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2008 DIGILAW 1280 (MAD)

G. Subbaraj & Others v. S. Ramachandran

2008-04-16

M.JAICHANDREN

body2008
Judgment :- Heard Mr. A. Sivaji, the learned counsel appearing on behalf of the petitioners and Mr. M.V. Venkataseshan, the learned counsel appearing on behalf of the respondents. 2. This contempt petition has been filed praying that this Court may be pleased to punish the respondent for violating and disobeying the order passed by this Court, on 110. 1997, made in C.M.P.Nos.13767 and 13768 of 1997 in A.S.No.788 of 1997. 3. In the affidavit filed by the first petitioner, for himself and on behalf of the other petitioners, it has been stated that the petitioners had filed an appeal before this Court in A.S.No.788 of 1997, against the judgment and decree, in I.A.No.117 of 1995 in O.S.No.1001 of 1990, on the file of the 1st Additional Sub Court, Madurai. 4. The petitioners in the present contempt petition are the appellants in the first appeal in A.S.No.788 of 1997. The petitioners had filed a civil miscellaneous petition in C.M.P.Nos.13767 and 13768 of 1997, praying for an order of stay and for an order of interim injunction against the respondent restraining him from encumbering or alienating the properties, which were the subject matter of the suit in O.S.No.1001 of 1990. The respondent had filed a counter affidavit in the said civil miscellaneous petitions stating that he had no intention to alienate the properties, which were the subject matter in the suit except those properties which had already been alienated. The said undertaking was recorded by this Court and final orders were passed in the civil miscellaneous petitions, on 110. 1997. 5. It has been further stated that during the Month of February, 2003, the first petitioner had learnt that the respondent had sold the sheds, machinery and other items available in the suit property. The value of the sold items would be more than Rs.22 lakhs. Thus, the respondent had committed contempt of Court by violating the orders passed by this Court, on 110. 1997. 6. A counter affidavit has been filed on behalf of the respondent tendering his unconditional apology, if it was found by this Court that the respondent had committed contempt of Court by violating the order, dated 110. 1997, by some act or omission. 7. It has also been submitted that the respondent had not disobeyed the order passed by this Court, on 110. 1997. 1997, by some act or omission. 7. It has also been submitted that the respondent had not disobeyed the order passed by this Court, on 110. 1997. It has also been pointed out that the original contempt petition had been filed, with regard to the movable properties, as mentioned in Para-4 of the affidavit filed in support of the contempt petition. The petitioners have filed the contempt petition only, on 18.03.2003, and the said petition has been moved only on 8th October, 2004. Thus, the contempt petition is out of time. It has also been stated that there is no dispute about the fact that the suit filed before the trial Court is for partition and the compromise memo filed with regard to the suit properties had been challenged by the appellants. Further, it has been stated that the first Appeal in A.S.No.788 of 1997, had been disposed of by this Court, by its order, dated 01.08.2003, holding as follows: "12. Ultimately, the counsel for the first respondent suggested the following courses which could be adopted: (i) A decree can be passed in terms of I.A.No.80 of 1995; or (ii) The matter may be remanded before the District Court to got into the question as to whether I.A.No.117 of 1995 was filed and a decree was passed in terms thereof. 13. We are not inclined to accept these suggestions since admittedly the parties have not given effect to the compromise memo filed in I.A.No.80 of 1995 and it is already dismissed. We have found that it is highly doubtful whether the second compromise was filed and I.a/No.117 of 1995 was registered and taken on file and the decree passed in terms thereof. Admittedly, I.A.No.117 of 1995 is missing and the officers who had handled it have admitted the loss. To remand the matter to the District Court for going into the question as to the whether there was a compromise or not will only lead to multiplicity of proceedings in the light of the divergent stand taken by the parties and a further appeal and revision being filed, without any finality given to the suit filed in the year 1990. We have held that the judgment of the Court below is not in accordance with Order 23, Rule 3, C.P.C. and that there was no compromise memo available to pass a decree in terms thereof and the procedure adopted by the trial Court, therefore, cannot be accepted as a valid one. 14. In the above circumstances, we set aside the judgment and decree of the Court below and remand the suit for a fresh trial. The trial Court shall take up the matter and frame an issue on the question of settlement between the parties as one of the issues and dispose of the suit expeditiously, at any rate within a period of six months from the date of receipt of the papers. The appeal is accordingly allowed. However, there will be no order as to costs. Consequently, C.M.P.Nos.13767 and 13768 of 1997 and 63662 of 2003 are closed." 8. Subsequently, the Supreme court had passed an order on 011. 2006, in Civil Appeal No.4736 of 2006, stating as follows: "We are of the opinion that the High Court was not correct in setting aside the consent decree passed by the trial Judge and remitting the suit for a fresh trial and furthermore directing the trial Court to frame an issue on the question of settlement between the parties as one of the issues involved in the suit. Such a course of action was, in our opinion, impermissible inasmuch as in the event the consent decree is found to be valid, the question of passing another decree on contest would not arise. We are therefore, of the opinion that irrespective of the fact whether the compromise petition purported to have been filed by the parties is on record or not, the Court should go into the correctness or otherwise of the allegations made by the respondents herein and the responses thereto by the appellants herein upon allowing the parties to adduce their respective evidences and in the event it is found that the compromise petition in fact had been filed by the parties; determination of the question of validity thereof would arise. In view of the fact that the matter is pending consideration for a long time, we would request the trial Judge to consider the desirability of disposing of the matter as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order. We make it clear that we have not entered into the merits of the matter." 9. In the affidavit filed by the respondent, it has been stated that though the agreement of sale was entered into, on 15.03.2003, in respect of the suit property it was sold only, on 06.05.2004, after the disposal of the appeal in A.S.No.788 of 1997, in the month of August 2003. 10. The learned counsel appearing on behalf of the petitioners had submitted that once an undertaking is given to the Court, it is binding on the respondent and any deviation or violation of the undertaking would certainly amount to contempt of Court as held by the Supreme Court in Rama Narang v. Ramesh Narang and another (AIR 2007 Supreme Court 2029). 11. Relying on the decision made in T. Deen Dayal V. High Court of Andhra Pradesh, ( AIR 1997 SC 3451 ) the learned counsel appearing for the petitioners had pointed out that it is not open to the respondent to contend that the contempt petition is barred by limitation, under Section 20 of the Contempt of Courts Act, 1971. It was further stated that the High Court while exercising the power to punish the respondent, for committing contempt of Court, has jurisdiction under Article 215 of the Constitution of India, as a Court of record. Section 20 of the Contempt of Courts Act, merely provides for limitation to initiate contempt proceedings and for the conclusion of the said proceedings. Once the contempt petition is filed within the time prescribed under the relevant provisions of the Act, it cannot be said that it is out of time, even if the said petition is taken up for hearing after a long delay. 12. The learned counsel appearing for the petitioners had also relied on the decision of the Supreme Court in Om Prakash Jaiswal Vs. 12. The learned counsel appearing for the petitioners had also relied on the decision of the Supreme Court in Om Prakash Jaiswal Vs. D.K. Mittal and Another ( 2000(3) SCC 171 ), wherein it was held that Section 5 of the Limitation Act will not be applicable for initiating contempt proceedings and Section 20 of the Contempt of Courts Act, 1971, strictly speaking, does not provide limitation in the sense in which the term is understood in the limitation Act. It was also held that the action for contempt can be condoned only on a genuine apology tendered by the contemner. 13. Per contra, the learned counsel appearing for the respondent had relied on the following decisions: 13.1 In Dineshbhai A. Parikh V. Kripalu Co-operative Housing Society, Nagarvel, Ahmedabad and others (AIR 1980 Gujarat 194), it has been held as follows: "It is the duty of the person who institutes an action to satisfy the Court that it is within time. S.20 in terms places an absolute fetter on the power of the Court to initiate proceedings for contempt after the expiry of a period of one year from the day on which contempt is alleged to have been committed. It will not be correct to say that once contempt is committed, unless it is purged, it continues to be committed every day and every moment and that, therefore, an action can be taken against the contemner at any time. If such contention is accepted, S.20 would be rendered redundant because every act of contempt will ordinarily mean recurring contempt from day to day and from moment to moment until it is purged by an order of the Court.... No contempt proceedings can be initiated by a Court after the expiry of a period of one year from the date of the alleged commission of contempt, Action under Contempt of Courts Act, 1971 can be taken if the court has applied its mind and initiated proceedings by passing some order within a period of one year from the date of the alleged act of contempt. If an application for taking action under the Contempt of Courts Act, 1971 is filed within a period of one year from the date of alleged commission of contempt, but the Court has passed no order thereon before the expiry of one year from the said date, such application automatically fails and the jurisdiction of the Court is barred because the Court did not apply its mind to the complaint or information within a period of one year. It is this application of mind by the Court which amounts to initiation of proceedings within the meaning of S.20." 13.2 In Om Prakash Jaiswal V. D.K. Mittal and another (AIR 2000 Supreme Court 1136), it has been held as follows: "In order to appreciate the exact connotation of the expression `initiation any proceedings for contempt it is necessary to notice several situations or stage which my arise before the Court dealing with contempt proceedings. These are: (i)(a) a private party may file or present an application or petition for initiating any proceedings for civil contempt: (b) the Court may receive a motion or reference from the Advocate General or with his consent in writing from any other person or a specified law Officer or a Court subordinate to High Court; ii (a) the Court may in routine issue notice to the person sought to be proceded against; or (b) the Court may issue notice to the respondent calling upon him to show cause why the proceedings for contempt be not initiated; (iii) the Court may issue notice to the person sought to be proceeded against calling upon to show cause why he be not punished for contempt. In the cases contemplated by (i) or (ii) it cannot be said that any proceedings for contempt have been initiated. Filing of an application or petition for initiating proceedings for contempt or a mere receipt of such reference by the Court does not amount to initiation of the proceedings by Court. On receiving any such document it is usual with the Courts to commence some proceedings by employing an expression such as `admit, `rule, `issue notice or issue notice to show cause why proceedings for contempt be not initiated. On receiving any such document it is usual with the Courts to commence some proceedings by employing an expression such as `admit, `rule, `issue notice or issue notice to show cause why proceedings for contempt be not initiated. In all such cases the notice is issued either in routine or because the Court has not yet felt satisfied that a case for initiating any proceedings for contempt has been made out and therefore the Court calls upon the opposite party to admit or deny the allegations made or to collect more facts so as to satisfy itself if a case for initiating the proceedings for contempt was made out, such a notice is certainly anterior to initiation. The tenor of the notice is itself suggestive of the fact that inspite of having applied its mind to the allegations and the material placed before it the Court was not satisfied of the need for initiating proceedings for contempt; it was still desirous of ascertaining facts or collecting further material whereon to formulate such opinion. It is only when the Court has found an opinion that a prima facie case for initiating proceedings for contempt is made out and that the respondents or the alleged contemners should be called upon to show cause why they should not be punished then the Court can be said to have initiated proceedings for contempt. It is the result of a conscious application of the mind of the Court to the facts and the material before it. Such initiation of proceedings for contempt based on application of mind by the Court to the facts of the case and the material before it must take place within a period of one year from the date on which the contempt is alleged to have been committed failing which the jurisdiction to initiate any proceedings for contempt is lost. The heading of Section 20 is `limitation for actions for contempt. Strictly speaking, this Section does not provide limitation in the sense in which the term is understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the Court to initiate any proceedings for contempt. The jurisdiction to punish for contempt is summary but the consequences are serious. Strictly speaking, this Section does not provide limitation in the sense in which the term is understood in the Limitation Act. Section 5 of the Limitation Act also does not, therefore, apply. Section 20 strikes at the jurisdiction of the Court to initiate any proceedings for contempt. The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. Contempt generally and criminal contempt certainly is a matter between the Court and the alleged Contemner. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of. It is not personal glorification of a Judge in his office but an anxiety to maintain the efficacy of justice administration system effectively which dictates the conscience of a Judge to move or not to move in contempt jurisdiction. Often an apology is accepted and the felony condoned if the Judge feels convinced of the genuineness of the apology and the prestige of the Court having been restored. Source of initiation of contempt proceedings maybe suo motu, on a Reference being made by the Advocate General or any other person with the consent in writing of the Advocate General or on Reference made by a Subordinate Court in case of criminal contempt. A private party or a litigant may also invite the attention of the Court to such facts as may persuade the Court in initiating proceedings for contempt. However, such person filing an application or petition before the Court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the Court. It is thereafter for the Court to act on such information or not to act though the private party or litigant moving the Court may at the discretion of the Court continue to render its assistance during the course of proceedings. His duty ends with the facts being brought to the notice of the Court. It is thereafter for the Court to act on such information or not to act though the private party or litigant moving the Court may at the discretion of the Court continue to render its assistance during the course of proceedings. That is why it has been held that an information does not have a right of filing appeal under Section 19 of the Act against an order refusing to initiate the contempt proceedings or disposing the application or petition filed for initiating such proceedings. He cannot be called an aggrieved party." 14. In view of the contentions raised on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioners have not shown sufficient cause or reason to punish the respondent for contempt of Court. It is seen that even though the respondent had admitted that an agreement had been signed, on 15.03.2003, for sale of the property forming part of the suit schedule property, the actual sale had taken place only, on 06.05.2004, after the dismissal of the appeal in A.S.No.788 of 1997, on 01.08.2003. Further, the respondent had tendered an unconditional apology for any act or omission of the respondent which may amount to contempt of Court. The contempt petition had been filed based on the order passed by this Court, on 110. 1997, in C.M.P.Nos.13767 and 13768 of 1997, relating to movable properties. Whereas the sale agreement, dated 15.03.2003, relates to an immovable property forming the subject matter of the suit in O.S.No.1001 of 1990. Further, the petitioners have not shown that the respondent had committed contempt by willfully disobeying the order passed by this Court, on 110. 1997. Subsequent to the order passed by this Court in the civil miscellaneous petitions, final orders had been passed in A.S.No.788 of 1997, on 01.08.2003. Thereafter, the matter had been dealt with by the Supreme Court in Civil Appeal No.4736 of 2006 and an order had been passed, on 011. 2006, requesting the trial Court to dispose of the matter, deciding the issues relating to the compromise petition, expeditiously, preferably, within a period of six months from the date of receipt of a copy of the said order. 15. 2006, requesting the trial Court to dispose of the matter, deciding the issues relating to the compromise petition, expeditiously, preferably, within a period of six months from the date of receipt of a copy of the said order. 15. In such circumstances, this Court is of the view that it cannot be held that the respondent had willfully disobeyed the order passed by this Court, on 110. 1997. Hence, the contempt petition stands closed.