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2014 DIGILAW 1057 (MAD)

P. Sankaran v. R. Somanathan through its Partners

2014-05-22

N.KIRUBAKARAN

body2014
JUDGMENT 1. This Revision has been filed against the Order passed by the Appellate Court dismissing the Contempt Application filed by the Petitioner and setting aside the Order passed against the Respondent for Contempt of Court by imposing a sum of Rs.2,000/- as fine. 2. Father of the Petitioner, one Petchimuthu Asari, was a Tenant in respect of the vacant land in Door No.309, Palayamkottai Road, Tuticorin. The vacant site, originally belonged to Gunavel, under whom the father of the Petitioner became a lessee in the year 1942 and thereafter he put up a shed in the site and was carrying on carpentry work. 3. Subsequently the respondent purchased the property on 27.2.1974 and filed O.S.No.400 of 1974 for ejectment of the father of the Petitioner. In the said Suit, the father of the Petitioner took out an Application in I.A.No.1241 of 1974 under Section 9 of the City Tenants’ Protection Act for a direction to the Respondent/Landlord to sell the Schedule property (vacant site). The said Application was contested by the Respondent and the Trial Court by Order dated 29.9.1975 held that the Petitioner’s father Petchimuthu Asari was entitled to the benefit under the City Tenants’ Protection Act and entitled to purchase the land. 4. A Review Application in I.A.No.1448 of 1975 was filed by the Respondent and the Trial Court reviewed the earlier order and held that the City Tenants’ Protection Act is not applicable to the building put up prior to 25.6.1975, as the said Act was made applicable to Tuticorin Town, only with effect from 25.6.1995. As a result, Section 9 Application filed in I.A.No.1244 of 1974 was dismissed. Against the dismissal of I.A.No.1244 of 1974, C.M.A., No.5 of 1976 was filed and the Appeal was allowed, holding that the Petchimuthu Asari was entitled to the benefit of the Act and remanded the matter to determine the market value of the site payable by Petchimuthu Asari. The said Order passed in C.M.A.No.5 of 1976 was challenged unsuccessfully by the Respondent in C.R.P.No.1118 of 1977 which was dismissed on 6.5.1980. 5. After the demise of Petchimuthu Asari, the Petitioner and the other Legal Heirs were impleaded. Challenging the Order passed in …No.1118 of 1977, the Respondent filed C.A.No.1383 of 1984 before the Hon’ble Supreme Court and the same was dismissed on 14.10.1992. 6. 5. After the demise of Petchimuthu Asari, the Petitioner and the other Legal Heirs were impleaded. Challenging the Order passed in …No.1118 of 1977, the Respondent filed C.A.No.1383 of 1984 before the Hon’ble Supreme Court and the same was dismissed on 14.10.1992. 6. Thereafter, the Petitioner filed I.A.No.1809 of 1994 before the Trial Court claiming that the land in question is a Government Poramboke land and the Petitioner is in possession of the land for more than 30 years and got the title by adverse possession and there was no necessity to deposit the amount towards the value of the site. Subsequently the said Application was dismissed as not pressed. In view of the denial of title of the Respondent by the Petitioner, I.A.No.1241 of 1974 filed under Section 9(1) of the City Tenants’ Protection Act was dismissed by the Trial Court on 25.3.1994. The said Order of the Dismissal was challenged by the Petitioner in C.M.A.No.9 of 1996, which was allowed on 12.9.1996 with a direction to dispose of the I.A.No.1241 of 1974. The order in C.M.A.No.9 of 1996 was challenged in C.R.P.No.2868 of 1996 unsuccessfully by the Respondent and the Revision was dismissed on 12.2.1997. This Court held in the said order that the order that the order of remand was restricted the scope of enquiry and the Petitioner herein is entitled to the benefit of the City Tenants’ Protection Act and only to decide the market value of the property, the remand was made. 7. Thereafter, the Trial Court allowed the I.A.No.1244 of 1974 on 18.7.2001 and determined the market value at Rs.13,058/-, which was directed to be deposited by the Petitioner within one month from 18.7.2001. 8. The order made in I.A.No.1241 of 1974 for selling the vacant site under Section 9 of the City Tenants’ Protection Act was assailed in CMA.No.11 of 2001 by the Respondent and the same was dismissed on 24.1.2002. On Challenge, the said Order was confirmed in CRP.No.1227 of 2002 on 26.2.2003 by this Court. 9. Subsequently the Petitioner took out an Application for amendment of the Decree with regard to the Schedule of property showing that the Petition property is measuring North to South 58.6, “East to West 16.3” totaling 955.18 feet equivalent to 2.19 cents, as the measurement was wrongly given as 47 feet instead of 57 feet, though the description of the boundaries were correctly given. The said Petition was opposed by the Respondents stating that the identical relief was refused in I.A.No.1505 of 1975 in I.A.No.1241 of 1974 and it is barred by res judicata and the claim relating to the same extent made by the Petitioner in O.S.No.602 of 1982 was negatived by this Court in S.A.No.506 of 1989. The Trial Court allowed the said Petition filed by the Petitioner by Order dated 12.4.2002 and held that it is only a clerical mistake and therefore, the amendment was ordered. Against the said Order dated 12.4.2002, the Respondent filed CRP.No.751 of 2002. This Court allowed the CRP taking into consideration of the dismissal of the Suit filed by the Petitioner in O.S.No.602 of 1989 claiming the First Schedule property and the Second Schedule property as necessary for the Petitioner’s beneficial enjoyment of the First Schedule property. By Judgment in S.A.No.506 of 1989 dated 15.9.1989 this Court held that the lease of the Petitioner was in respect of 47 feet North to South alone and not to 58.6 feet. Moreover, the Court also took into consideration the dismissal of the earlier Application by the Trial Court by Order dated 7.11.1975 in I.A.No.1505 of 1975 filed by the Petitioner’s father Petchimuthu Asari for amendment of the same measurement. To review the said Order, the Petitioner preferred a Review Application in Review No.146 of 2002 in C.R.P.No.741 of 2002 and the same was dismissed on 27.6.2003. The Special Leave Petition filed against the said Order was also dismissed on 23.3.2004. 10. Meanwhile on 3.3.2003 the Petitioner filed EP.No.65 of 2005 to execute the Sale Deed in his favour as per Order passed in I.A.No.1241 of 1974 showing measurement as 58.6” North to South, 16.3” East to West. In the said E.P.EA.No.56 of 2006 was filed by the Respondent to send for original documents and the entire case bundles to the file of the Executing Court. The said Petition was allowed on 5.6.2006. Another Application in I.A.No.250 of 2006 was filed seeking direction to the Petitioner to amend the measurements of the Schedule of the property as 47 feet North to South in E.P.No.56 of 2005 as per Order passed in CRP.No.751 of 2002 dated 5.10.2002 and Review Petition No.146 of 2002 dated 27.6.2003. The said Petition was allowed by the Trial Court by Order dated 28.8.2006. 11. The said Petition was allowed by the Trial Court by Order dated 28.8.2006. 11. Meanwhile the Petitioner filed O.S.No.602 of 1982 claiming right to an extent of 58.6 x 16 feet and to a further extent of rear portion and sought for injunction against the Respondent. The said Suit, on contest was decreed on 2.4.1986 and was confirmed in A.S.No.152 of 1987 on 18.1.1989. However, the Second Appeal No.506 of 1989 filed by the Respondent was allowed setting aside the decree of injunction granted in favour of the Petitioner on 15.9.1989. 12. The Respondent also filed O.S.No.584 of 1994 on 1.10.1994 against the Petitioner and two others for permanent injunction restraining them from interfering with the Respondent’s peaceful possession and enjoyment of the Schedule-I property excepting the Second Schedule property. In the said Suit, A.No.1466 of 1994 was filed and an Order of Interim Injunction was obtained against the Petitioner and two others. In O.S.No.584 of 1994, I.A.No.1501 of 1994 was taken out by the Petitioner on 13.8.2004, seeking to punish the Respondent/Tenant contending that the Respondent obtained the Order of Ad-interim Injunction against the Petitioner by misleading the Court and making misrepresentation. The said Petition was filed under Order 39, Rule 2-A and under Section 151 of CPC and the same was allowed holding that the Respondent deliberately misrepresented the Court and obtained the Ad-interim Injunction and was responsible for contempt of Court and directed the Respondents to pay a sum of Rs.2,000/- as fine. 13. The Respondent filed Appeal in C.M.A.No.7 of 2004 against the Contempt Order and the Petitioner filed a cross-Appeal, for enhancement by imprisonment of the Respondent. The Appeal preferred by the Respondent was allowed holding that a person could be punished for disobedience for breach of injunction granted under Order 39, Rules (1) & (2). Whereas, the Respondent only got injunction and therefore, the punishment of Respondent for disobedience did not arise. That apart, the Appellate Court reasoned that the High Court and Supreme Court have ample power to punish the person under Contempt of Courts Act, whereas no such jurisdiction or power is available to be District Munsif and set aside the Order passed in the Contempt Application. The Cross-Appeal filed by the Petitioner was also dismissed. Assailing the said Order dated 10.9.2008 passed by the Appellate Court only, the Petitioner is before this Court. 14. The Cross-Appeal filed by the Petitioner was also dismissed. Assailing the said Order dated 10.9.2008 passed by the Appellate Court only, the Petitioner is before this Court. 14. The Petitioner in person argued that by misrepresentation, the Respondent obtained an Order of Injunction before the Trial Court giving wrong measurements of the property and after obtaining injunction, the Respondent damaged the property of the Petitioner and constructed a wall blocking the Petitioner’s pathway to Pillaiyarkoil street. A Criminal Complaint was already given and the Respondents were fined in the Criminal proceedings. The Respondent trespassed into the property in possession of the Petitioner measuring about 58 1/2 & 16 1/4 building bearing Door No.309, Pillaiyarkoil street after obtaining Interim Injunction by wrong statement by including the Petitioner’s property along with the Respondent’s property. Therefore, the Trial Court came to the conclusion that the Respondent liberally misrepresented and obtained the Interim injunction and committed contempt of Court. On wrong appreciation, the Appellate Court set aside the Order. Hence, he seeks to set aside the Appellate Court order. 15. Mr. Prabu Rajadurai, learned Counsel appearing for the Respondent would submit that the Appellate Court allowed the Appeal reasoning that the Civil Court has got no jurisdiction to exercise the power under the provision of Contempt of Courts Act. He would also refer to the provisions of the said Act to point out that the Constitutional Courts alone have got power under the Contempt of Courts Act. Therefore, he seeks dismissal of the CRP. 16. Heard the parties and perused the records. The case of the Petitioner is that he is in possession and enjoyment of the property to an extent of 58 1/2 x 16 1/4 feet. On 9.10.1994 at mid night, the Respondent induced one Perumal and others to trespass into the Petitioner’s property through backyard and break open the door and attempted to construct a wall. Immediately the Petitioner lodged a Complaint with the Police and sent a telegram. During Police verification, the Respondent stated that he obtained Orders in O.S.No.584 of 1994. On the same day, the Respondent along with their men trespassed into the Petitioner’s property, damaged the doors, wooden rafters and tiles and stolen the articles and constructed a wall, thereby blocked the Petitioner’s way to Balavinayagar Kovil Street. The Petitioner contended that the extent is only 58 1/2 x 16 1/4 feet. On the same day, the Respondent along with their men trespassed into the Petitioner’s property, damaged the doors, wooden rafters and tiles and stolen the articles and constructed a wall, thereby blocked the Petitioner’s way to Balavinayagar Kovil Street. The Petitioner contended that the extent is only 58 1/2 x 16 1/4 feet. Whereas the Respondent contended that the extent is only 47 x 15 feet. The Respondent filed O.S.No.584 of 1994 and obtained an Order of Interim Injunction against the Petitioner showing two Schedules which descriptions are as follows: “Schedule-I Tuticorin Municipal limits, Palayamkottai Road T.S.No.1400/1, Old Ward No.2, New Ward No.4. Old Block No.15 measuring 65.4 North to Sought and 52 1/2 feet East to West, which is more particularly shows as A B C D in the Rough Plan annexed to this Plaint. Schedule-II The portion in the First Schedule measuring North Sought 47 fee East to West 15 feet in T.S.No.1400/1 in Palayamkottai Road, Tuticorin – marked as E B G F in the Plan annexed to the Plaint.” In the Affidavit filed for injunction, it is alleged that the Petitioner and others were attempting to encroach upon the south side i.e. beyond 45 feet North to South of their site i.e. the Second Schedule property. A close scrutiny of the Schedule shown in the Affidavit would indicate that the Respondent had shown only Schedule-1 property of the Suit alone in the Schedule of the Injunction Application and obtained Interim Injunction. The said fact of showing the First Schedule alone in the Injunction Application and obtaining injunction is held by the Trial Court as deliberate misrepresentation so as to obtain Interim Injunction. The Trial Court also took note of the fact of obtaining injunction against the entire property and thereafter filing Amendment Application by the Respondent for excluding the Petitioner’s property contending that it is a simple typographical error and held it as an abuse the process of law. The reasoning given by the Trial Court is correct and cannot be set aside. 17. When their earlier proceedings with regard to the extent of the property are pending the Respondent cannot simply include the Petitioner’s property with that of the Respondent’s property and show a single Schedule in the Injunction Application and obtain an Order of Injunction. The reasoning given by the Trial Court is correct and cannot be set aside. 17. When their earlier proceedings with regard to the extent of the property are pending the Respondent cannot simply include the Petitioner’s property with that of the Respondent’s property and show a single Schedule in the Injunction Application and obtain an Order of Injunction. The said act should be with the ulterior motive and by any stretch of imagination, it can be ignored as if it is a typographical error by the Respondent. The inclusion of Petitioner’s property with the Respondent’s property is only to give wrong description about the property and to get Interim Injunction against the Petitioner so as to take advantage of the said Interim Injunction against the Petitioner so as to take advantage of the said injunction in their favour to trespass into the Petitioner’s property. The Trial Court rightly relying upon the Judgment in Naraindar v. Govt. of M.P. and others, AIR 1974 SCC 1252, which declared that a wrong misleading submission deliberately and wilfully made by a party to a litigation with a view to obtain favourable Order, which would prejudice or interfere with due course of Court proceedings amounting to Contempt of Courts Act and rightly came to the conclusion that the Respondent deliberately mis-represented the Court and obtained an Ad-interim Injunction. 18. The Trial Court held that after obtaining the Order of Injunction, the Respondent tried to cause destruction to the Petitioner’s property and constructed a wall blocking the way to Pillaiyarkoil Koil Street. A Police Complaint was lodged and a Telegram was also sent to the Municipality by the Petitioner, which are proved by Exs.P16 to 36 and Ex.B46 to 51. That apart, Criminal proceedings were initiated against the Respondent in S.C.4460 & 4461 of 1994 and fine of Rs.400/- was imposed on the Respondent as evident by Ex.47 to the Criminal Court Judgment. The Trial Court found that the Respondent constructed a wall blocking the Petitioner’s way to Pillaiyarkoil Street. The Commissioner appointed by the Trial Court also proved that the construction in southern side was removed and a wall was nearly constructed. Therefore, it is proved by documents and also by Commissioner’s Report that the Respondent trespassed into the Petitioner’s property and damaged the Petitioner’s construction and blocked the way to Pillaiyarakoil Street after obtaining Interim Injunction which was obtained giving wrong details. Therefore, it is proved by documents and also by Commissioner’s Report that the Respondent trespassed into the Petitioner’s property and damaged the Petitioner’s construction and blocked the way to Pillaiyarakoil Street after obtaining Interim Injunction which was obtained giving wrong details. Hence, the Trial Court Order is correct. 19. The Trial Court observed even if the Petitioner is having 47 feet x 15 feet extent of property, it does not mean that the Respondent could illegally trespass into the Petitioner’s property and cause damage. Therefore, the Trial Court rightly found that by giving wrong details about the property, the Respondents obtained an Interim Order and misusing the said injunction, the Petitioner’s property was trespassed and damaged by the Respondents and the Petitioner’s way to the Pillaiyar Koil Street was blocked by constructing a new wall on the Southern side. Therefore, the Trial Court held that even if there is no injunction in favour of the Petitioner so as to order under Order 39, Rules 1 & 2, it will not bar for invoking the Contempt of Court Act. The approach of the Trial Court needs to be appreciated. It is not only violation of the Court Order but also obtaining of order by misrepresentation and false submissions of facts before the Court would be Contempt of Court. In this case, the Respondent misrepresented and obtained Interim Order. Though it would not come under Order 39, Rules 1 & 2, the Trial Court is justified holding that the Petition should be treated as one filed under Contempt of Courts Act and held Respondents are liable to pay fine. The approach by the Trial Court is correct and it is a different matter whether Trial Court has got powers to invoke provisions of Contempt of Courts. 20. No doubt, the Trial Court invoked the provisions of Contempt of Court Act. It cannot be invoked by the Civil Court as the power is only available to the Constitutional Courts like High Court and Supreme Court, as rightly pointed out by the learned Counsel for the Respondent. However, it does not mean that the party, who abused the process of law should be let of free for his act under the guise of loop holes in the Act. However, it does not mean that the party, who abused the process of law should be let of free for his act under the guise of loop holes in the Act. Even if the Contempt of Courts Act are not applicable, then the inherent power under Section 151, C.P.C. can be invoked by the trial Court to punish the abuser of Court of law. Section 151, C.P.C. reads as follows: “Section 151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” The Hon’ble Supreme Court in Padam Sen and another v. The State of Uttar Pradesh, AIR 1961 SC 218 , held that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code of Civil Procedure. In Manohar Lai Chopra v. Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , it has been held that the powers conferred under the Code of Civil Procedure are complementary to the inherent powers already available as mentioned under Section 151 of the Code of Civil Procedure. If Order 39, Rule 2(a) is available for the persons, who got Injunction Order, Section 151 can be invoked by the Courts to punish, those who abused and misused the process of Court by misrepresentation by wrong facts. Consequent to obtaining orders by wrong facts or misrepresentation with ulterior motive in their favour, if one party causes injustice or infringes or violates the rights of others, the inherent power given under Section 151, C.P.C. can be invoked to do complete justice. When no other provisions are available, Section 151, C.P.C. can be invoked to prevent the abuse of process of law. Section 151 of CPC gives inherent powers to the Civil Court to pass such order as may be necessary for the ends of justice to prevent abuse of process of the Court. Section 151 is the reservoir of powers available to the Civil Court, to be used, if no other specific provision is available in the Code. The case on hand falls with in the four corners of Section 151 of the C.P.C. viz. to prevent the abuse of the process of law. Section 151 is the reservoir of powers available to the Civil Court, to be used, if no other specific provision is available in the Code. The case on hand falls with in the four corners of Section 151 of the C.P.C. viz. to prevent the abuse of the process of law. Therefore, the respondents have to be punished invoking powers under Section 151 of the C.P.C. for obtaining the Interim Order by mis-representation by giving and false facts and misusing Injunction Order to damage the Petitioner’s property which is proved by documents including the Advocate Commissioner’s Report. Therefore, the Appellate Court without adverting the above said proved facts, went on only by technicality that the Civil Court has got no jurisdiction to invoke Contempt of Court Act and wrongly set aside the said Order. The Order of the Appellate Court is erroneous and the same is set aside. 21. The learned District Munsif in her jealous to do justice tried to invoke Contempt of Courts Act. Though the said attempt is not supported by law, it has to be appreciated. The District Munsif did endeavour to render justice and it needs to be applauded. 22. Only a sum of Rs.2,000/- was awarded as fine by the Trial Court. Violating the Court Order, misrepresentation of facts and obtaining Orders with ulterior motive and misusing the same deliberately for unlawful gain or to infringe the rights of others have become more and common nowadays. No one should be allowed to misuse and abuse the process of Court as granted for doing illegal act through lawful means. This kind of approach by the litigants should be curtailed and the said acts should be deprecated, failing which the process of Court would land in the hands of wrong doers and it will not be in the interest of justice. 23. For the above reasons, the Appellate Court order is set aside and the CRP filed by the Petitioner is allowed. This Court finds the amount awarded is low and enhances the fine awarded by the Trial Court from Rs.2,000/- to Rs.50,000/-which amount shall be paid to the Petitioner within two weeks from the date of receipt of a copy of this order.