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2008 DIGILAW 1435 (MAD)

Kamatchi v. M. G. Venkatesan, Mylapore, Chennai

2008-04-29

M.JAICHANDREN

body2008
Judgment :- This contempt petition has been filed praying that this Court may be pleased to punish the respondent for having committed contempt of Court by disobeying the decree, dated 17. 2002, passed in S.A.No.751 of 1990. 2. The petitioner has stated that the premises bearing old No.15, New Door No.44, Nadu Street, Mylapore, Chennai, had originally belonged to her father Govindaraja Mudaliar. He had executed a registered Will, dated 7. 1966, bequeathing the front portion of the said premises in favour of the respondent granting a life estate in favour of his wife Jayammal in the rear portion and absolute estate in favour of the male issues of the first son M.Munusami. 3. The petitioner has further stated that the petitioners father had executed a Codicil, dated 7. 1971. As per the Codicil, the absolute estate in the rear portion had been bequeathed in favour of his daughter Vijayalakshmi and the petitioner, after the life time of Jayammal. The entire back portion inclusive of the vacant portion measuring 40 feet north to south and 24 feet east to west, together with the drainage and 4 feet lane on the east of the property had been bequeathed in favour of Jayammal, for her life. The rear portion measuring 40 feet north to south and 24 feet east to west, together with the entire drainage and 4 feet lane on the east of the property, the entire drainage and drainage chamber situated in the front veranda and electric installation, along with the latrine situated in the front had been bequeathed to the petitioners mother, for a life time, as per the Codicil, dated 7. 1971 and the same has been bequeathed in favour of the petitioners sister and the petitioner, absolutely. The petitioners sister had executed a release deed in respect of her half share in the rear portion of the said property in favour of the petitioner. The petitioner is entitled to the entire rear portion together with the 4 feet lane leading to the rear portion, along with the drainage, electricity connection, etc. 4. The petitioner has further stated that a letter of administration annexed with the Will, dated 7. 1966, in Exhibit A.1 and the Codicil, dated 7. 1971, in Exhibit A.2 was granted by this Court. 4. The petitioner has further stated that a letter of administration annexed with the Will, dated 7. 1966, in Exhibit A.1 and the Codicil, dated 7. 1971, in Exhibit A.2 was granted by this Court. However, the respondent had high handedly and unauthorisedly made an opening and fixed a door way, in the front portion bequeathed to him, opening into the 4 feet lane inspite of the protests of Jayammal. Further, instead of constructing the staircase and latrine in the portion bequeathed to him, he had constructed the same over the lane. The staircase has been constructed in such a manner that it had obstructed the proper usage of the 4 feet lane. Further, the respondent has been letting out the drainage water in the passage way. In such circumstances, the petitioner had filed a suit in O.S.No.7218 of 1984, on the file of the V Assistant Judge, City Civil Court, Chennai, praying for the relief of declaration, declaring that the petitioner is absolutely entitled to the vacant site morefully described in the schedule and shown in red colour in the plan and to declare that the 4 feet lane situated on the east of the property to be belonging to the petitioner absolutely and to direct the respondent to deliver the possession of the same and to direct the respondent to pay a sum of Rs.50/-p.m. towards damages for the use and occupation and for a permanent injunction restraining the respondent from interfering with the peaceful possession of the vacant site by the petitioner and to declare that the drainage running through the 4 feet lane belongs to the petitioner and for a mandatory injunction directing the respondent to close down the door way situated on the eastern wall allotted to the respondent, etc. 5. The petitioner has further stated that the trial Court had dismissed the suit. Therefore, the petitioner has filed an appeal in A.S.No.46 of 1989, on the file of the IV Additional Judge, City Civil Court, Chennai. The said appeal was partly allowed granting a declaration in respect of the vacant site measuring 8 feet x 25 feet on the rear side and had granted relief of permanent injunction in respect of the said site. Therefore, the petitioner had filed the second appeal before this Court in S.A.No.751 of 1990. 6. This Court, had passed a decree, dated 17. 2002, which is as follows: "1. Therefore, the petitioner had filed the second appeal before this Court in S.A.No.751 of 1990. 6. This Court, had passed a decree, dated 17. 2002, which is as follows: "1. that the plaintiff be and hereby is granted the relief of declaration that she is entitled to the vacant site morefully described in the schedule and a consequential permanent injunction. 2. that the plaintiff be and hereby is also entitled to get a declaration that the 4 lane belonging to her exclusively. 3. that the plaintiff be and hereby is also granted the relief of mandatory injunction directing the 1st defendant to close down the door way situated on the eastern wall opening into the 4 lane and to remove the bath room, stair case and other coverings put up over the 4 lane in a period of three months. 4. that in other respects the suit be and hereby is dismissed. 5. that there will be no order as to costs in this second appeal." 7. The petitioner has submitted that inspite of the decree passed by this Court, on 17. 2002, the respondent has not implemented the same. Thus, he has committed contempt of Court by wilfully disobeying the said decree, dated 17. 2002. 8. It was submitted on behalf of the respondent in the contempt petition that the decree was passed by this Court, on 17. 2002, in the second appeal No.751 of 1990. The said decree had been made ready, on 27. 2002. As it was felt by the respondent that they were certain ambiguities in the judgment and errors apparent on the face of the record, a review application had been filed, on 210. 2002. Thereafter, the contempt notice issued by the petitioner had been received by the respondent. Since there was a delay in filing the review application, a petition had been filed to condone the delay. The delay in filing the review application had been condone by this Court. Thereafter, the review application had been admitted by this Court and notice had been ordered in the Interlocutory Applications filed by the petitioner, praying for an order of interim stay, for appointment of an Advocate Commissioner and for letting in additional documentary evidence. 9. The respondent had filed a common counter affidavit only in the month of January, 2008. Thereafter, the review application had been admitted by this Court and notice had been ordered in the Interlocutory Applications filed by the petitioner, praying for an order of interim stay, for appointment of an Advocate Commissioner and for letting in additional documentary evidence. 9. The respondent had filed a common counter affidavit only in the month of January, 2008. Since the three months time, granted by this Court for implementing the decree, would commence only from 210. 2002, when the respondent had received the copy of the judgment and decree from his counsel, the time granted by this Court would be till 21. 2003. However, the review application had been filed, on 210. 2002. In such circumstances, the respondent had not committed contempt of Court as there was no wilful disobedience of the judgment and decree of this Court, dated 17. 2002, made in S.A.No.751 of 1990. The respondent had also tendered his unconditional apology, if this Court finds that the respondent had committed contempt of Court, as alleged by the petitioner. 10. The learned counsel appearing for the petitioner had submitted that the filing of the review application by the respondent is immaterial. The respondent has committed contempt of Court by wilfully disobeying the decree of this Court, dated 17. 2002, as he had not removed the overhanging toilet and stair case built over the 4 feet lane, within the period 3 months stipulated by this Court, commencing from the date of the decree. Since the judgment was pronounced in the open Court, the respondent cannot justify his mistake by contending that he had obtained a copy of the judgment and decree from his counsel only, on 210. 2002. The review application is frivolous and vexatious. Even otherwise, the pendency of the Review Application would not cure the illegal act committed by the respondent. 11. In view of the submissions made by the learned counsels appearing for the petitioner as well as the respondent and in view of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to punish the respondent for contempt of Court, as alleged in the contempt petition. It is clear that the respondent had filed a review application in Review Application No.89 of 2003, on 210. It is clear that the respondent had filed a review application in Review Application No.89 of 2003, on 210. 2002, raising various grounds for the review of the judgment and decree passed by this Court, on 17. 2002, in the second appeal No.751 of 1990. Further, the learned counsel appearing for the respondent is ready and willing to demolish the offending structures, if this Court so orders, while disposing of the review application. The respondent has also tendered his unconditional apology in case this Court finds that he has committed contempt of Court by some act or omission. 12. Further, it is seen that the dispute is between the siblings namely, the sister and the brother and serious attempts had been made to arrive at an amicable settlement. The decree of this Court, dated 17. 2002, made in S.A.No.751 of 1990, is an executable decree and therefore, it is open to the petitioner to execute the same in the manner known to law. Hence, the contempt petition stands closed. Consequently, connected Sub Application No.17 of 2003 is also closed. No costs.