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2014 DIGILAW 1798 (MAD)

P. K. Ramakrishnan v. Narayana Nadar

2014-06-30

M.DURAISWAMY

body2014
JUDGMENT 1. Heard Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioner and Mr.P.Vallinayagam, learned Senior Counsel appearing for the respondent. 2. “Abuse of process of the Court is the attitude of the contemnor in this contempt petition. 3. The petitioner has filed the above contempt petition to punish the respondent for violating the undertaking given by him before this court in the Second Appeal No.330 of 2011. 4. The petitioner filed the suit in O.S.No.248 of 2012 subsequently renumbered as O.S.No.317 of 1996 on the file of District Munsif Court, Udumalpet for the following reliefs:- (i) to direct the defendants to deliver possession of the suit property; (ii) to direct the defendants to pay a sum of Rs.15,000/- as damages for use and occupation; (iii) for mandatory injunction directing the defendants to remove the superstructure before delivery of possession of the properties and to determine the future damages; and (iv) to direct the defendants to pay the same from the date of suit till the date of delivery of possession to the plaintiff. 5. The suit was decreed as prayed for by the Trial Court on 31.3.2008. The respondent preferred an appeal in A.S.No.12 of 2010 on the file of Sub Court, Udumalpet and the Lower Appellate also confirmed the judgment and decree of the Trial Court and dismissed the appeal. 6. Aggrieved over the judgments and decrees of the Courts below, the respondent preferred the Second Appeal in S.A.No.330 of 2011 before this Court and this Court, by order dated 1.4.2011 dismissed the Second Appeal and confirmed the concurrent findings of the Courts below. While dismissing the Second Appeal, this Court granted six months time to the respondent to vacate and hand over vacant possession after removal of the superstructure to the plaintiff and to that effect the first defendant filed an affidavit of undertaking as directed by this Court. In the affidavit of undertaking, in paragraph Nos.3 and 4, the respondent has stated as follows:- “3. At the time of dismissing the second appeal this Hon'ble Court was pleased to grant a time of six months for the appellant to vacate the premises. It also directed the appellant to file an affidavit to that effect within 3 weeks. Hence I am filing this affidavit in due obedience to the order of this Hon'ble Court. 4. At the time of dismissing the second appeal this Hon'ble Court was pleased to grant a time of six months for the appellant to vacate the premises. It also directed the appellant to file an affidavit to that effect within 3 weeks. Hence I am filing this affidavit in due obedience to the order of this Hon'ble Court. 4. I hereby undertake that after completion of six months, i.e., on or before 1.10.2011, I will remove all the materials from the suit property and vacate the premises and the same may be recorded on the file of this Hon'ble Court. In the affidavit of undertaking, he has specifically undertook to remove all the materials from the suit property and vacate the premises on or before 1.10.2011. Thereafter, on the application made by the respondent, this Court extended the time to remove the superstructure and vacate the suit property till 31.12.2011. But, contrary to the undertaking given by him in the affidavit, he failed to vacate the premises and instead he filed a petition under section 47 of the Civil Procedure Code in the Execution Petition in E.P.No.67 of 2008 filed by the petitioner. In these circumstances, the petitioner filed the above Contempt Petition to punish the respondent for violating the undertaking given before this Court in the Second Appeal. 7. In the counter affidavit filed by the respondent/contemnor, he took a new stand by stating that he is in possession of only 5 cents of land in S.No.155. He further stated that if the petitioner demarcates that portion of 5 cents, he is willing to hand over the same to him. 8. It is clear from the counter affidavit filed by the respondent in the Contempt Petition that the respondent has taken a different and completely new stand which was not taken earlier by him either in the suit or in the first appeal or in the second appeal. That apart, this Court confirmed the judgments and decrees of the Courts below and granted six months time to him to vacate and hand over possession of the suit property after removing the superstructure. This is also supported by the affidavit of undertaking given by the respondent in the Second Appeal wherein he undertook to vacate the suit property within six months after removing the superstructure. 9. On 02.04.2014, this Court ordered statutory notice to the respondent. This is also supported by the affidavit of undertaking given by the respondent in the Second Appeal wherein he undertook to vacate the suit property within six months after removing the superstructure. 9. On 02.04.2014, this Court ordered statutory notice to the respondent. When the matter was listed on 30.4.2014, the Contemnor was present and after hearing the arguments advanced by either side when this Court was about to pass orders, learned Counsel appearing on behalf of the Contemnor submitted that the Contemnor is willing to hand over vacant possession of the suit property in Survey No.155, which is in his occupation, after removing all the materials from the suit property on or before 07.05.2014. 10. The petitioner filed an affidavit dated 16.06.2014, wherein he has stated that on 07.05.2014 in the presence of Land Surveyor, Udumalpet Town along with the Village Administrative Officer, Udumalpet and the Taluk Sub Inspector, the Contemnor handed over possession of the suit property in his possession to the petitioner. Further, in the affidavit he has stated that the Contemnor had informed the petitioner that he will take possession of the machineries after some time from the suit properties. The petitioner also mentioned the list of machineries and other items which were available in the suit property. 11. Apart from that the petitioner had also stated that one Dhandapani had filed Sub Application No.286 of 2013 in the above Contempt Petition stating that he is in possession of 1918 sq.ft. of land which is also sought to be taken possession by the petitioner. It is also not in dispute that in respect of the said extent of land, the said Dhandapani had filed a suit in O.S.No.518 of 2012 on the file of District Munsif Court, Udumalpet and the same is pending. The petitioner had also filed a suit in O.S.No.246 of 2012 on the file of Sub Court, Udumalpet and the same is also pending. Further the petitioner reserved his right to recover the said extent of 1918 sq.ft. from the said Dhandapani. The petitioner had also filed a suit in O.S.No.246 of 2012 on the file of Sub Court, Udumalpet and the same is also pending. Further the petitioner reserved his right to recover the said extent of 1918 sq.ft. from the said Dhandapani. However, when the matter was taken up for hearing on 26.6.2014, the learned counsel appearing for the petitioner in the said Sub Application submitted that the petitioner in the said Sub Application, viz., Dhandapani had measured the extent of the land, which was taken possession by the petitioner in the Contempt Petition, and found that his land did not fall within the extent of the said land. Therefore, the learned counsel sought the permission of this court to withdraw the said Sub Application filed by him, therefore, the Sub Application was dismissed as withdrawn on 26.06.2014. 12. Mr.Vallinayagam, learned Senior Counsel appearing on behalf of the Contemnor submitted that on 7.5.2014, the petitioner had taken a larger extent of land which was in possession of the Contemnor. The learned Senior Counsel submitted that the Contemnor was in possession of the land belonging to one Sundararajan and that the petitioner had taken possession of the said land also on 7.5.2014. 13. The case of the Contemnor cannot be believed for the reason that, had the petitioner taken possession of the land belonging to Sunderarajan on 7.5.2014, the alleged owner of the land viz., Sunderarajan would have approached this court for getting back possession of his property. But he has not taken any steps for recovering the possession of the property from the petitioner. That apart, the petitioner cannot speak on behalf of others and say that the other person's property was also taken possession by the petitioner. Above all, the case now set up by the Contemnor are raised for the first time in the entire proceedings, that too, in the contempt petition. The contemnor having suffered a decree before the Courts below, which was also confirmed by this court in the Second Appeal, cannot take contrary stand in the Contempt Petition. It is needless to say that the only question that should be taken into consideration in the Contempt Petition is whether the respondent/contemnor had obeyed the orders of this Court or not. Though the second appeal was disposed of on 01.04.2011, the contemnor had successfully dragged on the matter for three long years. 14. It is needless to say that the only question that should be taken into consideration in the Contempt Petition is whether the respondent/contemnor had obeyed the orders of this Court or not. Though the second appeal was disposed of on 01.04.2011, the contemnor had successfully dragged on the matter for three long years. 14. It is pertinent to note that before the Trial Court, an Advocate Commissioner was appointed in I.A.No.891 of 2004 in I.A.No.1161 of 1996 in O.S.No.317 of 1996 for inspecting and measuring the suit property. Accordingly, Advocate Commissioner measured the suit property and filed his report. In his report, Advocate Commissioner found that the suit property measures an extent of 13,300 sq.ft. For the Advocate Commissioner's report, the contemnor had also filed his objections, wherein he has not whispered a single word disputing the extent of the land. In his objection, he has stated only about the value of the land. That apart, in his proof affidavit filed in the suit in O.S.No.317 of 1996, the contemnor had stated that he is in possession of 34 cents of land and the other defendants are occupying the land out side the extent of his 34 cents. Further, he has admitted that the extent mentioned in the Advocate Commissioner's report is correct. Having admitted that he is in possession of 34 cents of land and also admitted the extent of land found by the Advocate Commissioner i.e., 13,300 sq.ft. as correct, the contemnor is taking a different stand in the contempt petition contrary to the proof affidavit filed in the suit. 15. Mr.T.V.Ramanujam, learned Senior Counsel also submitted that the respondent/contemnor has committed Contempt of Court by willfully violating the undertaking affidavit filed by him before this Court and therefore, he should be punished for the same. In support of his contention, the learned Senior Counsel for the petitioner relied upon the following judgments:- (i) 2007(10) SCC 253 (Santanu Chaudhuri v. Subir Ghosh) wherein the Apex Court applying the principles laid down in the judgment reported in 1989 Supp (2) SCC 418 (Firm Ganpat Ram Rajkumar v. Kalu Ram) held that though perhaps the tenant could not be found guilty as there was none in the facts and circumstances of the case, the Court should ensure compliance with its order and see that vacant and peaceful possession is given to the landlord in the interest of Justice. Further, the Apex Court directed the tenant to pay a cost of Rs.50,000/- to the landlord for his breach of undertaking. 1.2013 (14) SCC 614 (Anil Kumar Sanghvi v. Kamalabai), wherein the Apex Court held as follows:- “2. In compliance with the above said direction, an undertaking was filed in this Court by the tenant contemnors saying that they shall vacate the premises by 31-3-2008 and also pay the arrears of rent. However, this order has not been complied with. Although the time to vacate the premises had expired on 31-3-2008, but the possession has been delivered to the applicant landlord only on 14-7-2009, that is, after filing the contempt application before us. 3. In our view, the aforesaid facts would clearly show that the conduct of the tenant contemnors is contemptuous and therefore, strong action should be taken and proceeding for contempt should be initiated against them. But considering the fact that the possession of the premises in question has already been delivered, though belatedly, we feel it proper in the facts and circumstances of the case, not to initiate the contempt proceeding against the tenant contemnors but only to direct them to pay all the arrears of rent to the applicant landlord and in addition to pay costs of Rs 30,000 to the applicant landlord for illegally and deliberately delaying in delivering possession of the premises in question in spite of filing an undertaking in this Court. Such payment shall be made within 4 weeks from this date. (iii) 1991 Supp (1) SCC 219 (Kanta Gupta v. VIII Additional District Judge, Meerut and others ) wherein the Apex Court held as follows:- “10. The undertaking given to the court is unconditional, categoric and unqualified. It requires to be held that, as on the date of the undertaking the contemner was in actual physical possession and was capable of complying with the terms of the undertaking. Bhagwandas, having regard to the facts and circumstances appearing against him, cannot also be heard to the contrary. The contemner had undertaken not to induct any third person into possession. Both of them are bound to act in aid and compliance of the undertaking. They have, purposefully and with a clear intention to flout the undertaking, put up an untenable defence. We find there is a wilful breach of the undertaking. The contemner had undertaken not to induct any third person into possession. Both of them are bound to act in aid and compliance of the undertaking. They have, purposefully and with a clear intention to flout the undertaking, put up an untenable defence. We find there is a wilful breach of the undertaking. The court has not only the power but in appropriate cases the duty to exact obedience to the terms of the undertaking given to it.” 16. The ratios laid down in the above referred judgments relied upon by the learned Senior Counsel appearing for the petitioner squarely applies to the facts and circumstances of the present case. 17. Having filed the affidavit of undertaking to vacate and hand over vacant possession of the suit property within six months time, now, the Contemnor is contending that the petitioner cannot take possession of the suit property from him and the petitioner is not entitled to take possession of the suit property from him. The contention now raised by the Contemnor is contrary to his own admission made by him in his proof affidavit filed before the Trial Court and in the affidavit of undertaking given by him before this Court in the Second Appeal. The stand now taken by the Contemnor is clear abuse of process of the Court. The Contemnor, by filing the affidavit of undertaking, gained six months time to vacate the suit property, but now, he has changed his mind and he is contending as though the petitioner cannot take possession of the suit property. 18. The Act of Contemnor in willfully violating the undertaking given by him in the affidavit in the Second Appeal and setting up a different case, which was not taken by him earlier, would clearly amounts to contempt. When he had given an affidavit of undertaking to vacate and hand over vacant possession to the petitioner unconditionally, he is bound to obey and vacate the suit property within the stipulated time. But the Contemnor took different stand in the Contempt Petition and protracted the proceedings for more than three years. Therefore, I am of the considered view that there is willful breach of the undertaking given by him. The Contemnor not only committed contempt but also his conduct proved that he abused the process of Court by flouting the undertaking given by him and disobeying the orders of this Court. Therefore, I am of the considered view that there is willful breach of the undertaking given by him. The Contemnor not only committed contempt but also his conduct proved that he abused the process of Court by flouting the undertaking given by him and disobeying the orders of this Court. If the act of the Contemnor is condoned and if he is allowed to go without any punishment, it will set a bad precedence and many will think of flouting the orders of this Court, which cannot be permitted. Therefore, I am of the considered view that this is a fit case for imposing punishment on the Contemnor under section 12 of the Contempt of Courts Act, 1971. Hence, the Contemnor is liable for punishment for wilfull disobedience of undertaking given to this Court under section 12 of the Contempt of Courts Act, 1971. 19. In the affidavit dated 16.06.2014 filed by the petitioner, he has stated that the respondent/contemnor had handed over vacant possession of the suit property on 07.05.2014 and that now he is in possession of the same. Further, the learned Senior Counsel appearing on behalf of the petitioner submitted that after taking possession of the property the petitioner had fenced the property. Since the petitioner had stated that he took possession of the property, the same is recorded. 20. Therefore, I am of the view that the Contemnor is guilty of Contempt of Courts and is liable to be punished under section 12 of the Contempt of Courts Act, 1971. In these circumstances, the contemnor is sentenced to undergo Simple Imprisonment of two months and to pay a fine of Rs.2,000/-. The Contemnor shall pay the fine amount within one week and in case of default, the Contemnor should undergo Simple Imprisonment for a further period of 15 days. With these observations, the contempt petition is ordered. However, there shall be no order as to costs.