2009 does not bar or put fetterson Smt. Pushpa Devi and the legal heirs of Smt. Shanti Devi for transferringthepossessionbeing performaparties is concerned,the same is aselectivereadingofthe order.The said submission is primarily because, the Court in the earlier

sentencerecords''Thedisputeis only in respectof1/3'''undividedshareoflateSmt.SimlaDevi". Butifthe orderis read in totahty,the lastline,wherein,the Courthassaid -howeversince thepropertyis not dividedsofar, the defendantsshallremainentitledto undividedshareandtheymay dealwith undividedshare"wouldbecomerelevant. Surely in suit for partition,every legal heir has an undivided sharewithout demarcation. The Court was consciousof the fact that demarcationbymetes and bound is yet to take place. Preciselyfor this reason it did not direct,transfer of possessionand it could not have, as that would have made the suitinfructuous. The relianceplaced by Mr. Vashiston the judgmentof the SupremeCourt in the case of Ramdas v. Sita Bai and ors (supra) and Gajara Vishnu(supra), wherein the Supreme Court has held that undividedshare of co-sharermay be subjectmatterof sale but possessioncannotbe handedover to the vendee(purchaser)unlessthe propertyis partitioned,is appealing. The pleaofMr. ArvindNigam that by necessaryimplication,the prayersin the lA were allowedand Smt.PushpaDevi was entitledto deal with and part with possessionofthe groundfloorofthe suitproperty,is also withoutany merit.32. The relianceplacedby Mr. Nigamon thejudgmentofthis Courtin the caseofBanne Singh v. State ofRajasthan(supra), to contend that the word 'Vo deal"impliesthat the offenderhas certainconcernwith the propertyby keepingit, in hispossessionor partingwith ownershipor possessionof the propertythroughany ofFAO(OS)385/2014&connectedmatter

the modesoftransferofpropertyis concerned,the same wouldnot be ofany help tothe appellantCaravan,inasmuchit is the principlefound out upon reading of ajudgmentas whole in the light of the questionsbefore the Court that forms theratio. In the said case, the High Court was dealingwith variousprovisionsof theIPC includingSection413 IPC, which relatesto an offenceofhabituallydealinginstolenproperty. It was in that context,the High Court has culledout adifferencebetween "retaining"and "dealing"and held "to deal"impliesthatthe offenderhascertainconcernwith the propertyeitherby keepingit in his possession,or partingwith the ownership,or possessionof the property through any of the modes oftransferofproperty. It was in the contextofSection413, the High Court has heldthe verb "to deal"is broaderin its scopethan the verb"retain". Whereas,in the casemhand, the word ''deal"has been referredto by the learned Single Judge in theorderdated September16, 2005 and also in the orderdated November24, 2009 inthe context,to deal with "undividedshare" in the propertywithoutpartingwith thepossession. The saidjudgmenthas no application. Furtherit may be statedthat, itis aconcededpositionthat SurinderKumar,defendantNo.12, was not in possessionofsuitproperty,and couldnot havepartwiththe possession. Ifthatbe so, the paritygrantedto Smt. Pushpa Devi, must be read to mean, that she could not have partwith The that defendant No.l2-SurinderKumar was never in possession. pleapossessionofany part ofthe suit premisesand as such, no fetterswere put on him,

wouldnot be tenable,inasmuchas on areadingoforderdatedSeptember16, 2005,it wasdirectedthat^'status willbemaintainedinofof clearlyquo respectpossessiontheparties,topropertyNo.42-44.SunderNagar,NewDelhi"itselfclarifiesthatthepartiescouldnot havepartedwiththe possession. We agreewith the submissionofMr. KnshnanthatifMr. Nigam'sinteipretationofthe word"deal"is acceptedthenthis directionofstatusquo shallbe renderotiose. Hence,thepleaofMr. NigamthatSurmder Kumar was never in the of the is physical occupation propertyinconsequential/irrelevant.It would be irrelevantfor these proceedings,the factumthatmodificationofstatus order was the brothersofSurinderKumarquo soughtbywas denied. The pleaofMr. Nigam,that Smt. PushpaDevi had soughtfull reliefsin her applicationfiledunderorder39 Rule4CPC and her applicationwas allowedasawholevideorderdatedNovember24, 2009and not on concessionis concerned,the same is untenable,as is seen from prayersmadeand orderpassed,it is clearthatthe counselfor Smt. PushpaDevi restrictedthe prayer,seekingparityqua defendantNo.12 mview of order dated September16, 2005. Surely, such aplea suggestconcession,as he had not pressedthe reliefas soughtfor in the application. Theplea of Mr. Nigam, that the order datedNovember24, 2009, places not fetters onSmt. PushpaDevi regardingtransferofpossessionand the orderdated September16, 2005 stood subsumed in the order dated November24, 2009 and camiot beinterpretedto controlthe scope or widthofthe orderdated November24, 2009, is

without merit.

33. Insofar as the plea of limitationis concerned,there is no dispute that lA22682/2012was filedunderOrder39 Rule2A CPC onlywithoutanyreferenceto orunder the provisionsof the Contempt of Courts Act. The limitation becomesrelevantin viewofthe provisionsofSection20 ofthe ContemptofCourtsAct andnot when an applicationunder Order 39 Rule 2A CPC is filed. Even otherwise,when the allegationis ofviolationofan interimorderofthe Court,the applicationwould not be hit by delay and laches. We may note in this regardthejudgmentofthe Court in the case of Bharatbhai v. Gujarat HighJivrajbhai ChaganbhaiSamabhai and Anr. passed in MiscellaneousCivil ApplicationNo. 1751/2011decidedon December14, 2012,whereinGujaratHighCourt,on an identicalpleaoflimitationraisedby the respondents2, 4and5thereinand has rejectedsuchapleaand observedthat merely becausethe proceedingsunderOrder 39 Rule 2A oftheCPC for breachofinjunctionare consideredto be akin to the proceedingsundertheContemptofCourtsAct, the periodoflimitation,as prescribedunderSection20 ofthe ContemptofCourtsAct wouldnot be applicable. The Court also held that theSupremeCourtin the caseofPallavSheth v. Custodianandors (2001) 7SCC549has not held that the period of limitationprescribed under Section 20 of theContempt of Courts Act would be applicable in proceeding for breach ofinjunction under Order 39 Rule 2A CPC.We are in agreement with such aFAO(OS)385/2014&connectedmatter

conclusion. Suffice to state, no period of limitation is prescribedfor initiatingproceedings for breach of injunction under Order 39 Rule 2A CPC, which isprovidedunder Section20 ofthe ContemptofCourts Act. It must be held that solongas the breachofinjunctioncontinues,the aggrievedpartyin whosefavourthereis an injunction,can initiatethe proceedingsfor breachofinjunctionunderOrder39Rule 2A ofthe CPC. That apart, it must also be held that Order39 Rule 2A CPCbeingaspecialprovisioninsertedin the Code, shallprevailoverthe generallaw ofcontemptcontainedin the ContemptofCourtsAct. Further,the submissionofMr.Arvind Nigam that the provisionsof Section 21(1) of LimitationAct, 1963, tocontendthat Caravan,having been added in the suit on May 13, 2008 deemed tohave been institutedon that date only and not earlierdate and the orderdated May07, 1997or September16, 2005 cannotbe read into orderdatedNovember24, 2009for the purposes of contemptis concerned,the same is also without any merit.There is no disputethat orderdated November24, 2009 was passedafterMay 13,2008 when Caravanwas impleadedas apartyin the suit. Further,on November24,2009 when the orderwas passedby the Court,Caravanwas dulyrepresentedby thecounsel. The saidorderexplicitlyrecordsthe statementmade on behalfofappellantSmt. Pushpa Devi herein, defendant No.8 in the suit that Smt. Pushpa DevidefendantNo.8 is also entitledto similaras was to defendantNo.12liberty giventhat is, in the orderdated September16, 2005. On suchsubmission,the counselfor

Caravancouldhave statedbeforethe Court,thatSmt. PushpaDevi is alsoentitledtopart with the possession of the ground floor of the suit property. No suchsubmission was made and the said order dated November 24, 2009 must beunderstood that the appellant Smt. Pushpa Devi was entitled to deal with thepropertyin the samemanneras defendantNo.12 and nothingmore.

34. Insofaras the submissionmade by Mr. Nigamthat the orderdatedNovember24, 2009 is susceptibleto two inte»onsis concerned,the same is also withoutany merit. We have alreadyreproducedthe orders passed by the learnedSingleJudgefrom time to time in the suit. The ordersare veryclearand explicit. Thereisnothingin the orderdated November24, 2009, which suggeststhat the prayersasmade in lA 12948/2008have beennor there isorder granted any express givinglibertyto theappellantSmt.PushpaDevito partwiththepossessionoftheproperty.The learnedSingleJudgewas rightin rejectingthisplea in paras 12 and 13, whichwe have alreadyreproducedabove.35. The relianceplacedby Mr. Nigam on thejudgmentsofthe SupremeCourt inthe case of State of Bihar v. SonabatiKumari (supra), SushilaRaje Holkar(supra)and TamilMercantileBank (supra)are not applicablein the facts ofthiscase, as there is no ambiguityin the order and the same is capable of only oneinterpretationand not more than one interpretation,as soughtto be contendedby

Mr. Nigam. Theprayersmade in the apphcationsuggestthatit is the understandingofSmt. PushpaDevi alsothatthereis abaron herto partwith the possessionoftheground floor ofthe propertyin question,which surelywould make the actionas adeliberate and willful.

36. Insofaras the pleaofMr. Nigam that the legal heirs of late Smt. Bimla Devihave occupiedmore than M'- of the suit property,much above the share of lateSmt. Bimla Devi is also withoutmerit, as the natureofpropertybeing undivided,and not partitioned,the sharesare not determined. In any case,suchan argumentisnot tenablewhen the allegationis ofviolationoforderspassedby the Court.

37. Insofar as the plea of Mr. Nigam that two sons of late Smt. Bimla Devithe1and2neverofthefloorofthemcludmg respondemsoccupiedany part groundsuitpropertyand theirpossessionon the firstfloorand terraceremainedundisturbedsmce 1994withaseparateentry/exitpointisalsowithoutanymerit,as thesuitis forpartitionmay be inter-sebetweenthe legalheirsoflate Smt. BimlaDevi but thereisno partitionby metes and boundsbetweenthe legal heirsof late Smt. BimlaDevi,Smt. PushpaDevi and the legalheirsofSmt. ShantiDevi. So, it was not conclusivethat Smt. Pushpa Devi had aclear tifle of the ground floor so as to part with thepossessionofthe same. Therightwas onlyan undividedrightand occupationofthefirst floor cannot be construedto mean that Smt. Pushpa Devi has aright to part

withpossessionofthe groundfloor.

38. The pleaofMr. Nigam,thatCaravanhas been restrainedfrom transferringtheground floor of the suit propertyin CS(OS) 1587/2011and the appellantis readyand to undertaketo be bound the decisionof the said suit and willing by upondivisionofthe propertyacceptany partofthe suitpropertyas it sharealso doesnot as we are in thiscaseconcernedwiththe violationofordersin suitappealus,passedbeing CS(OS) No.1561/1994and it is the legalityof the impugnedorder of thelearnedSingleJudge, which needs to be adjudicatedand nothingmore. An orderpassedin anothersuitbeingCS(OS)No. 1587/2011againstM/s Caravanrestrainingit from transferringthe groundfloorwouldhave no bearingon these appeals. Thesaid order in CS(OS) No. 1587/2011 is to the effect that M/s Caravanwould notcreatethirdparty rightsby transferringit fiirther,which has no bearingon the factwhether Smt. Pushpa Devi could have parted with the possessionof the groundfloor.

39. The plea of Mr. Nigam that the plaintiffinstitutedthe suit only in ordertofrustratethe suit ofspecificperformancefiled by M/s Caravanand the applicationunder Order 39 Rule 2A CPC was filed by the plaintiffwith ulteriormotives isinconsequentialwhen the Courtbelowand thisCourtis concernedwith violationofthe orderspassedin the suit.

40. Similarly,the plea of Mr. Nigam that the plaintiffhas institutedthe suit toovercomethe Agreementsto Sell datedNovember15, 1991 and November16, 1992is also inconsequential,whichhas no bearingon the plea ofthe respondents1and 2allegingviolationof orderdatedNovember24, 2009.

41. Further,the plea ofMr. Nigam that it was incumbenton the learned SingleJudge to decide applicationbeing lA No. 15875/2013under Order 7 Rule 11 CPCrelatingto the issueofmaintainabilityofthe suitfirst as the same goesto the rootofthe matter also does not appeal us, when the issue relates to non-complianceofordersin the suit where the said lA has been filed. The non considerationof the lAis no fororders The that sufficienttime was ground violating alreadypassed. pleanot grantedto put forth the argumentsbefore the learned Single Judge is also nottenable, as we find that the appellants had in fact violated/overreachedthe orders.Further while hearing the appeals, this Court has granted sufficienttime to thelearned counsel for the parties to argue the appeals and as the final conclusionwould determine, the appeals are without any merit, impugned order cannot befaulted on that ground.

42. On the submissionrelatableto Section 44 of the Transfer of Property Act,sufficeto state the possessionof the ground floor could not have been partedwith,in violation of orders passed.

43. Insofaras the submissionmade on behalfof appellantSmt. Pushpa Devi byMr. Deepak Sahni that the appellantbeing of old age, decidedto settle the matterwith M/s Caravan and agreed to sell her 1/3^'' undividedshare in the propertytoCaravanwith deliveryofpossessionofthe groundflooron the adviseofher counselis not convincmg. No argumenthas been made during the appeal neitherby thecounsel of the Caravan or theherein that are to reverse the appellant they readypossession. Her right to sell her 1/3'''^share is not disputed/contestedbut she couldnot have partedwith possessionin view oforderdated November24, 2009, whichwas passed on her asking whereby she was permittedto deal with her undividedshare. The contentionthat she had an absoluteright includingdelivery/transferofpossession of the ground floor is not acceptable as the mandate of the ordersincluding order dated November 24, 2009 was to maintain the sanctity ofpossession.

44. Insofaras thejudgmentsreferredto by Mr. Nigam are concerned,in Sahdev@Sahdo Singh (supra), is concerned, in the said case in para 16 and para 20, onwhich reliancewas placed,the SupremeCourt held that punishmentunder the lawofcontemptis calledfor when the lapse is deliberateand action cannotbe taken inan unclearcase and the charge has to be proved beyond reasonabledoubt. In thecase in hand,there is no doubtthatthe Courthad not permittedSmt. PushpaDevi topart with possessionof the ground floor. In fact, it was also the understandingofFAO(OS)385/2014 & connected matter

Smt. PushpaDevi thatthereis no such order. It is her case thaton legal advise,thepossessionwas partedwith. No attemptwas made, at leastnot broughtto ournoticeto give/take back the possession of the ground floor, surely suggest thecontumaciousconduct and act, which is not bonafide. The judgment has noapplicability in the facts of this case.

45. Insofaras the judgmentin the case ofStateofBihar v. UshaDevi (supra)isconcerned,the same has no applicabilityto the facts of this case. More so, whenprejudicehas been caused to the plaintiffs(respondents1and 2) with the partingwith possessionofthe ground floor when partitionhas not been effectedbetweenthe legal heirs of Late SimlaDevi, Smt. PushpaDevi and the legal heirs of ShantiDevi.

46. In view ofour discussionabove, we are ofthe view that the appealsfiledaredevoidofany merit. The sameare dismissed. Timeto deliver/fortakingpossessionofthe entiregroundfloorofthe suit propertyby Caravanand Smt. PushpaDevi isextendedby eightweeks from today.

47. As the Learned Single Judge has observed that the matter of awardingpunishmentwill be dependanton the complianceofimpugnedorder, whichperiod,we have extendedby eight weeks, list beforethe learnedSingleJudge on May 15,2017 for compliance.

CM No. 14139/2014in FAO(QS^385/2014fforstay)CM No. 14143/2014in FAOfOS^386/2014fforstny)

Dismissed as infructuous.

MARCH 08, 2017/ak

•I&£>V. KAMESWARRAO,JINDIRABANERJEE,J