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2011 DIGILAW 3832 (MAD)

V. Ravindran v. S. Jayanthi Selvam

2011-08-26

R.SUBBIAH

body2011
Judgment : R. SUBBIAH, J. 1. This appeal is filed as against the fair and decreetal order passed in I.A. No. 1763 of 2011 in O.S. No. 10044 of 2010 dated 12.4.2011 on the file of the VI Additional City Civil Court, Chennai, whereby the Court below by allowing the application filed by the first respondent/plaintiff, punish the appellants 1 and 2/defendants 1 and 3 to pay a sum of Rs. 5,000/- each to the first respondent/plaintiff as compensation under order 39 Rule 2(a) of Code of Civil Procedure . 2. Brief facts which are necessary to decide the issue involved in this appeal are as follows: The first respondent was the plaintiff and the appellants were defendants 1 and 3 and the respondents 2 and 3 were defendants 2 and 4 before the trial Court. The first respondent herein has filed a suit as against the appellants and respondents 2 and 3 herein for the following relief: a) To declare that the plaintiff is the sole, lawful and absolute owner of the entire land of the suit schedule property; b) To grant mandatory injunction, directing the defendants to deliver vacant possession of the entire suit schedule property after removing the existing super structure; and c) A decree of permanent injunction against the defendants restraining them and their men agents etc., from encumbering the suit schedule property in any manner to any third party. 3. It is the case of the first respondent/plaintiff that she had purchased the suit schedule property viz., vacant land bearing New Door No. 20, Old Door No. 39, Rasul Umar Bagadhur Main Street, Halls Garden, Royapettah, Chennai-600 014, in and by two separate sale deeds dated 14.12.1998 and 12.2.1999 from T.A. Ramachandran and others. The said documents were registered as Document Nos. 1229 of 1998 and 123 of 1999 in the Office of Sub Registrar, Triplicane. It is the further case of the first respondent/plaintiff that at the time of negotiation for purchase of the suit property, the first respondent/plaintiff was assured by her vendors as the appellants 1 and 2/defendants 1 and 3 who were temporarily residing in the suit property will immediately vacate the property and they were permitted by the vendors of the first respondent/plaintiff only for dwelling purpose without creating any kind of encumbrance over the property. Since the first respondent/plaintiff had believed the assurance of her vendor she had purchased the suit property by the aforesaid two registered documents. But, after the execution of sale deeds in favour of the first respondent/plaintiff by T.A. Ramachandran and others, the appellants/defendants have not vacated the the property inspite of the demands made by the first respondent/plaintiff as well as by her vendor. On the other hand, the appellants/defendants have started to demand huge amount for vacating and handing over the vacant possession of the suit property to the first respondent/plaintiff. Hence, the plaintiff has filed the suit for the prayer stated above. 4. The case of the first respondent/plaintiff was denied by the appellants/defendants stating that the suit property consists of roof building and it was originally purchased by the defendants great grand father Mr. Ponnusamy Pillai in and by a sale deed dated 22.4.1901 executed by Siloman Khan Sahib son of Late Lathif Khan Sahib. The great grand father Mr. Ponnusamy Pillai and his great grand father late Mariappan son of Ayyaswamy, mortgaged the suit property with roof with one Mariammal wife of Mark Antony by a registered Deed dated 19.4.1909. The defendants‘ grand father Thangavelu and his brother Vadivelu released the said mortgaged property being the suit property on 13.3.1914. The said property with roof house was purchased by these defendants grand father Thangavelu and his younger brother Vadivelu by a registered sale deed dated 13.3.1914 from their elder brother Mr. Ponnuswamy Pillai. Thereafter, their great grand father Thangavelu after obtaining necessary permission from the Corporation of Madras developed the said property by constructing new building with water and sewerage connections and also obtained Electricity connection to the said premises. After the demise of their, grand father Thangavelu, the suit property fell into the hands of the defendants‘ father Vijayaganapathy by way of inheritance. All the revenue records like electricity, water and sewerage records are mutated into the name of the defendants‘ father and he had been paying the necessary charges to the concerned authorities. After the demise of defendants‘ father on 15.2.1983, the appellants/defendants as only surviving legal heirs succeded to the estate of his father. Therefore, they are the absolute owner of the suit schedule property. After the demise of defendants‘ father on 15.2.1983, the appellants/defendants as only surviving legal heirs succeded to the estate of his father. Therefore, they are the absolute owner of the suit schedule property. Originally, the above suit was filed before this Court in C.S. No. 1128 of 2009 and subsequently, the suit came to be transferred to the VI Additional City Civil Court, Chennai on the ground of pecuniary jurisdiction and the suit was re-numbered as O.S. No. 10044 of 2009. When the suit was pending before this Court an order of injunction was granted in favour of the first respondent/plaintiff on 3.2.2010 restraining the appellants/defendants not to sell, settle, mortgage or encumber the suit schedule property. The said injunction order is still in force. After transfer of the suit, the appellants/defendants filed the written statement on 6.1.2011. After filing of the written statement by the appellants/defendants, the first respondent/plaintiff has filed the Interlocutory Application in I.A. No. 1418 of 2011 seeking an order of temporary injunction against the appellants/defendants from altering or demolishing, the existing superstructure as well as to restrain from putting up new construction in the suit property. The contention of the first respondent/plaintiff in the said application is that the petitioners are demolishing and reconstructing a portion of the superstructure in the suit property. In the said application, notice was ordered for hearing to the appellants/defendants on the said prayer by the Trial Court on 28.1.2011. On 28.1.2011, the first respondent/plaintiff made a representation before the Court seeking time to file a counter statement to the said petition. But, the Trial Court has granted an order of interim injunction on the same day i.e. on 28.1.2011 and directed the appellants/defendants herein to file their counter by the next day. In the meantime, the first respondent/plaintiff fried another application in I.A. No. 1763 of 2011 alleging contempt of the injunction order granted on 28.1.2011 in I.A. No. 1418 of 2011 stating that inspite of the injunction granted on 28.1.2011, the appellants/defendants have proceeded with the demolition and completed the construction and started a mutton stall and carrying on the business. Therefore, the first respondent/plaintiff prayed for punishing the appellants/defendants disobeying the order dated 28.1.2011 and 29.1.2011. Therefore, the first respondent/plaintiff prayed for punishing the appellants/defendants disobeying the order dated 28.1.2011 and 29.1.2011. The appellants/defendants herein has filed the counter in the said contempt petition, denying the allegations made by the first respondent/plaintiff with regard to the demolition and reconstruction of the suit schedule property. Further, in the counter statement, the appellants/defendants stated that due to overflowing of rain water during the rainy sessions, they raised the floor and the asbestos roof level in the existing shops. Further, they have stated in the counter that the mutton stall was not a new construction and the premises is having electricity connection for the past ten years. Thus, they denied the allegations of the first respondent/plaintiff that there was a demolition and reconstruction of the suit schedule property by them. 5. In order to prove the contempt, on the side of the first respondent/plaintiff, three photographs were marked as Exhibits P-1 to P-3. The Trial Court by relying upon the said photographs, has come to the conclusion that inspite of the interim order granted by the Court, the appellants/defendants have violated the interim order with the intention to defeat the claim of the first respondent/plaintiff deliberately and thus allowed the application filed by the first respondent/plaintiff, punishing the appellants/defendants, by directing them to pay a sum of Rs. 5,000/-each to the plaintiff as compensation under Section 39 Rule 2(a) of C.P.C. Aggrieved over the same, the present appeal is filed. 6. The learned counsel appearing for the appellants/defendants submitted that even in the written statement filed by the appellants/defendants it has been stated that already construction was there in the suit property. Even in the plaint, the first respondent has prayed for mandatory injunction only to deliver the possession after demolishing the superstructure. This facts would show the already a superstructure was in existence in the suit property. When the suit was ripe for trial, the first respondent/plaintiff Instead of contesting the suit, filed a application on 28.1.2011 alleging that the appellants/defendants demolished the portion of the superstructure and re-constructing same without getting permission from the Corporation of Chennai. But in the affidavit, she has not given any particulars as to which portion was demolished and what was the construction the appellants/defendants were carrying on. But in the affidavit, she has not given any particulars as to which portion was demolished and what was the construction the appellants/defendants were carrying on. The learned counsel appearing for the appellants further submitted that In the contempt petition filed by the respondent on 31.1.2011, she had stated as if the appellants have demolished the superstructure and completed the construction; after the order of injunction granted by the Court on 28.1.2011 i.e., just three days prior to the filing of contempt petition. In this regard, the learned counsel appearing for the appellants further submitted that demolishing the said superstructure and reconstructing the portion of the building within three days is not possible. But, the Court below without recording the evidence of the parties but by merely placing a reliance on three photographs produced by the first respondent/plaintiff allowed the application filed by the first respondent/plaintiff by punishing the appellants. The learned counsel appearing for the appellants further submitted that the Court below at least ought to have appointed an Advocate Commissioner to find out the veracity of the statement made in the contempt petition. Therefore, punishment imposed by the Court below by merely placing reliance on three photographs is not legally sustainable. Moreover, the appellants herein have been in possession and enjoyment of the suit property more than a decade. In this factual scenario, the Court below ought to have dismissed the contempt petition filed by the first respondent herein. In support of his contention, the learned counsel appearing for the appellants relied upon the judgments in the case of Samee Khan v. Bindu Khan and Another AIR 1998 SC 2765 : (1998) 7 SCC 59 : LNIND 1998 SC 820 : (1999) 1 MLJ 110 , judgment in the case of NazeemaParveen and Others v. A. Zubeidha bee and Another 2009 (3) C.L.T.722 : LNIND 2009 Mad 2652 : (2009) 8 MLJ 1221 , in the case of DineshKumar Gupta v. United India Insurance Company Limited and Others (2010) 12 SCC 770 : LNIND 2010 SC 976 : (2011) 4 MLJ 683 , submitted that Contempt Jurisdiction is an extraordinary jurisdiction intended to upheld the majesty of law and cannot be exercised in a routine or casual manner. Hence, the order of punishment is liable to be set aside. 7. Hence, the order of punishment is liable to be set aside. 7. Per contra, the learned counsel appearing for the first respondent/plaintiff submitted that it is incorrect to state that no sufficient proof was produced before the Court below to prove the contempt committed by the appellant. The learned counsel appearing for the first respondent further submitted that the Court below has granted 15 days time to the appellants to pay the penalty amount of Rs. 5,000/- each. But, without complying with the said order the appellants/defendants have filed the present appeal after the expiry of 15 days from the date of order, which would show that the appellants have not cared to comply with the order passed by the Court below. If the order of injunction is violated, that violation has to be dealt with sternly and seriously, the Court below by considering the contempt application on merits, has passed an order. Therefore, the same has to be sustained. In support of his contention the learned counsel appearing for the first respondent relied upon the judgment in the case of KochiraKrishnan v. Joseph AIR 1986 Ker 63 . 8. Heard the learned counsel appearing on either side and I have perused the entire materials available on record. 9. It is the case of the appellants/defendants that the suit schedule property belongs to them and they are in a possession and enjoyment of the suit property and already a superstructure was in existence in the suit property. According to the first respondent/plaintiff she had purchased the suit property from one T.A. Ramachandran and others. Both of them are claiming the ownership over the suit schedule property. But, it is an admitted fact that the possession of the property was only with the appellants/defendants. One of the prayers in the plaint filed by the first respondent is for mandatory injunction directing the defendants to deliver vacant possession of the entire suit schedule property after removing the existing super structure. Therefore, from the pleadings it could be understood that already a superstructure is in existence in the suit property. When the suit is ripe for trial, the first respondent/plaintiff has filed an application in I.A. No. 1418 of 2011 alleging that the appellants/defendants by demolishing the Superstructure and reconstructing it. Therefore, from the pleadings it could be understood that already a superstructure is in existence in the suit property. When the suit is ripe for trial, the first respondent/plaintiff has filed an application in I.A. No. 1418 of 2011 alleging that the appellants/defendants by demolishing the Superstructure and reconstructing it. But, on perusal of the affidavit, I find that the first respondent has not given any particulars as to which portion of the property the appellants were demolishing and what was the construction the appellants were carrying on. Only a bald statement was made in the affidavit filed in support of the petition for injunction. After obtaining injunction on 28.1.2011 on 31.1.2011, the first respondent has filed a Contempt Petition stating that the appellants had demolished the superstructure and completed the construction. In support of his statement, only three photographs were produced. Therefore, in my considered opinion, the question that has to be arisen in this appeal is that whether these three photographs are sufficient to come to the conclusion that after obtaining the order of injunction on 28.1.2011, the appellants by demolishing the superstructure completed the reconstruction within two days i.e., before filing the contempt petition on 31.1.2011. In my considered opinion, when the first respondent itself had accepted the superstructure was in existence, she ought to have given particulars in the contempt petition what was the nature of demolition done by the appellants and what was the construction the appellants were made. But, no detailed particular was available in the contempt petition. Moreover, the first respondent has not chosen to adduce evidence with regard to the alleged contempt committed by the appellants. The Court below by merely placing reliance on the photographs has allowed the application. But where as, it is the contention of the appellants that they have not committed any violation of interim order. On the other hand, it is their case due to over flowing of rain water during the rainy sessions, they raised the floor and asbestos roof level in the existing shop. Absolutely, there is no demolition and reconstruction of superstructure of the suit building. On the other hand, it is their case due to over flowing of rain water during the rainy sessions, they raised the floor and asbestos roof level in the existing shop. Absolutely, there is no demolition and reconstruction of superstructure of the suit building. When two versions were placed before the Court below, in my considered opinion, the Court below ought to have taken steps to find out the veracity of the statement made by the first respondent in the contempt petition before punishing the appellants either by recording the evidence or by appointing an Advocate Commissioner to inspect the suit property. Because it is practically impossible for the Court to find out whether really demolition and construction going on or not in the suit building from the mere statements made in the affidavit and also from few photographs. In this regard, it would be useful to refer the judgments relied on by the learned counsel appearing for the appellants in DineshKumar Gupta v. United India Insurance Company Limited and Others (supra), wherein it has held as follows at p. 688 of MLJ: “13. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this Court that contempt of civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the Courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance , howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on Assumption as the , 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before any one can be hauled up for the charge of contempt of a civil nature.” and judgment NazeemaParveen and Others v. A. Zubeidha bee and Another (supra), wherein it has held as follows at p. 1224 of MLJ: “16. The Supreme Court in ChhotuRam v. Urvashi Gulati AIR 2001 SC 3468 : (2001) 7 SCC 530 ), underlined the standard of proof required for the purpose of initiating an action for contempt thus: ‘A contempt of Court is an offence of a Criminal character. A man may be sent to prison for it. It must be satisfactorily proved To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. Where there are two equally consistent possibilities open to the Court, it is not right to held that the offence is proved beyond reasonable doubt. 17. The Supreme Court in Rajesh Kumar Singh v. High Court of Judicature of M.P. Gwalior (2007) 14 SCC 126 : 2007 (9) SCAJ F44 explained the scope of contempt jurisdiction thus at p. 924 of (Crl): “18. This Court has repeatedly cautioned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalise Courts or lowering the authority of Court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved. In Rizwan-ul-Hasanv. Courts should not readily infer an intention to scandalise Courts or lowering the authority of Court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved. In Rizwan-ul-Hasanv. State of U.P. 1953 SCR 581 , this Court reiterated the well settled principle that jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. Of late, a perception that is slowly gaining ground among public is that sometimes, some Judges are showing over sensitiveness with a tendency to treat even technical violations or uninternded acts as contempt. It is possible that it is done to uphold the majesty of Courts, and to command respect. But Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of ‘Power‘. Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court warned that the power of judiciary lies, not in deciding cases, nor in imposing sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man. The purpose of the power to punish for criminal contempt is to ensure that the faith and confidence of the public in administration of justice is not eroded. Such power, vested in the High Courts, carries with it great responsibility. Care should be taken to ensure that there is no room for complaints of ostentatious exercise of power. Three acts, which are often cited as examples of exercise of such power are; (i) punishing persons for unintended acts or technical violations, by treating them as contempt of Court, (ii) frequent summoning of Government officers to Court (to Sermonise or to take them to task for perceived violations); and iii) making avoidable adverse comments and observations against persons who are not parties. It should be remembered that exercise of such power results in eroding the confidence of the public, rather than creating trust and faith in the judiciary. It should be remembered that exercise of such power results in eroding the confidence of the public, rather than creating trust and faith in the judiciary. Be that as it may.” The perusal of the above judgments would show that the Contempt of civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. 10. In this case, I am of the opinion that first of all, the first respondent had failed to establish that there was a willful disobedience of the order dated 28.1.2011 by producing satisfactory evidence. It is no doubt as contended by the learned counsel appearing for the appellants, if an order of injunction is violated, that violation has to be dealt with sternly and seriously. But at the same time, burden lies upon the person to prove the contempt with satisfactory evidence. But in the instant case, absolutely I do not find any satisfactory evidence to come to the conclusion that after the interim injunction, the entire superstructure was demolished and reconstruction was completed by the appellants, as alleged by the first respondent. 11. For the foregoing reasons, the civil miscellaneous appeal is allowed and the order passed by the VI Additional Judge, CityCivil Court, Chennai dated 12.4.2011 made in I.A. No. 1763 of 2011 in O.S. No. 10044 of 2010 is hereby set aside. No costs. Consequently, connected MPs. are closed.