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2004 DIGILAW 1060 (AP)

Om Sai Builders and Constructions, Secunderabad v. III Senior Civil Judge, City Civil Court, Secunderabad

2004-09-23

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS C. M. A is filed against the order, dated 20. 9. 2000, passed by theiiil Senior Civil Judge, City Civil court, Secunderabad, in I. A. S. R, No. 7623 of 2000 in LA. No. 1054 of 1997 in O. S. No. 314 of 1997. Through the order under appeal, the Trial Court ordered detention of the third appellant. herein, in civil prison, in exercise of its powers under Rule 2 (A) of Order 39 Civil Procedure Code (C. P. C ). ( 2 ) RESPONDENTS 3 to 6 and another person by name Smt. T. Aruna, constituted a partnership firm, the second respondent herein. They entered into a development agreement with the first appellant for construction of a multi-storied complex in premises bearing No. 12-1-505, Laxminagar, lalapet, Secunderabad. Disputes arose in the matter of working out the contract. The respondents 2 to 6, and the other partner filed O. S. No. 314 of 1997 against the appellants for the relief of (a) recovery of sum of Rs. 6,72,800/- and (b) perpetual injunction in respect of suit (B), (C), (D) and (E) schedule properties. They also filed la. No. 1054 of 1997 for temporary injunction in respect of six flats in suit (B), (C), (D) and (E) schedules. Through an order, dated 29. 8. 1997, the Trial Court granted an order of status quo. initially, up to 11. 9. 1997; thereafter, it was extended until further orders. ( 3 ) THE appellants filed written statement in the suit, and a counter-affidavit in LA. No. 1054 of 1997 (for short "ia" ). After hearing both the parties, the Trial court dismissed the LA on 2. 11. 1998. However, in the same order, it observed that the Deponent of the counter-affidavit, the third appellant herein, has stated that certain construction work was in progress even during subsistence of the order of status quo, and that the same constitutes violation of orders of status quo. On that basis, it directed detention of the third appellant in civil prison for a period of two months. ( 4 ) AGGRIEVED by the order, dated 2. 11. 1998, the appellants filed A. A. O. No. 2948 of 1998 in this Court. The appeal was allowed through an order, dated 6. 3. On that basis, it directed detention of the third appellant in civil prison for a period of two months. ( 4 ) AGGRIEVED by the order, dated 2. 11. 1998, the appellants filed A. A. O. No. 2948 of 1998 in this Court. The appeal was allowed through an order, dated 6. 3. 2000, on the sole ground that the Trial court did not issue notices to the appellants, before passing the order, under Rule 2 (A) of Order 39 C. P. C. The Trial Court was directed to pass fresh orders, after issuing notices. ( 5 ) AFTER remand, the Trial Court issued notices to the appellants. A counter-affidavit was filed raising several objections, and denying the allegations as to the violation of order of status quo. The third respondent herein was examined as PW-1, and the third appellant was examined as rw-1. After discussing the evidence on record, and on consideration of contentions of the parties, the Trial Court once again directed detention of the third appellant in civil prison. ( 6 ) SRI T. Suryakaran Reddy, learned counsel for the appellants submits that the very initiation of the proceedings-suo motu by the Court was uncalled for, and impermissible. He submits that the respondents 2 to 6 themselves did not complain of any infraction of orders of status quo, and in that view of the matter, it was not at all open or competent for the trial Court, to have initiated, or proceeded with the matter. He submits that the suit schedule property is different from petition schedule property; in the LA. He contends that, the suit a schedule is the entire complex, suit b , c , D and E schedules are referable to individual flats; whereas the schedule in LA was only 6 flats comprised in suit b , c , D and e schedule. He submits that the order of status quo related only to the six flats mentioned in schedule to the LA, whereas the statement in the counter-affidavit was in relation to the entire complex in suit schedule. He submits that PW-1 himself was not sure as to the scope of LA. and was clear that he was not in possession of the flats, and in that view of the matter, the Trial Court did not have any basis to pass the order under appeal. He submits that PW-1 himself was not sure as to the scope of LA. and was clear that he was not in possession of the flats, and in that view of the matter, the Trial Court did not have any basis to pass the order under appeal. He takes exception to the cause title, as adopted by the Trial Court in the proceedings and submits that despite a specific objection being taken in the counter-affidavit, the Court has chosen to figure itself as a party. ( 7 ) SRI M V. Bharathi, learned Counsel for the Respondents 2 to 6, on the other hand, submits that the admission on the part of the appellants was sufficient to enable the Court to initiate contempt proceedings, and the object was only to ensure that orders passed by the Court are respected. He submits that in spite of the orders of status quo, the appellants proceeded with the construction, and that no exception can be taken to the order under appeal. ( 8 ) BEFORE proceeding to discuss the matter on merits, it needs to be observed that the Trial Court has chosen to figure itself as a petitioner in I. A. S. R. No. 7623 of 2000, and the appellants herein are shown as respondents. The plaintiffs in the suit and the petitioners in LA. No. 1054 of 1997 did not figure anywhere therein. The cause title in I. A. S. R. No. 7623 of 2000 reads as under: i. A. S. R. No. 7623of2000: between: - iiird Senior Civil Judge, city Civil Court, Secunderabad and. . . . Petitioner (1) M/s. Om Sai Builders and Constructions (2) Mr. P. R. Srivatsava (3) Mr. V. Savarappa (Appellants in A. A. O. No. 2948/98 and respondents in LA. 1054/97 ). . . Respondents/defendants ( 9 ) IT is not known whether this cause title was conceived of by the ministerial staff of the Court, or by the Presiding officer himself, of the Trial Court. Whatever may have been the justification, in coining that cause title in the initial stage, at least, when the appellants have taken exception to it in their counter-affidavit to the present proceedings, the Trial Court ought to have taken necessary step. The same cause title is continued even in the certified copy. A court can never figure as a party, that too,, in the proceedings before itself. The same cause title is continued even in the certified copy. A court can never figure as a party, that too,, in the proceedings before itself. The Trial court appears to have been carried away more by emotion, than by discipline or dispassionate consideration of the matter. Such a course is opposed to the very concept of adjudication. ( 10 ) REVERTING to the facts of the case, it may be noticed that an order of status quo, in respect of six flats mentioned in the schedule to LA was passed on 29. 8. 1997, initially up to 11. 9. 1997, and thereafter, it was extended until further orders. On hearing both the parties, the Trial Court dismissed the LA on 2. 11. 1998. By that time, respondents 2 to 6 did not complain to the trial Court that the appellants have violated the orders of status quo. ( 11 ) IN the counter-affidavit filed in LA, the appellants have narrated the entire background of their contract with the respondents 2 to 6; various developments that have taken place ever since the emergence of the contract between them. At some places, it has been stated that the respondents 2 to 6 are not in possession of any portion and that the work in "suit schedule" property is in progress. While dismissing the IA No. 1054 of 1997, the trial Court took this statement as violation of order of status quo, little realizing that the suit schedule was different from petition schedule. As o bserved earlier, suit a schedule comprises of the entire complex consisting of 21 flats; whereas the petition schedule comprised of only six flats, spread over various floors. The appellants never stated in their counter-affidavit that they carried on the work in six flats mentioned in the schedule to LA. In its anxiety or emotion, the Trial Court has chosen to straightaway direct detention of the third appellant in civil prison, without even calling for an explanation. The order was set aside by this Court in A. A. O. No. 2948 of 1998, and the matter was remanded for fresh enquiry, after giving opportunity to both the parties, and after hearing them. ( 12 ) AFTER remand, on receipt of notice, the appellants have categorically stated in their counter- affidavit that they never carried on the work in the six flats, which are the subject-matter of the LA. ( 12 ) AFTER remand, on receipt of notice, the appellants have categorically stated in their counter- affidavit that they never carried on the work in the six flats, which are the subject-matter of the LA. PW-1 was examined on behalf of the plaintiffs/respondents 2 to 6 herein. It is rather interesting to note the version put forward by him. In his chief-examination, he did not say that/the appellants have undertaken any work in the six flats, the subject-matter of LA. In the cross-examination, he stated as under: "we requested the Court in the said application to direct the respondent to complete the construction of the six flats. They did not complete the construction of the said six flats. The status quo order was obtained in respect of carrying out construction of the six flats. We did not carry out any construction in the said flats. I did not read the contents of the status quo dated 29. 8. 1997. The intention with which the order was taken was not completed. We are in possession of three flats out of 6 flats. I cannot give the numbers of the said flats. (The witness did not give the names ). The respondents did not carry out construction in the three flats, which are in our possession". ( 13 ) THE deposition of PW-1 was sufficient for the Trial Court to realize that the impression gathered by it was, without basis. Further, the report of the Commissioner appointed by the Trial Court, clearly disclosed that no work was carried out in six flats referred to above. Instead of going by the evidence on record, the Trial court has adopted a strange logic; both as regards the maintainability of the proceedings, as well as in recording findings, on merits. Further, the report of the Commissioner appointed by the Trial Court, clearly disclosed that no work was carried out in six flats referred to above. Instead of going by the evidence on record, the Trial court has adopted a strange logic; both as regards the maintainability of the proceedings, as well as in recording findings, on merits. ( 14 ) BEFORE the Trial Court, reliance was placed by the appellants on a judgment rendered by Nagpur High Court in District judge, Chhindwara v. Basori Lal and another, AIR 1940 Nag 203, in support of their contention that the Trial Court cannot initiate suo motu action against the person guilty of contempt under Order 39, Rule 2 c. P. C. The same was sought to be overcome by the Trial Court, with the following observation: "as against this, there is a decision of our own High Court reported in M. Amritlal v. P. Srinivas Rao, AIR 1967 A. P at Page 48 a reading of the decision between the lines would indicate that the Court is empowered to take action against contemnor, but it is not explicit in the above decision". The Nagpur High Court in the judgment referred to above specifically dealt with the question as to whether it is open to a court to initiate contempt proceedings by itself. After referring to the corresponding provisions of C. P. C. , as it stood then, and a judgment of the Madras High Court it held as under: ". . . . Nor, on the other hand, could Order 39, rule 2 (3), Civil P. C. , be made applicable even by resorting to Section 141, Civil P. C. , unless any party to the proceeding had invoked the disciplinary jurisdiction of the District judge. As pointed out in 26 Mad 494 (F) the powers conferred by Section 493, civil P. C:, 1882, (corresponding to Order 39, rule 2) are exercisable only when the court is set in motion by a party who is aggrieved. It was made clear in that case that the use of the word "disobedience" in that section would not enable the Court to treat a breach of the terms of an injunction as an offence. . . . It was made clear in that case that the use of the word "disobedience" in that section would not enable the Court to treat a breach of the terms of an injunction as an offence. . . . " ( 15 ) THE judgment of this Court in amritlal v. Srinivas Rao, AIR 1967 AP 48 , relates to a case where the proceedings were initiated by one of the parties. The judgment of the Nagpur High Court District judge, Chhindwara v. Basori Lal and another, (supra) was not referred to therein, and it did not consider the question as to whether proceedings under Order 39, rule 2 C. P. C. , can be initiated suo motu by a Court. Hence, this Court does not find any basis for the view taken by the Trial court, that it was permissible to initiate proceedings suo motu. It was absolutely impermissible for it to read anything in between the lines of a precedent cited before it. It is only the Court of record, such as, the Supreme Court under Article 129 and the High Court under Article 215 of the Constitution of India, that are conferred with powers tg-initiate contempt proceedings suo motu. ( 16 ) THE Trial Court has chosen to deal with the contention in a reply affidavit, filed by Respondents 2 to 6 herein, as an application under Order 39, R. 2a of c. P. C. Such an approach in proceedings that are to result in imprisonment of citizens, cannot be countenanced. The Trial Court appears to have been carried away more by emotion, than by reason. Its approach runs counter to the principles governing contempt proceedings, which are treated as quasi-criminal in nature. For the foregoing reasons, the order under appeal is set aside and the appeal is allowed. ( 17 ) THE suit is of the year 1997 and it is said to be still pending. Hence, the Trial court is directed to expedite disposal of the suit, as expenditiously as possible, not later than six months from the date of receipt of this Order. ( 18 ) BUT for the fact that the proceedings were initiated suo motu, by the court, the appellants were entitled to be awarded costs. Since proceedings are initiated suo motu by the Trial Court, there shall be no order as to costs.