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2009 DIGILAW 930 (CAL)

Dinesh Kumar Goyal v. Pawan Chowdhury

2009-12-22

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) By this application under Section 10 of the Contempt of Courts Act, 1971 the petitioner who is the plaintiff in Title Suit No. 4009 of 2008 pending before the learned Civil Judge (Junior Division), Alipore complains of wilful and deliberate violation of Order No. 2 dated 7.1.2009 passed in connection with the said suit. (2.) The plaintiff applied for membership of the defendant No.1 club and such membership was granted sometime in the year of 2002 upon acceptance of a sum of Rs.2,04,150/-. On 15.2.2005 the club asked him to appear before the committee which is entrusted with management and affairs of the club on 22.2.2005. On 21.2.2005 the defendant No.2 the Secretary of the club informed him of the postponement of the meeting scheduled on 22.2.2005. On 21.2.2005 itself the plaintiff requested the defendant No. 2 to dispense with his personal appearance and to treat his membership as a regular one. On 18.9.2006 the plaintiff requested the defendant No. 2 to furnish to him upto date information, date and members directory but the defendants failed to do so. Sometime in the year of 2006 the club imposed upon him a unreasonable instruction regarding service of food at the outer restaurant club, named, "Sequence". On 10.7.2006 the plaintiff requested the defendant No.2 to remove such unreasonable instruction. This request was further renewed by a letter dated 16.6.2007. The defendant declined to pay any heed to the request of the plaintiff. Request to remove the said unreasonable instruction was again renewed by a subsequent reminder dated 23.11.2006 but in vain. On 28.11.2008 the club issued a communication to the plaintiff asking him to withdraw his charges against the committee members and cancelled his temporary membership with immediate effect. The plaintiff replied to the letter on 4.12.2008 denying the charges. By further letter dated 5.12.2008 plaintiff asked the defendant No.1 to supply copy of the rules and regulations of the club and recent list of members of the club but he was denied; then the plaintiff issued an Advocates letter dated 6.12.2008 narrating all the facts and denying the charges. There was further request by the plaintiff by communication dated 8.12.2008 for supply to him the copy of rules and regulations of the club but he was not given the documents asked for in spite of the charges having been denied. There was further request by the plaintiff by communication dated 8.12.2008 for supply to him the copy of rules and regulations of the club but he was not given the documents asked for in spite of the charges having been denied. The communication dated 28.11.2008 whereby his temporary membership was cancelled was not withdrawn by the club. Thus, the suit was instituted for declaration that the purported communication dated 28.11.2008 whereby his temporary membership was cancelled was illegal and void and for perpetual injunction to restrain the defendants from acting on that communication dated 28.11.2008 and for mandatory injunction so as to allow the plaintiff to enter into the club. The suit was instituted in December, 2008. Copies of communications were annexed to the plaint. (3.) On 7.1.2009 the plaintiff moved an application under Order 39 Rule 1 and 2 C.P.C. praying for temporary injunction as also ad interim ex-parte injunction so as to compel the defendants not to give effect to the communication dated 28.11.2008 whereby his temporary membership was cancelled. The learned trial Court by the Order No. 2 dated 7.1.2007 granted an ex-parte ad interim injunction to restrain the club from enforcing their letter dated 28.11.2008 issued to the plaintiff whereby membership was cancelled. This ex-parte interim injunction was extended from time to time. (4.) The defendants club appeared and filed a written objection to the injunction application as also an application under Order 39 Rule 4 of the C.P.C. praying for rescinding the order of ad interim injunction dated 7.1.2009, I am told that these applications are yet to be disposed of by the learned trial Court. (5.) The plaintiff wrote a detailed letter on 10.1.2009 asking the club to hand over to his authorised representative two car stickers enclosing therewith copy of the order dated 7.1.2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore. Allegedly, the club authority refused to accept the communication. Then on 10.11.2009 the plaintiff again wrote to both the defendants alleging that the office staff of the club refused to accept his letter of the even date and declined to give car stickers on the ground of cancellation of membership even though learned Courts order was communicated over telephone to the honorary secretary of the club. Then on 10.11.2009 the plaintiff again wrote to both the defendants alleging that the office staff of the club refused to accept his letter of the even date and declined to give car stickers on the ground of cancellation of membership even though learned Courts order was communicated over telephone to the honorary secretary of the club. Thus on 10.1.2009 two letters were issued.....by one letter request was made to provide two car stickers and when that letter was refused to be accepted the plaintiff issued another letter on that date itself complaining of such refusal of acceptance of the letter in violation of the Courts order. On 31.3.2009 again a letter was issued requesting the club to provide car stickers. The office staff made an endorsement on that letter "sticker is out of stock and can only be issued when available." Then by next letter dated 1.4.2009 request was made to provide car stickers or else to allow to park the car inside the club premises without the sticker and reminded him of the Courts order dated 7.1.2009. On 2.4.2009 the plaintiff again wrote a letter complaining of non-issuance of car stickers and not permitting him to park his car inside the club premises without the sticker. In that letter it was stated that when his representative contacted an officer with his letter dated 1.4.2009 the said officers insulted his authorised representative by intolerable language and filthy insinuations. Then the club through its Advocate wrote a letter to the Advocate of the plaintiff on 6.4.2009 wherein the following was stated:-"My client has taken the wrongful allegation of using intolerable and filthy insinuations made against Shri Ramji Bhagat by your client very seriously and calls upon your client to prove such allegations, otherwise my client shall file defamation suit against your client and also lodge criminal proceedings against your client for tarnishing the image of a respectable office bearer of an organisation. Further, your clients letter dated 1.4.09 addressed to my client, seeking therein a letter to be issued directing the security officers to allow him to park his car inside the club premises without the sticker can not be issued as there is no such rules for and/or provisions for, doing so and my clients are not duty bound to accept every directives in the strength of the Courts order." (6.) Thus, the plaintiff commence this again under Section 10 of the Contempt of Courts Act alleging violation of the learned trial Courts order as was evident from the letter of the club dated 6.4.2009. (7.) The club-respondent filed an affidavit- in-opposition denying the allegations to be true and according to them a non-member cannot ask for a car sticker since 28.1.2008 the plaintiff is no more a member of the club. The plaintiff hoodwinked the Court to have an order of injunction. It has been stated in the affidavit- in-opposition that the defendants have already been filed an application under Order 39 Rule 4 of the C.P.C. for rescinding the ad interim order of injunction. There has been no violation of the terms and conditions of the company. There has been no violation of the order of the learned trial Court. Hearing of the application under Order 39 Rule 4 C.P.C. has already started and in such circumstances this petition under Section 10 of the Contempt of Courts Act is mis nomer the grounds are all false. (8.) The plaintiff-petitioner has filed an affidavit- in- reply to such affidavit in- opposition reiterating the same facts which were alleged in the application for contempt. (9.) I have heard Mr. Aniruddha Roy, appearing with Ms. Sutapa Roychowdhury learned Advocate for the petitioner moving this application under Section 10 of the Contempt of Courts Act and Mr. S. R Mukherjee, learned Advocate appearing for the opposite parties-contemnors. (10.) Mr. (9.) I have heard Mr. Aniruddha Roy, appearing with Ms. Sutapa Roychowdhury learned Advocate for the petitioner moving this application under Section 10 of the Contempt of Courts Act and Mr. S. R Mukherjee, learned Advocate appearing for the opposite parties-contemnors. (10.) Mr. Mukherjee opposing the contempt application made an attack on the maintainability of the petition on the ground that as there is a specific provision in the Civil Procedure Code, Order 39 Rule 2A C.P.C. providing a relief to a party complaining of wilful disobedience of any order passed under Order 39 Rules 1 and 2 C.P.C, the party has to take recourse to that provision which is special of its kind instead of making an application under Section 10 of the Contempt of Courts Act. Mr. Roy, learned Advocate appearing for the petitioner has made his reply to the challenge to the maintainability of this contempt application. I have decided to consider this point of maintainability, first because if it would appear that the petition can be accepted by overruling the objection of Mr. Mukherjee then and then only the Court may go on the factuality of the case. Therefore, this order is solely confined to the question whether in view of a specific provision made available in the Code of Civil Procedure, Order 39 Rule 2A, this application under Section 10 of the Contempt of Courts Act should be entertained. Mr. Mukherjee has referred to a Division Bench decision of this Court in Calcutta Medical Stores v. Stadmed Private Ltd., reported in 81 CWN 209. This was a case of violation of an order of injunction passed by a Court subordinate to this Court. It was observed by this Division Bench is follows:-"Violation of an order of injunction constituting disobedience to an order of a Court, subordinate to this Court, if wilful may constitute civil contempt as defined by the Act and this Court may also be invested with powers to take action for such contempt. But civil contempt is by its very nature remedial the primary object being to enforce the order for the benefit of the party in whose favour the order had been made. But civil contempt is by its very nature remedial the primary object being to enforce the order for the benefit of the party in whose favour the order had been made. Such being the nature of civil contempt, it would be reasonable to think that where the law otherwise specifically provides a remedy for breach of such order as also the means for its enforcement, the parties must normally avail of such remedies and this Court should not encourage by-passing such remedies by initiating proceedings under the Contempt of Courts Act. The learned Counsel for the petitioners contends that, if we take this view, we shall only render Section 10 of the Contempt of Courts Act nugatory. We, however, find no force in this contention. Section 10 of the Act no doubt invests this Court with ample powers to take cognizance of such contempt committed with regard to the Courts, subordinate to this Court, which in an appropriate case may be exercised. But that does not mean that in each and every case of such an alleged contempt this Court should exercise such Dowers, allowing the same to be used as a convenient substitute for the specific remedies otherwise provided by the law. Existence of such a specific remedy and non-availing of such a remedy without any justifiable reason are factors which this Court is entitled to consider when exercising its discretion in committal for contempt. (See: Kisan Krishnaji Tikle v. Nagpur Conference of Society of St. Vincent De Paul, AIR 1943 Nag. Existence of such a specific remedy and non-availing of such a remedy without any justifiable reason are factors which this Court is entitled to consider when exercising its discretion in committal for contempt. (See: Kisan Krishnaji Tikle v. Nagpur Conference of Society of St. Vincent De Paul, AIR 1943 Nag. 334 and Basan v. S. Roy, 43 Cal LJ 41)" (11.) To explain why the Court should be reluctant to entertain an application under Section 10 of the Contempt of Courts Act for violation of an order of injunction passed by a Court subordinate to a High Court their ordships of the High Court in this decision further referred to the words of Sir George Jessel, M.R. in the case of Cleements Republic of Costa rica v. Erlnger which is as follows:-"It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so with the greatest reluctance and the greatest anxiety on the part of Judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve mens rights, that is, if no other pertinent remedy can be found." (12.) Mr. Mukherjee referred to Samir Kumar Sarkar v. Maharaj Singh, reported in 1982 (II) CHN 213 wherein the decision in Calcutta Medical Stores was referred to. Here at Paragraph-11 of this decision it has been observed by another Division Bench of this Court as follows:- "Contempt of Court is necessarily a matter which concerns the administration of justice and the dignity and authority of judicial tribunals. It is not a right of a party to be invoked for the redress of his grievances. It is not also a mode by which the rights of party adjudicated upon by a tribunal can be enforced against an other party. It is not a right of a party to be invoked for the redress of his grievances. It is not also a mode by which the rights of party adjudicated upon by a tribunal can be enforced against an other party. In the present case the matter in dispute requires a detailed enquiry. It must, therefore, be left to the Court which passed the order and which presumably is fully acquainted which the subject- matter of its own order. When the matter relates to mere involvement of an order as between the rival parties it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order. The proper and the correct mode is to take recourse to Order 39 Rule 2A of the C. P. Code. Contempt jurisdiction should not be invoked in such cases which is primarily reserved for what essentially brings the administration of justice into contempt of unduly weaken it." (13.) Then yet another Division Bench decision of this Court in Durga Prasad Gupta v. Sahadeb Dey and Ors., reported in 1998 (1) Cal. LT 447 has been also referred to. Here the words of the Division Bench are too explicit. It has been held that with the advent of Order 39 Rule 2A C.P.C, Section 2c(ll)(lll) of the Contempt of Courts Act, 1971 for the nature of allegations the application is not maintainable. Their Lordships of the Division referred to Dr. Bimal Chandra Sen v. M/s. Kamal Mathur, 1983 Cri. LJ 495 where it was held that violation of an order of injunction could be dealt with under Order 39 Rule 2A of the Code of Civil Procedure before this subordinate Court and the High Court in exercise of its discretionary power under Section 10 would refuse to exercise any jurisdiction under the said section. (14.) Therefore, it is argued by Mr. Mukherjee that the petitioner may be advised to take recourse to the provision of Order 39 Rule 2A C.P.C. to seek for relief. (15.) Mr. Roy learned Advocate appearing for the petitioner submitted that the Contempt of Courts Act is a Special Law which must prevail over the law of procedure. It is not that, argues Mr. Roy, that Section 10 of the Act, 1971 is a total exclusion to the allegation complained of. (15.) Mr. Roy learned Advocate appearing for the petitioner submitted that the Contempt of Courts Act is a Special Law which must prevail over the law of procedure. It is not that, argues Mr. Roy, that Section 10 of the Act, 1971 is a total exclusion to the allegation complained of. The Court may exercise its discretion to punish the contemnors as they refused to obey the order of the Civil Court dated 7.1.2009 and since the proceeding under Order 39 Rule 2A C.P.C. is a long drawn rigorous procedure this Court must not overlook that and asking a party to take recourse to the provision of Order 39 Rule 2A C.P.C. would be to ask him to wait for long period of time to obtain a relief under that provision of law. The order dated 7th January, 2009 was not appealed against; although an application has been filed by the contemnors under Order 39 Rule 4 C.P.C Provision of Order 39 Rule 2A C.P.C. provides for civil imprisonment of the alleged contemnors and attachment of property but here the petitioner wants speedy remedy by way of allowance of his entry into the club premises and to park his cars with or without sticker. Putting a person in fear of imprisonment or attachment is not necessarily the desired object in each and every case. When this Court by an order can direct a party / contemnor to allow the petitioner herein to enter into the club premises and to park his cars so as to compel them to obey the trial Courts order dated 7th January, 2009 there is no reason why this Court would disallow such prayer and ask the petitioner to go to the Civil Court with an application under Order 39 Rule 2A C.P.C. Mr. Roy further argues that the decision in Calcutta Medical Stores relates to a suit for contract, while in the instant case it is declaratory suit and this distinction must not be lost sight. (16.) I fail to be impressed by the submission of Mr. Roy. Roy further argues that the decision in Calcutta Medical Stores relates to a suit for contract, while in the instant case it is declaratory suit and this distinction must not be lost sight. (16.) I fail to be impressed by the submission of Mr. Roy. Three Division Bench decisions rendered at different periods of time consistently held that where there is a specific provision under Order 39 Rule 2A C.P.C providing a party to a suit to complain of a wilful disobedience of a Courts order passed under Order 39 Rules 1 and 2 C.P.C. this Court does not find any special reason to deviate from the consistent view of this Court and to adjudicate upon the contempt application on its own merit. The argument that in Calcutta Medical the suit was one of a contract which is not here is not impressive. The languages and words used in three Division Bench decisions of this Court are very much explicit; no further word is needed to answer why this contempt application should not be entertained when a specific remedy is available in the Civil Procedure Code. Mr. Roys argument that if this be the approach of the Court then Section 10 of the Contempt of Courts Act would be nugatory. The question has been answered in Calcutta Medical Stores. As to the submission that the Contempt of Courts Act is a special statute which must prevail over the law of procedure answer has been made in Calcutta Medical Stores with these words that whether there is a law which specifically provides a remedy for breach of order as also the means of its enforcement the party must normally avail of such remedies and must not bypass such remedies by initiating contempt proceedings under the Act, 1971. In such circumstances, I dismiss this application, not on merit but observing that the petitioner may, if so advised, approach the appropriate Court under Order 39 Rule 2A C.P.C. Urgent xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.