Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 1363 (MAD)

V. Uma v. V. Balaji

2011-03-10

D.MURUGESAN, K.K.SASIDHARAN

body2011
Judgment :- K.K. Sasidharan, J. 1. The petitioner seeks initiation of proceedings for contempt against the respondent for his wilful disobedience of the order passed by the learned District Munsif, Ambattur dated 25 August, 2009 in I.A.No.919 of 2009 in O.S.No.296 of 2009. Summary of facts:- 2. The petitioner is stated to be the absolute owner of the residential building and the property in Survey No.23/2 at Oragadam Village, Ambattur Taluk. The respondent encroached upon a portion of the said property. However, without removing the encroachment, the respondent filed a suit in O.S.No.275 of 2009 before the learned District Munsif, Ambattur alleging that the petitioner has interfered with his peaceful possession and enjoyment of the property. 3. Since the respondent had encroached an extent of 48 sq.ft., the petitioner has decided to put up a compound wall to her property so as to prevent further acts of encroachment. However, she was prevented from putting up the compound wall and as such, she was constrained to file a suit for mandatory injunction in O.S.No.296 of 2009 before the learned District Munsif, Ambattur. The petitioner filed an interlocutory application in I.A.No.919 of 2009 in the said suit to restrain the respondent or anybody claiming under him from interfering with her peaceful possession and enjoyment of the property. She also filed an application in I.A.No.920 of 2009 for appointment of an Advocate Commissioner to note down the physical features of the suit property with the help of Taluk Surveyor. 4. The learned District Munsif was pleased to grant an order of injunction on 25 August, 2009. The Trial Court appointed an Advocate Commissioner and accordingly after issuing notice to the respondent, the Commissioner inspected the property. The Advocate Commissioner in his report had categorically stated that the respondent had encroached an extent of 40 sq.ft. 5. While the matters stood thus, the petitioner took steps to construct a compound wall to her property. The respondent resisted the said attempt, in spite of the order of injunction granted by the Trial Court. Subsequently, she filed another application in I.A.No.1661 of 2010 seeking police protection, so as to enable her to put up a compound wall. Accordingly, police protection was given. At this point of time, the respondent started putting up a compound wall by encroaching four feet width on the northern side of the property to the entire extent of 94 feet length. Accordingly, police protection was given. At this point of time, the respondent started putting up a compound wall by encroaching four feet width on the northern side of the property to the entire extent of 94 feet length. The said action amounted to disobedience of the order made in I.A.No.919 of 2009 and as such, the petitioner was constrained to file the present application for contempt. 6. The Registry entertained a doubt about the maintainability of the contempt petition. Therefore, the matter has been placed before us for deciding the maintainability. Submissions: 7. The learned counsel for the petitioner contended that it is open to the petitioner to invoke Order XXXIX Rule 2A of the Code of Civil Procedure or to file an independent contempt application before this Court, as this Court is a Court of record. According to the learned counsel, in case the petitioner initiates action for punishing the respondent, it would be taken up only along with the main suit and as such, there is no chance of getting immediate relief. The learned counsel placed reliance on the following decisions in support of his contention pertaining to concurrent jurisdiction of this Court to deal with matters regarding violation of the orders passed by the Subordinate Courts. (i) Ram Prakash & Bros. v. Nagar Mahapalika, Lucknow (1983 Crl. Law Journal 753) (ii) G. Rajaram v. T.K.Rajendan, I.P.S. ( 2010(4) CTC 407 ) Consideration: 8. The petitioner filed a suit in O.S.No.296 of 2009 praying for a decree of mandatory injunction to remove the encroachment made at the instance of the respondent. The learned District Munsiff, Ambattur was pleased to grant an ex parte order of injunction on 25 August, 2009 restraining the respondent and their agents from trespassing into the northern side of the suit property and putting up construction. 9. The affidavit filed in support of the contempt petition shows that in spite of the order of injunction granted by the Civil Court in I.A.No.919 of 2009 in O.S.No.296 of 2009, the respondent has trespassed into the property and attempted to put up a compound wall. Therefore, the issue is one of disobedience of the order of injunction granted by the Civil Court. The Statutory Scheme: 10. The Civil Procedure Code contains provisions regarding grant of decrees and orders as also its enforcement. Order XXXIX Rule 1 provides for granting temporary injunctions and interlocutory orders. Therefore, the issue is one of disobedience of the order of injunction granted by the Civil Court. The Statutory Scheme: 10. The Civil Procedure Code contains provisions regarding grant of decrees and orders as also its enforcement. Order XXXIX Rule 1 provides for granting temporary injunctions and interlocutory orders. Order XXXIX Rule 2A of the Civil Procedure Code indicates the consequences of disobedience or breach of order of injunction. The provision reads thus: [2A. Consequence of disobedience or breach of injunction (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]" 11. Therefore Order XXXIX Rule 2A takes care of situations in case, a party against whom an order of injunction was issued violates the said order. Rule 2A (2) provides for attachment and sale of the property belonging to the contemner, in case disobedience or breach continues even after a period of more than one year. Similarly Order XXI Rule 32(2) provides for enforcing the decree for specific performance, restitution of conjugal rights or for injunction. Therefore, the Civil Procedure Code itself takes care of situations arising on account of violations of the order of injunction or disobedience of order or decrees passed by the Civil Court. 12. Order XXXIX Rule 2A and Order XXI Rule 32(2) are intended for enforcing the order or decree of injunction and as such those provisions are adequate remedies. Therefore, the Civil Procedure Code itself takes care of situations arising on account of violations of the order of injunction or disobedience of order or decrees passed by the Civil Court. 12. Order XXXIX Rule 2A and Order XXI Rule 32(2) are intended for enforcing the order or decree of injunction and as such those provisions are adequate remedies. In the event of initiating proceedings for violation of decree or order of injunction, it is open to the parties to collect evidence to prove their respective contentions, and it would enable them to demonstrate before the Trial Court the circumstances under which the order of injunction was granted and the alleged act of disobedience at the instance of the opposite party. It would also enable the contemner to produce materials to show that he has not committed any act of contempt as alleged. The orders passed by the trial Court under these provisions are appealable orders. Therefore, the Civil Procedure Code itself contains an inbuilt provision to safeguard the interest of parties. 13. The contempt is essentially a matter between the Court and the contemner. The petitioner in a contempt jurisdiction could only appraise the Court of the contempt committed by a party to the lis. It is for the Court to take cognizance of the contempt and proceed further. Therefore, the issue is whether this Court is bound to proceed under the Contempt of Courts Act in spite of an alternate remedy to the petitioner to appraise the Concerned Trial Court about the acts of disobedience of the order. 14. The petitioner placed reliance on the decision of the Allahabad High Court in Ram Prakash & Bros. v. Nagar Mahapalika, Lucknow (1983 Crl. Law Journal 753) in support of his contention that in case the order of injunction was violated, the High Court is competent to punish the contemner. A perusal of the said decision shows that the party against whom the contempt was alleged was not impleaded in the suit and as such the remedy under Order 2A was not efficacious. It was only under such circumstances, the learned Judge observed that refusal to take action under the contempt of Courts Act on the ground of existence of alternative remedy was not correct. 15. It was only under such circumstances, the learned Judge observed that refusal to take action under the contempt of Courts Act on the ground of existence of alternative remedy was not correct. 15. The learned counsel for the petitioner by placing reliance on the judgment of the Division Bench of this Court in 2010(4) CTC 407 (G. Rajaram v. T.K.Rajendan, I.P.S.) and contended that High Courts are the Superior Courts of record and as such, it has got inherent powers to punish contemners independent of the provisions of the Contempt of Courts Act. In Rajaram's case, the Division Bench, of which one of us was a party (D. Murugesan, J) was dealing with Article 215 of the Constitution of India for the purpose of giving appropriate punishment to the Contemner. The Division Bench held that Article 215 does not restrict the power of the Court to impose punishment which it considers to be appropriate and justified. The following paragraph would make the position clear. "16. The power of Court to entertain and consider the act of contempt of Court is two fold. The Court is empowered to proceed against a contemner for civil contempt as well as criminal contempt in terms of the provisions of Sections 10, 11 and 12 of the Contempt of Courts Act either with regard to the alleged disobedience of the Court's orders or in regard to the interference or obstruction to the administration of justice. Apart from the said power, this Court being a Court of record, is empowered to punish for contempt of itself in terms of Article 215 of the Constitution of India. The High Courts are the superior Courts of record and they have inherent and plenary powers independent of the provisions of the Contempt of Courts Act. The power of the High Court to punish for contempt can exclusively be based on Article 215 of the Constitution of India. As against the provisions of Section 12 of the Contempt of Courts Act fixing a specified punishment, Article 215 does not restrict the power of the Court to impose the punishment which it considers to be appropriate and justifiable. As against the provisions of Section 12 of the Contempt of Courts Act fixing a specified punishment, Article 215 does not restrict the power of the Court to impose the punishment which it considers to be appropriate and justifiable. Under Section 12 of the Contempt of Courts Act, though the High Court is empowered to only impose the punishment of simple imprisonment for a period not exceeding six months and send the contemner to civil prison and impose a fine upto a maximum of Rs.2,000/-, under Article 215 of the Constitution, all that the High Court should consider as to whether the quantum of punishment and for that matter, the nature of the orders be it by way of cost or compensation, could meet the ends of justice." 16. The question, whether the Civil Procedure Code contains adequate and satisfactory remedy in the event of disobedience of the order of injunction granted by the Civil Court, came up for consideration before a Division Bench of this Court in Ramalingam v. Mahalinga Nadar (1965 (2) Madras Law Journal162). While interpreting the existing provision as contained under Order XXXIX Rule 2(3) of the Civil Procedure Code, the Division Bench observed thus:- "Essentially, Contempt of Court is a matter which concerns the administration of justice, and the dignity and authority of judicial tribunals; a party can bring to the notice of Court, facts constituting what may appear to amount to contempt of Court, for such action as the Court deems it expedient to adopt. But, essentially, jurisdiction in contempt is not a right of a party, to be invoked for the redressal of his grievances; nor is it a mode by which the rights of a party, adjudicated upon by a tribunal, can be enforced against another party. The entire corpus of execution law exists for the enforcement of rights, by one party against another, which have been the subject matter of adjudication. In our view, there are sufficient grounds here to show that it will be expedient and undesirable to institute proceedings in contempt jurisdiction, in a situation of this kind. Firstly, the facts themselves may be in controversy, whether a deliberate flouting of a judicial order or decree has occurred and we state this, irrespective of the merits of the instant case. When they are in controversy, they cannot be ascertained without due enquiry. Firstly, the facts themselves may be in controversy, whether a deliberate flouting of a judicial order or decree has occurred and we state this, irrespective of the merits of the instant case. When they are in controversy, they cannot be ascertained without due enquiry. If the Court is to commence an action in contempt jurisdiction, only after ascertaining facts at such an enquiry, obviously it will be converting itself into an agency for arriving at findings of fact which may be a foundation for contempt jurisdiction. On the contrary, it would be in the interests of justice to exercise contempt jurisdiction, or to commence to do so, only when the facts of the record ex facie support such a proceeding; any detailed enquiry must be left to the Court which has passed the order, and which is presumably fully acquainted with the subject-matter of its own decree of temporary prohibitory injunction. For this reason, we are of the view that Order XXXIX Rule 2(3) of the Civil Procedure Code, is far more adequate and satisfactory remedy in such cases. Again, where the situation is strictly inter parties and third party rights are not involved, it is clearly more desirable that the Court which made the order of injunction, should go into the facts, and ascertain the truth of the alleged disobedience, and the extent to which it has been wilful. ".............. Contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it, as distinguished from a wrong that might be inflicted on a private party, by infringing a decreetal order of Court." 17. The learned counsel for the petitioner further contended that the Trial Courts are not taking up the contempt petitions then and there and whenever, disobedience to the order injunction is brought to the notice of Court, such applications used to be tagged along with the main suit. 18. The Trial Court should make an attempt to take up such violation applications before the disposal of the suit as otherwise there is no point in giving interlocutory injunction after making out a prima facie case. Parties to the lis should not be allowed to flout the order of Court and avoid actions under the guise of pendency of the substantial proceedings . Parties to the lis should not be allowed to flout the order of Court and avoid actions under the guise of pendency of the substantial proceedings . The main object of Rule 2A of Order XXXIX is to uphold the majesty of judicial orders, as otherwise, it would erode the faith of litigants in the Justice Delivery System. 19. Therefore, we are of the considered view that whenever such applications are filed, the Trial Court should take up those applications not withstanding the pendency of the suit. In fact, the order passed under Order XXXIX Rule 2A is distinct and separate and an appeal would lie against the said order. Therefore, every attempt should be made by the Trial Court to dispose of the applications filed under Order XXXIX Rule 2A not withstanding the pendency of the suit. Result: 20. In view of the alternative remedy available to the petitioner, under Order XXXIX Rule 2A, we are of the opinion that it would not be proper or appropriate on our part to permit the petitioner to invoke the jurisdiction under the Contempt of Courts Act. We give liberty to the petitioner to file appropriate application before the Trial Court and we are sure that such application would be considered by the trial Court on merits and as per law as expeditiously as possible. 21. In short, we sustain the objection raised by the Registry and dismiss the contempt petition.