A. Guruprasad v. T. Neelakandan — 1995 DIGILAW 936 (MAD)

Judgment :- The applicant in his affidavit contends as follows : The applicant has filed the suit for permanent injunction restraining the defendant from using the name "First/1st" for conducting any business relating to the computer and pass-off their business. In O.A. No. 151/1995 interim injunction was prayed for. On 20th February, 1995, this Court has granted interim injunction, restraining the respondent till 28-2-1995 from using the trade name "First Computers/1st Computers" or the expression "First/1st" in Relation to its Computer business. On 28-2-1995, after enquiry, this Court has reserved orders. On 14-3-1995, this Court has passed orders, making the interim injunction absolute and dismissing the application for vacating the injunction. On 22-3-1995, the defendant moved O.S. Appeal No. 74/1995 before the Division Bench of this Court and prayed for stay of the operation of the Order of Interim injunction. The Stay was not granted. In spite of injunction granted from 20-5-1995, the respondent has been causing publication of his earlier advertisement with the only change of removing the expression' "Ist Computer" and continues to retain "Ist C" in respect of Computer business. The Conduct of the respondent amounts to wilful and deliberate disobedience of the Order of Court punishable under the Contempt of Courts Act. Hence the application 2. The respondent filed a counter contending as follows :- The respondent has filed. O.S. Appeal No. 74/1995 against the order of Interim Injunction dated 14th March, 1995, and on 10-4-1995, the Division Bench of this Court was pleased to vacate the interim injunction granted in A. No. l51/1995. The applicant filed a Special Leave Petition in the Supreme Court and it was dismissed. When stay was moved in CMP No. 4716/1995 in OSA No. 74/1995, the Division Bench has passed orders as follows :- "There will be stay of order of injunction in so far as it prevents the applicant from using the expression First/Ist with regard to words other than the word "Computers". In other words the applicant shall not use the expression, "First Computers" till the disposal of the application. He can use the other expressions which he is using in connection with computer educational activities." * The respondent was under the bona fide impression that the use of the expression "Ist C" in relation to computer educational activities was not in violation of the order of injunction granted by this Court in C.A. No. 151/1995. He can use the other expressions which he is using in connection with computer educational activities." * The respondent was under the bona fide impression that the use of the expression "Ist C" in relation to computer educational activities was not in violation of the order of injunction granted by this Court in C.A. No. 151/1995. The respondent bona fide thought that the use of the 'Ist C' logo is not covered by the interim order. The respondent had no intention to violate the order of Interim Injunction. The respondent is a law abiding citizen, and he had no intention to violate the order passed by this Court. The respondent tenders unconditional apology. The application may be dismissed 3. The learned counsel appearing for the applicant would contend that an interim injunction order has been granted in favour of the applicant restraining the respondent from using the trade name "First Computers/Ist Computers" and for using the name First/Ist for conducting any business relating to the Computers, and pass off their business and this interim Order has been made absolute by this Court on 14-3-1995, and the respondent who was aware of the same, has caused publications of their advertisement in "The Hindu" as well as in "The Indian Express" on 9th March, 1995 during the pendency of the Interim Injunction and thereby intentionally committed contempt of Court by violating the order and therefore, they should be punished. The learned counsel appearing for the respondent would contend that this Application under the Contempt of Courts Act to punish the respondent alleging that the respondents has violated the order of this Court and thereby committed contempt is misconceived and yet the respondent is tendering an unconditional apology and the same may be accepted 4. Certain dates are relevant. Ad-interim injunction was granted on 20th February, 1995 by this Court. The respondent has filed a counter to O.A. No. 151/1995 and an application for vacating the injunction in A. No. 1147/1995 on the next day viz., 21-2-1995. After enquiry, in these two applications, orders have been passed confirming the order passed earlier in O.A. No. 151/1995 and dismissing the application in A. No. 1147/1995 on 14-3-1995. The learned counsel appearing for the respondent who has brought these dates for the notice of this Court, would rely upon a decision reported in State of J and K. v. Mohd. The learned counsel appearing for the respondent who has brought these dates for the notice of this Court, would rely upon a decision reported in State of J and K. v. Mohd. Yaqoob Khan 1992 4 SCC(ases) 167 wherein the Apex Court has held that so long as the matter was not finally disposed of, the further proceedings in the contempt case was misconceived and no orders therein should have been passed. The learned counsel appearing for the respondent has referred to the decision of a single Judge of this Court in Sub Application No. 9/1995 in Contempt Application No. 126/1994 in which the learned Judge has referred to the decision of the Supreme Court and has observed that the Supreme Court has held in the above decision, that whenever there is a contempt petition with reference to an ex parte order of interim injunction which is sought to be vacated, the hearing of the contempt petition should not commence until the disposal of the application for interim injunction and that the reason is that if the ex-parte order of injunction is vacated, finally the process of the contempt petition in the mean time will create an irreparable hardship to the respondent. I am entirely in agreement with the above observations made by the Hon'ble Mr. Justice Thanickachalam in the above order 5. In the present case, the enquiry in the Contempt Application has not commenced till the disposal of the Application for interim injunction. The application itself has been filed only on 29th March, 1995, after an interim order has been passed in C.M.P. Nos. 4716 and 4717/1995, in O.S. Appeal No. 74/1995 on 22-3-1995 and after an advertisement of the respondent in "The Hindu" and "The Indian Express" dated 25-3-1995. Therefore, it cannot be stated that the Contempt, Application initiated before final orders have been passed and therefore, the enquiry cannot be held in that application. The enquiry can be held in this contempt application since it has been initiated only after the final orders passed in O.A. No. 15/1995 by this Court 6. Now, let us see whether the respondent has actually committed Contempt of Court and liable to be punished. Subsequent to the final orders have been passed, the respondent has preferred O.S. Appeal No. 74/1995, and an application for stay was moved by the applicant before the Division Bench. Now, let us see whether the respondent has actually committed Contempt of Court and liable to be punished. Subsequent to the final orders have been passed, the respondent has preferred O.S. Appeal No. 74/1995, and an application for stay was moved by the applicant before the Division Bench. The Division Bench has passed an order on 22-3-1995, as follows :- "There will be stay of order of injunction in so far as it prevents the applicant from using the expressions First/Ist with regard to words other than the word "Computers". In other words the applicant shall not use the expression "First Computers" till the disposal of the applications. He can use the other expressions which he is using in connection with computer educational activities." * The respondent herein has contended in their counter that in view of the above order passed by the Division Bench, the respondent was under the bona fide impression that the use of the expression "Ist C" in relation to Computer education activities was not in violation of the order of Injunction granted by this Court in O.A. No. 151/1995. The learned counsel appearing for the respondent, has fairly conceded that the impression said to have been created in the mind of the respondent even though is a bona fide one, is not an intelligent one and therefore, the respondent is tendering unconditional apology and the same may be accepted. According to the learned counsel, there is no violation of the order of the Division Bench, the appeal also has been disposed of finally dismissing O.A. No. 151/1995, and the applicant herein has preferred a Special Leave Petition to the Supreme Court and it was also dismissed. I have gone through the judgment of the Division Bench dated 10-4-1995, carefully. The Division Bench was pleased to hold that prima facie, case was not made out and balance of convenience is also not in favour of the applicant and the action of the defendant cannot be said to have been intended to lead to deception and dismissed the injunction application. It has become final in view of the dismissal of the Special Leave Petition. It is only in this background, we have to decide whether the applicant has committed contempt 7. It has become final in view of the dismissal of the Special Leave Petition. It is only in this background, we have to decide whether the applicant has committed contempt 7. Acts which are calculated to undermine the authority of the Court and disturb the confidence of the citizen in the unquestioned effectiveness of its orders will have to be considered as Contempt. In the present case, the publication of the advertisement by the respondent during the pendency of the interim injunction, cannot he said to undermine the authorities of this Court, and disturb the confidence of the citizen, in the unquestioned effectiveness of the said order since it has been not set aside by the Division Bench of this Court. It has been held by the Supreme Court in the decision reported in U.P. Rashtriya (Hindi) will Adhikari Parishad v. The State of U.P., 1995 (ii) MPLJ 93, as follows :- "The jurisprudence governing Court functioning in this country makes a judgment, delivered by a judge or a Bench comprising of more than one judges, the judgment of the Court and not of the person holding the judicial office. The Judgment holds good till it is set aside or its correctness is doubted by the higher Court. Once the correctness of judgment is doubted by the Higher Court, the judgment as no longer remains the law of the land and is treated as non est. Judicial property demands that the judge/judges whose judgment has been rendered non-est by the Higher Court should not bring their personal ego into the matter and should how before the law laid down by the Higher Court." * In our case, the order passed by this Court in O.A. No. 151/1995, has been set aside by a Division Bench of this Court and it has become final in view of the dismissal of the Special Leave Petition. The order passed by this Court in O.A. No. 151/1995, is therefore, to be treated as non-est. Therefore, the charge that the respondent has committed contempt of Court by violating the order which has become non-est cannot be accepted. Therefore I am of opinion that it is not fair on the part of this Court to find the respondent as having committed contempt of Court 8. Therefore, the charge that the respondent has committed contempt of Court by violating the order which has become non-est cannot be accepted. Therefore I am of opinion that it is not fair on the part of this Court to find the respondent as having committed contempt of Court 8. In the Text Book on "Contempt of Court" by V. G. Ramchandran, (Fifth Edition) at page 354, the learned Author has quoted the decision perported in Prafulla Ranjan v. Mahindra Chandra, 71 Cal WN 771, and it is as follows :- "In Contempt of Court cases the Court should always proceed with the thought that law should he just jealously and carefully applied and the power is to be cautiously exercised with the greatest reluctance and anxiety, because of the betterment and welfare of the State and because the privileges of the judges are involved. The Court should not be anxious of the vulgar desire elevate itself grasping after a pre-eminence by using its legal thumbscrew injudiciously and punishing for this mysterious and undefinable offence, which is not only easy to commit but also "Prompt and condemn punishment". The Court should not be over the hypersensitive, it should not be exercise this jurisdiction, upon more question of propriety or on any exaggerated notion of the dignity of the Judges." * When we approach the case on hand, in the light of the above ruling, I am of opinion that this Court should not be anxious to punish the respondent on a complaint that he has violated the interim order of this Court which has been set aside by the Appellate Court at a later point of time. It is needless for me to observe that violation of an injunction order by a Civil Court through a Civil Contempt can be dealt with ordinarily under Order 39, Rules 2 and 3 of the Code of Civil Procedure and not necessarily under the Contempt of Courts Act. It is in this background, we have to accept the reasoning given by the Hon'ble Mr. Justice Thanikkachalam in the order passed by him in Sub Application No. 9/1995, as to why the Supreme Court has held in the decision reported in State of J. & amp; K. V. Mohammed Ayubkhan, that the hearing of the Contempt Petition should not commence until the disposal of the application for interim injunction. Justice Thanikkachalam in the order passed by him in Sub Application No. 9/1995, as to why the Supreme Court has held in the decision reported in State of J. & amp; K. V. Mohammed Ayubkhan, that the hearing of the Contempt Petition should not commence until the disposal of the application for interim injunction. The same reasoning applies in cases where the application for injunction is disposed of and where the injunction granted is Vacated by the appellate Court since then also the finding of a person of having committed contempt will create irreparable hardship. Contempt proceedings are mainly to uphold the dignity and decorum of the Court. When the order passed by the trial Court granting injunction, is subsequently set aside by the appellate Court, it cannot be stated that to uphold the dignity and decorum of the trial Court, contempt proceedings are to be taken and the contemnor is to be punished since it would amount to punish a person of having committed a violation of an order of Court which does not get the approval by an appellate Court. It is in this background, the decision reported in Prafulla Ranjan v. Manindra Chandra, 71 Cal WN 771, is to be considered which lays down that the Court should not be anxious to elevate itself for grouping after a pre-eminence by using its legal thumbscrew injudiciously. I am of opinion that publication of the advertisement by the respondent during the pendency of the interim injunction order has to be considered on a trifling act which cannot be magnified into contempt since it would he below the dignity of this Court to take notice of the Conduct of the respondent in publishing it which has become insignificant in view of the dismissal of the injunction application by the appellate Court which has held that the Applicant has neither prima facie "cases nor balance of convenience to get an order of injunction". In that view, I am of opinion that the respondent cannot be found guilty of Contempt and punished. At any rate, he has also tendered an unconditional apology and it can be accepted by this Court since, the act committed by the respondent has been held to be a trifling act by this Court 9. In that view, I am of opinion that the respondent cannot be found guilty of Contempt and punished. At any rate, he has also tendered an unconditional apology and it can be accepted by this Court since, the act committed by the respondent has been held to be a trifling act by this Court 9. In the result, the unconditional apology tendered by the respondent is accepted and the application is dismissed and the contemner is discharged Witness the Hon'ble Thiru Kundarikoti Annadanayya Swami, Chief Justice as Madras, aforesaid, this the 20th day of November, 1995.