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2012 DIGILAW 771 (MAD)

Lakshmanan v. S. Kasthuri Sumathi

2012-02-13

S.TAMILVANAN

body2012
JUDGMENT 1. This Contempt Petition has been filed under Sections 11 & 12 of Contempt of Court Act, 1971, seeking an order to punish the Respondents for willful disobedience of the order passed by this Court, dated 28.04.2011, in M.P.No.1 of 2011 in CRP (NPD) SR. No.38111 of 2011. 2. The Petitioners have submitted that the Respondents herein, who were the Petitioners in CRP (NPD) SR.No.38111 of 2011 have committed willful disobedience of the order, dated 28.04.2011 passed by this Court in M.P.No.1 of 2011, in the aforesaid unnumbered Civil Revision Petition filed by them and violated their undertaking given by way of filing undertaking affidavit before this Court. 3. It is an admitted fact that the Suit in O.S.No.1043 of 1988 on the file of the District Munsif Court, Poonamallee had been filed seeking declaration of title of the schedule mentioned property therein and for recovery of possession of the same and the suit was decreed on 27.04.2005. The first Contemnor, Kasthuri Sumathi was arrayed as Fifth Defendant in the Suit and the Second Contemnor, Adhikari Shanthamma was figured as 14th defendant. Aggrieved by the Judgment and Decree, Appeal was preferred in A.S.No.67 of 2009 on the file of the Sub-Court, Poonamallee. The aforesaid Appeal was preferred by the Contemnors 1 & 2 and three others. Confirming the Judgment and Decree rendered by the Trial Court, the said First Appeal in A.S.No.67 of 2009 was dismissed on 11.03.2010. Pursuant to the Judgment and Decree, that was confirmed by the Appellate Court, the decree-holder filed Execution Petition in E.P.No.102 of 2005 for implementation of the decree for delivery of possession of the property. At this stage, Execution Application in E.A.No.28 of 2007 was filed in the Execution Petition in E.P.No.102 of 2005, under Section 47, C.P.C., questioning the execution of the decree passed in the Suit in O.S.No.1043 of 1988 and the said Execution Application filed under Section 47, C.P.C. was dismissed on 16.02.2008. 4. The Second Appeal in S.A.No.510 of 2010 was filed by the judgment-debtors against the concurrent findings of the Courts below made in the Suit in O.S.No.1043 of 1988 and Appeal in A.S.No.67 of 2009. The Second Appeal preferred by the Respondents herein was dismissed by this Court on 29.06.2010 on merits. 4. The Second Appeal in S.A.No.510 of 2010 was filed by the judgment-debtors against the concurrent findings of the Courts below made in the Suit in O.S.No.1043 of 1988 and Appeal in A.S.No.67 of 2009. The Second Appeal preferred by the Respondents herein was dismissed by this Court on 29.06.2010 on merits. However, a Miscellaneous Petition in M.P.No.1 of 2011 in C.R.P.(NPD) SR.No.38111 of 2011 was filed as against the order passed in E.A.No.28 of 2007 with the delay of 903 days in preferring the Civil Revision Petition and Stay Petition was also filed against the Execution Proceeding. The Petition seeking an order to condone the delay of 903 days was also dismissed on merits, after hearing both sides. The Contemnors/Respondents herein, then filed an undertaking Affidavit, whereby agreed voluntarily to deliver the vacant possession of the suit property in their occupation, without any obstruction, in the event of the Special Leave Petitions preferred by them being dismissed by the Hon’ble Apex Court. Admittedly, no stay was granted by the Hon’ble Apex Court in favour of the Contemnors/Respondents. 5. However, in order to provide an opportunity, based on the undertaking Affidavit filed by the Contemnors/Respondents, the Petitioners/decree-holders were directed by this Court not to pressurize the Execution Petition pending before the Executing Court till 16.06.2011. The Executing Court was also directed not to execute the warrant till 08.08.2011, so as to provide fair and reasonable opportunity to the Respondents/Contemnors, though there was an inordinate delay of 903 days caused by them in preferring the Revision against the order of dismissal passed in E.A.No.28 of 2007. 6. It is seen that Special Leave Petitions in SLP No.23354 of 2011 and SLP No.21082 of 2011 had been preferred as against the dismissal of the S.A.No.510 of 2010 and the dismissal of the C.R.P.No.2471 of 2011 respectively were dismissed. Subsequently, Review Petitions in Rev Petition No.74 of 2012 and Rev. Petition No.2644 of 2011 were also filed against the dismissal of the Special Leave Petitions in SLP.No.23354 of 2011 and SLP.No.21082 of 2011 by the Contemnors/Respondents. On 01.02.2012, the said Review Petitions were also dismissed by the Hon’ble Supreme Court. Though the Special Leave Petitions and subsequent Review Petitions were dismissed by the Hon’ble Apex Court, the Respondents/Contemnors have not vacated and handed over the possession of the property, as per their own undertaking Affidavit filed before this Court. 7. On 01.02.2012, the said Review Petitions were also dismissed by the Hon’ble Supreme Court. Though the Special Leave Petitions and subsequent Review Petitions were dismissed by the Hon’ble Apex Court, the Respondents/Contemnors have not vacated and handed over the possession of the property, as per their own undertaking Affidavit filed before this Court. 7. In the aforesaid circumstances, the Petitioners/decree-holders have filed the Contempt Petition in Cont.P.No.1883 of 2011, wherein notice was ordered to the Respondents. Though notice was served on both the Respondents, the First Respondent appeared in person on 20.01.2012 and the Second Contemnor failed to appear, in spite of service of notice, hence Bailable Warrant was issued against the Second Contemnor and the matter was posed to 09.02.2012 for the appearance of both the Contemnors. However, on 09.02.2012, both the Contemnors were called absent and there was no representation for the Respondents/Contemnors. 8. Mr. V. Nandakumar, learned Counsel appearing for the Petitioners submitted that though the Suit in O.S.No.1043 of 1988 on the file of the District Munsif Court, Poonamallee was decreed in favour of the Petitioners herein by the Trial Court and confirmed by the Appellate Court in A.S.No.67 of 2009 on the file of the Sub-Court, Poonamallee, after filing of the Execution Petition, Execution Application in E.A.No.28 of 2007 was filed under Section 47, C.P.C. by the Respondents herein, based on unsustainable grounds. However, the said Execution Application was dismissed. Subsequently, Second Appeal preferred by the Respondents in S.A.No.510 of 2010 was also dismissed by this Court on 29.06.2010. On the said circumstances, the Respondent herein filed the unnumbered Civil Revision Petition in CRP (NPD) SR. No.38111 of 2011 with a delay of 903 days in preferring the said CRP, only with a view to protract the Execution proceedings and the same was also dismissed by this Court. However, without getting any stay from the Hon’ble Apex Court, they sought stay of the EP proceeding, in view of the pendency of the SLP preferred by them. In order to provide reasonable opportunity to the Contemnors/Respondents, considering the undertaking Affidavit filed by them, to vacate and hand over the possession of the property, this Court directed the Executing Court not to execute the warrant till 08.08.2011. In order to provide reasonable opportunity to the Contemnors/Respondents, considering the undertaking Affidavit filed by them, to vacate and hand over the possession of the property, this Court directed the Executing Court not to execute the warrant till 08.08.2011. However, in spite of the dismissal of the Special Leave Petitions and the Review Petitions, the Contemnors/Respondents have not vacated and handed over the possession, as per their own undertaking Affidavit, voluntarily filed by them, which amounts to violation of the undertaking given by them and disobedience of the order passed by this Court. With the above pleadings, Mr. V. Nandakumar, learned Counsel appearing for the Petitioners pleaded to take contempt action against the Contemnors/Respondents, as per law. In support of his contention, the learned Counsel appearing for the Petitioners relied on the following decisions: 1. Rama Narang v. Ramesh Narang and another, 2006 (2) CTC 691 (SC) 2. Bank of Baroda v. Sadruddin Hasan Daya and another. 9. The Hon’ble Supreme Court of India in Contempt Petition No.180 of 2001 in Civil Appeal No.4138 of 1999 reported in Bank of Baroda v. Sadruddin Hasan Daya and another, has held that breach of undertaking given to Court amounts to contempt under Section 10 and Section 12 of Contempt of Court Act. For initiating Contempt proceedings, the violation or breach of the undertaking became part of the decree of the Court and which certainly amounts to contempt of Court, irrespective of the fact that it is open to the decree holder to execute the decree. 10. It is a well settled proposition of law that contempt is a matter between the Court and the alleged Contemnor. However, taking action against the Contemnor will not affect the rights of the other party, who has been affected by the contempt. In the aforesaid decision, the Hon’ble Apex Court has held as follows: “12... The willful breach of an undertaking given to a Court amounts to ‘Civil contempt’ within the meaning of Section 2(b) Contempt of Courts Act. The Respondents having committed breach of the undertaking given to this Court in the consent terms filed on 28.7.1999, they are clearly liable for having committed contempt of Court. The fact that the Petitioner can execute the decree can have no bearing on the contempt committed by the Respondents…” 11. The Respondents having committed breach of the undertaking given to this Court in the consent terms filed on 28.7.1999, they are clearly liable for having committed contempt of Court. The fact that the Petitioner can execute the decree can have no bearing on the contempt committed by the Respondents…” 11. While deciding the aforesaid Contempt Petition, the Supreme Court has also referred the law in England and the legal consequence of breach of undertaking given to Court, referring Halsbury’s Laws of England, Volume 9(1), 482, wherein it has been stated as follows: “An undertaking given to the Court in pending proceedings by a person or corporation (or by a Government Department or Minister of the Crown acting in his official capacity) on the faith of which the Court sanctions a particular course of action or inaction, has the same force as an injunction made by the Court and a breach of the undertaking is misconduct amounting to contempt.” 12. The Hon’ble Supreme Court in another contempt case in Contempt Petition (Civil) 138 of 2003 in Contempt Petition Nos.265-267 of 1999 in Contempt Petition No.209 of 1998 in Civil Appeal No.366 of 1998, reported in Rama Narang v. Ramesh Narang and another, 2006 (2) CTC 691 (SC), while dealing with breach of undertaking, convicted the Contemnors therein under Section 2(b) of the Contempt of Court Act and sentenced them to undergo Simple Imprisonment for a period of two months and also imposed a fine of Rs.2,000/- with default sentence. 13. In Noorali Babu Thanewala v. K.M.M. Shelly and others, 1990 (1) SCC 259 , the Hon’ble Apex Court has ruled as follows: “When a Court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of undertaking given to the Court by or on behalf of a party to a Civil proceedings is, therefore regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a Court by a person in a Civil proceeding on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt.” 14. It has been made clear by the learned Counsel appearing for the Petitioners that this Court had accepted the undertaking Affidavit filed by the Contemnors/Respondents herein and granted time, in order to provide reasonable opportunity to the Contemnors/Respondents, so as to seek remedy in the Special Leave Petitions filed by them before the Hon’ble Apex Court. In spite of the dismissal of the Special Leave Petitions and the subsequent Review Petitions, the Respondents have not vacated and handed over the possession of the property and willfully disobeying the order of this Court. In the light of decisions rendered by the Hon’ble Apex Court, referred to above by the learned Counsel for the Petitioners, it is crystal clear that the act of the Contemnors/Respondents is nothing but a willful disobedience of the order passed by this Court and also violation of their own undertaking given before this Court, by way of filing an undertaking Affidavit. 15. On the aforesaid facts and circumstances, I am of the view that it is the paramount duty of this Court to uphold the majesty of the Constitutional mandate and “Rule of Law”, by preventing abuse of process of law and Court, in order to meet the ends of justice. 16. As submitted by the learned Counsel appearing for the Petitioners, it is made clear that for about 24 years, the Respondents are protracting the matter and preventing the Petitioners right in taking over the possession of the property. It cannot be disputed that every one is entitled to defend a case in the manner known to law. However, after the dismissal of the Execution Application in E.A.No.28 of 2007 filed under Section 47, C.P.C. on 16.02.2008 and the dismissal of S.A.No.510 of 2010 on 29.06.2010, there was no legal defence available in favour of the Contemnors/Respondents. It cannot be disputed that every one is entitled to defend a case in the manner known to law. However, after the dismissal of the Execution Application in E.A.No.28 of 2007 filed under Section 47, C.P.C. on 16.02.2008 and the dismissal of S.A.No.510 of 2010 on 29.06.2010, there was no legal defence available in favour of the Contemnors/Respondents. The unnumbered Civil Revision Petition in CRP (NPD) SR.No.38111 of 2011 was filed admittedly with a delay of 903 days and the same was also dismissed by this Court. However, considering the pendency of the Special Leave Petitions, only on the undertaking Affidavit filed by the Contemnors/Respondents, in order to provide an opportunity, this Court showed leniency to the present Contemnors/Respondents and accordingly, asked the Petitioners herein not to pressurize the E.P. till 16.06.2011 and also directed the Executing Court not to execute the warrant till 08.08.2011. It is unfortunate that the Respondents are abusing the leniency of the Court, even after the dismissal of the Special Leave Petitions and the Review Petitions filed by them. 17. In this Contempt Petition, in spite of service of notice to both the Contemnors/Respondents, there was no representation for the Respondents/Contemnors on 09.02.2012 and the Contemnors were also called absent. Hence, this Court is of the view, to meet the ends of justice to issue Non-Bailable warrant against the Respondents 1 & 2 to secure their presence before this Court on 20.02.2012 for taking action for the contempt committed by them. 18. It is a settled proposition of law that as per Article 227 of the Constitution of India, this Court is empowered with the extraordinary jurisdiction and power of superintendence over all Courts and Tribunals throughout the territories in relation to which, this Court exercises jurisdiction, in order to meet the ends of justice and to prevent abuse of process of the Court. When there is willful disobedience of the order passed by this Court or contempt committed by a party, the Court shall not be a silent spectator. In Ouseph Mathai v. M. Abdul Khadir, AIR 2002 SC 110 , the Hon’ble Apex Court has held that exercise of power under Article 227 may be necessary, if it is shown that grave injustice has been done to a party in a case, to meet the ends of justice. 19. In Ouseph Mathai v. M. Abdul Khadir, AIR 2002 SC 110 , the Hon’ble Apex Court has held that exercise of power under Article 227 may be necessary, if it is shown that grave injustice has been done to a party in a case, to meet the ends of justice. 19. In the instant case, the Judgment and Decree passed by the Trial Court in O.S.No.1043 of 1988, dated 27.04.2005 were admittedly reached the finality. However, the Contemnors, in spite of their undertakings given before this Court, by way of filing Affidavit, are wilfuly disobeying the orders passed, by violating their own undertaking given before this Court. It is crystal clear that the Petitioners, being the decree-holders are entitled to enjoy the fruits of the decree by executing the decree and the deliberate disobedience of the Contemnors/Respondents has no justification, which is nothing but a clear abuse of process of the Court. However, for the wilful disobedience of the order passed by this Court, punishing the Contemnors alone would not be sufficient for the decree-holders, to meet the ends of justice, hence, this Court has to exercise the extraordinary power conferred under Article 227 of the Constitution and accordingly, the Executing Court is directed to pass appropriate orders forthwith, as per the decree, which has reached finality in favour of the Petitioners/decree-holders. 20. In the result- (i) The Executing Court, District Munsif Court, Poonamallee is directed to pass appropriate orders forthwith, to hand over the possession of the property to the Petitioners/decree-holders, as per the decree passed in O.S.No.1043 of 1988 by the said Court on 27.04.2005, as the same has reached finality, through Senior Bailiff/Ameen or any others competent officer of the Court below, with Police aid, without causing any delay and the Court below shall also report the compliance of this order to the Registrar-General of this Court after the compliance of this order; and (ii) Non-Bailable Warrant is issued against the Contemnors 1 & 2/Respondents herein and the Commissioner of Police, Chennai is directed to secure the presence of the Contemnors/Respondents 1 & 2 through the concerned Police Inspector and produce the Contemnors/Respondents before this Court on 20.02.2012 at 10.30 a.m. for their wilful disobedience and the contempt committed by them.