- (1.) IT is an admitted position that the respondent No.3 as arrayed in the amended cause title is not a necessary party in this matter. Thus, while allowing the application moved by the contesting respondents (IA No.7889/2012), the name of respondent No.3 is ordered to be deleted from the array of the parties. A note to that effect be put against her name. Service is complete and the contesting parties are represented by their respective counsel.
(2.) THOUGH this appeal stands admitted for final hearing but for the reasons and circumstances noticed hereafter, we have heard the learned counsel finally at this stage itself. The relevant background aspects of the matter are as follows: A civil suit for specific performance, as filed by the plaintiff Shri Mahendra Jain (since deceased and represented by his legal representatives) against his brother Shri Ashok Jain (he too since deceased and represented by his legal representatives) came to be decreed by the Trial Court on 22.11.1995. The defendants' first appeal, being S.B. Civil First Appeal No. 13/1996, against the decree so passed by the Trial Court came up for consideration before a learned Single Judge of this Court and was disposed of essentially in terms of the settlement between the parties on 28.07.2011. In the order dated 28.07.2011, the learned Single Judge specified all the major terms of settlement between the parties while disposing of the first appeal between the contestants who are closely related to each other. As per the order dated 28.07.2011, the respondents Nos.1 and 2 of this appeal, Smt. Hemlata W/o late Shri Mahendra Jain and Dheeraj Jain S/o late Shri Mahendra Jain were required to make payment of an amount of Rs.21 lacs within a period of 3 months from the date of order and the appellants of this appeal Smt. Vijay Laxmi W/o late Shri Ashok Jain and Manoj Jain S/o late Shri Ashok Jain were required to execute the sale deed in favour of the respondents above-named. It appears that the respondents informed the appellants of themselves being ready to make the requisite payment by way of demand drafts bearing Nos.538596, 538597 and 538598 dated 11.10.2011 for a sum of Rs.21 lacs and also sent a draft of the proposed sale deed within the time granted by the Court but then, in response to their propositions, an objection was raised by the present appellants about Smt. Kavita Jain, daughter of late Shri Mahendra Jain, who was also a party to the suit in question and so also in the appeal; and the respondents were called upon to furnish clarification regarding the position of said Smt. Kavita Jain. Some other suggestions were also made regarding mentioning of the facts about a pending suit in the sale deed. When the exchange of communications between the parties did not materialise into compliance of the order passed by the Court, the respondents Nos.1 and 2 of this appeal Smt. Hemlata and Dheeraj Jain filed the contempt petition (No. 1/2012) leading to this appeal. The contempt petition was considered by a learned Single Judge of this Court on 16.02.2012 and while the matter was deferred to 24.02.2012, it was ordered that in the meanwhile, the document may be registered in accordance with the orders passed by the Court and else, the contemnors would remain present before the Court on 24.02.2012. On 24.02.2012, the other learned Single Judge of this Court, who had, in fact, passed the original order dated 28.07.2011, took note of the order passed on 16.02.2012 and also took note of the fact that the requisite document was yet to be registered. The learned Single Judge ordered that if the document was not registered and the judgment dated 28.07.2011 as passed in Civil First Appeal No.13/1996 upon compromise was not complied with by 27.02.2012, the contemnors would remain present before the Court on 28.02.2012. Questioning the aforesaid orders dated 16.02.2012 and 24.02.2012, the appellants filed this appeal on 27.02.2012. This appeal was taken up for consideration on 28.02.2012 by a co- ordinate Bench and after motion-hearing, the appeal was considered to be the one under Section 19 of the Contempt of Courts Act and was admitted for final hearing; and by way of interim order, the operation of the aforesaid orders dated 16.02.2012 and 24.02.2012 was stayed. Today, after having heard the learned counsel for the parties essentially on the question of the interlocutory application as moved and so also on the stay application, when we expressed reservations that an order passed by the Court by way of settlement between the parties is not being complied with and honoured, the learned counsel Mr. Mehta strenuously submitted that the respondents were not clarifying the position regarding Smt. Kavita Jain D/o late Shri Mahendra Jain, who was not present before the Court on 28.07.2011; and the appellants have a lurking doubt and bona fide apprehension that after execution of the document, serious prejudice might be caused to them in the name of said Smt. Kavita Jain, who might take up another litigation either of her own or at the instance of the respondents. When we posed the questions in this regard, the learned counsel Mr. Chopra appearing for the respondents submitted that there is no basis for such a dispute in the name of Smt. Kavita Jain and in any case, to quell all the doubts and to meet with the objections suggested on the part of the appellants, the said Smt. Kavita Jain D/o late Shri Mahendra Jain has specifically sworn an affidavit on 16.03.2012 stating her total agreement with the settlement that has resulted in the decree of the Court. A copy of this affidavit has been placed on record with the additional affidavit of respondent No.2. The learned counsel Mr. Mehta submitted that copy of this affidavit has not been supplied to him whereupon the learned counsel Mr. Chopra has supplied the copy of the affidavit in the Court to Mr. Mehta. The learned counsel Mr. Chopra submits that the demand drafts in the sum of Rs.21 lacs were available with the respondents and lastly their validity was got extended on 31.05.2012. The learned counsel Mr. Chopra further submits that the respondents are ready and willing to make payment immediately. It is, however, pointed out by both the learned counsel that another application remains pending for consideration of the learned Single Judge as moved under Section 151 CPC for a minor correction as regards the measurement of the portions to be carved out in the property in question.
(3.) THOUGH we had our reservations on the objections as suggested on behalf of the appellants regarding the position of Smt. Kavita Jain, particularly looking to the extensive but specific terms and conditions of the order as passed by the learned Single Judge but it does not appear necessary to make any other comment in the matter for the reason that whatever had been the objections or apprehensions, the same are, obviously, taken care of with the specific affidavit of Smt. Kavita Jain, as referred hereinabove. The learned counsel Mr. Chopra assures that the original affidavit shall be filed before the learned Single Judge. So far as the other part of the matter regarding any amendment of the contents of the order or any alteration in the proposed draft of the deed are concerned, in our opinion, all such aspects should be submitted before the learned Single Judge for consideration. Looking to the overall circumstances and position obtaining, as taken note of hereinabove, we do not find any reason to continue with this appeal any further. However, as the process of execution and registration of the document is likely to take some time because other aspects of the matter are required to be dealt with by the learned Single Judge of this Court, therefore, as at present, we do not see any necessity of the contemnors remaining present before the Court. Nevertheless, it goes without saying that if they would fail to comply with the requirements of the final order to be passed by the learned Single Judge, the requisite orders could always be passed in the pending contempt petition. In the interest of justice, we also make it clear that for whatever time that has elapsed, none of the parties would be entitled to blame the other. To be more specific, it is made clear that the appellants herein shall not be entitled to claim any interest over the amount payable under the order in question until the date that shall now be fixed by the learned Single Judge for compliance of the final order. Thus, taking note of the submissions of the parties and with the observations foregoing, this special appeal is partly allowed only to the extent of waiver, at present, of the requirement of personal presence of the appellants on the given date before the learned Single Judge and modifying the observations in the impugned orders dated 16.02.2012 and 24.02.2012 to the extent and in the manner that the parties would be required to carry out compliance as per the order now to be passed by the learned Single Judge in accordance with law. The parties through their respective counsel shall stand at notice to appear before the learned Single Judge in S.B. Contempt Petition No.1/2012 on 24.09.2012. No order as to costs of this appeal. ;