Madras High Court
M.Rajendran vs M.Chinnappan on 5 November, 2013
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2013 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN CRP.Nos.751 & 752 of 2006 M.Rajendran .... Petitioner Vs. 1.M.Chinnappan 2.P.Baskar 3.S.A.Rajasekar .... Respondents Prayer in CRP.No.751 of 2006 : This civil revision petition is filed under Article 227 of the Constitution of India against the fair and decretal order dated 14.12.2005 and made in I.A.No.11 of 2004 in I.A.No.4 of 2004 in CMA No.3 of 2004 on the file of the learned Principal Subordinate Judge, Salem. Prayer in CRP.No.752 of 2006 : This civil revision petition is filed under Article 227 of the Constitution of India against the fair and decretal order dated 14.12.2005 and made in I.A.No.13 of 2004 in I.A.No.6 of 2004 in CMA No.4 of 2004 on the file of the learned Principal Subordinate Judge, Salem. For Petitioner : Mr.Perumbulavil Radhakrishnan For Respondents : Mr.D.Shivakumaran C O M M O N O R D E R
1. The memorandum of civil revision in CRP.No.751 of 2006 is directed against the fair and decretal order dated 14.12.2005 and made in I.A.No.11 of 2004 in I.A.No.4 of 2004 in CMA No.3 of 2004 on the file of the learned Principal Subordinate Judge, Salem, whereas the memorandum of civil revision in Crp.No.752 of 2006 has been directed against the fair and decretal order dated 14.12.2005 and made in I.A.No.13 of 2004 in I.A.No.6 of 2004 in CMA No.4 of 2004 on the file of the learned Principal Subordinate Judge, Salem.
2. The revision petitioner in both the civil revisions are one and the same. With the issues is involved in both the revision petitions is common in nature they have been clubbed together heard jointly and disposed of in this common order.
3. The revision petitioner Mr.N.Rajendran had filed a suit in O.S.No.866 of 2013 on the file of the learned District Munsif Salem, as against the respondents 1 to 3 in Crp.No.751 of 2006 seeking the relief of permanent injunction. Along with the suit he had also filed an application in I.A.No.729 of 2003 seeking the relief of ad interim injunction. Similarly, he has also filed an another suit in O.S.No.648 of 2003 as against the respondents 1 to 6 in CRP.No.752 of 2006 seeking the relief of permanent injunction against them. Along with the said suit he had also filed an application in I.A.No.1313 of 2006 and thereby sought the relief of ad interim injunction. Both the applications were contested by the respondents therein and ultimately they both were dismissed on 09.02.2004. Challenging the correctness of the impugned order, the revision petitioner had filed two civil miscellaneous appeals viz., CMA Nos.3 & 4 of 2004 on the file of the learned Principal Subordinate Judge, Salem.
4. Along with the above said civil miscellaneous appeals he had also filed two interlocutory applications viz. I.A.Nos.4 & 6 of 2004. In I.A.No.4 of 2004 in CMA No.3 of 2004 status quo was ordered on 06.04.2004 which was to be maintained till 20.04.2004. Similarly in I.A.No.6 of 2004 in CMA No.4 of 2004 status quo was ordered on 28.04.2004 which was to be maintained till 08.06.2004.
5. When the above said orders were in force, the revision petitioner Mr.M.Rajendran had come forward with two applications in I.A.No.11 of 2004 in I.A.No.4 of 2004 in CMA No.3 of 2004 saying that the respondents therein, in gross violation of the order of status quo and without any regard to the order passed by the Court, had not only prevented him from the user of the suit cart track but also had altered the physical feature of the suit property by erecting a shed and laying new road in the suit property in order to defeat and defraud his lawful rights and therefore, he had requested the Court to pass suitable orders under Section 12 of The Contempt of Courts Act, to punish them for having disobeyed the order of the Court.
6. Similarly, he had also taken out another application in I.A.No.13 of 2004 to punish the respondents therein under Section 12 of the Contempt of Courts Act for having disobeyed the order of the court. In the affidavit filed in support of the said petition, he has stated that in gross violation of the order of the status quo and without any regard to the order passed by the Court, the respondents had only prevented him from the user of the suit cart track but also had altered the physical feature of the suit property by erecting a shed and laying new road in the suit property in order to defeat and defraud his legal rights.
7. It is manifested from the records that in both the petitions, the respondents have filed a memorandum of undertaking on 09.11.2005, wherein they had stated that they never violated the Court Order and that they had also given an undertaking that they would not encroach or violate the court order. As against the said memorandum, the revision petitioner has filed his objection on 16.11.2005. However, the learned Subordinate Judge had proceeded to pass an order on 14.12.2005, and thereby he had closed both the contempt petitions in I.A.No.11 of 2004 as well as I.A.No.13 of 2004 after recording the memorandum of undertaking filed by the respondents therein.
8. Having been aggrieved by the impugned order dated 14.12.2005 in both the applications, the revision petitioner has approached this court with these two civil revision petitions CRP.Nos.751 & 752 of 2006.
8. Heard Mr.Perumbulavil Radhakrishnan learned counsel for the petitioner as well as Mr.D.Shivakumaran learned counsel for the respondents.
9. As hereinbefore stated both the petitions in I.A.Nos.4 & 6 of 2004 in CMA Nos3 and 4 of 2004 were filed seeking the relief of ad interim injunction under Order 39 Rule 1 and 2 r/w. Section 151 Code of Civil Procedure.
10. It is obvious to note here that in both the applications, an order of status quo was granted by the learned Subordinate Judge, Salem. According to the revision petitioner, the respondents in both the applications had violated as well as disobeyed the order of status quo granted by the learned Subordinate Judge. In this connection this court finds it better to extract Rule 2(A) to Order 39 of the Code of Civil Procedure.
Sub-rule 1 to Rule 2(A) reads as under;
2(A). 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 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 tone 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. From the provisions of Sub-rule 1 to Rule 2(A) of Order 39 it is palpable that in case of any disobedience of any injunction granted or any other order made under Rule 1 or Rule 2 of Order 39 of the Code of Civil Procedure, the Court granting the injunction order making the order may order the property of the person, who has violated or disobeyed or committed breach of the said order, be attached and may also order such person to be detained in the civil prison for a term not exceeding three months.
12. Virtually, the procedures contemplated under Sub Rule 1, Rule 2(A) of Order 39 of the Code were not followed by the revision petitioner. Instead he had come forward with the above said two applications under the provisions of Contempt of Court Act to punish the respondents therein for having violated or disobeyed the order of the learned Subordinate Judge. It may be significant to note here that both the contempt petitions were filed before the learned Subordinate Judge. The learned Subordinate Judge, Salem without taking note of the intricacy or nuance of the implications of Law had taken both the applications on his file as if he had jurisdiction to entertain those applications. It is obvious to note here that the learned Subordinate Judge, does not have any power to punish the respondents under Section 12 of the Contempt of Courts Act 1971. It is also very much relevant to note here that he does not have any power to entertain those applications under Section 11 of the Contempt of Courts Act 1971.
13. Under this circumstance it is imperative on the part of this court to extract the provisions of Section 10 of the Contempt of Court Act 1971. It reads as under;
10. Power of High Court to punish contempts of subordinate courts.?
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
14. From the language coined in Section 10 of the Contempt of Courts Act 1971 it is this made clear that every High Court shall have and exercise the same jurisdiction powers and authority in respect of contempt of courts, subordinate to it as it has and exercises in respect of contempts of itself.
15. It is also made clear that in case such a contempt is an offence punishable under the Indian Penal Code, no High Court shall take cognisance of a contempt alleged to have been committed in respect of a court subordinate to it.
16. As observed in Sukhdev Singh v. Tejinder Singh reported in AIR 1954 SC 186, The power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Records.
17. On coming to the instant case on hand, it may be relevant to note that, though the order passed by the learned Subordinate Judge is said to have been disobeyed or violated, that court is not empowered under the provisions of Section 11 of the Contempt of Courts Act to entertain such an application to punish the contemnor under Section 12 of the said Act. As contemplated under Section 10 of the Act, thought the order of the trial court is said to have been disobeyed by the contemnor, the power is vested only with the High Court to punish the contempts of Subordinate Courts.
18. In this connection a crucial question may arise is to why the High Court alone is empowered to punish the contempt said to have been committed in the court below ?
19. The reason why is the High Court is a Court of record and hence it does have inherent jurisdiction and power to deal with the contempt of the Subordinate Court as it has and exercises in respect of contempts of itself.
20. As observed in Abdul Hassan Jauhar In req 48 All 711 : AIR 1926 ALL 623 (FB) The High Court as a Court of Record and as the protector of Public justice throughout its jurisdiction has power to deal with contempt directed against administration of justice, whether those contempts are committed in the face of the court or outside it and independently of whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court and in the latter case whether those proceedings might or might not at some stage come before the High Court.
21. Another question may also arise as to what is the court of record ?
According to Jowitt, Dictionary of English Law, 1st Edn.(p.526) a Court of Record has been defined as:
A Court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority. Wharton's Law Lexicon, explains a Court of Record as:
Record, Courts of, those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the Records of the Court; and are of such high and super-eminent authority that their truth is not to be called in question. Courts of Record are of two classes - Superior and Inferior. Superior Courts of Record include the House of lords, the Judicial Committee, the Court of Appeal, the High Court, and a few others. The Mayor's Court of London, the County Courts, Coroner's Courts and other are Inferior Courts of Record, of which the Country Courts are the most important. Every superior Court of record has authority to fine and imprison for contempt of its authority: an inferior Court of record can only commit for contempts committed in open court, in facie curiae.
Thus a Court of record ia a Court, the records of which are admitted to be of penitentiary value and are not to be questioned when produced before any Court. The power that Courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the Courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.
22. Besides this in Vol.8 Part I of Halsbury's Laws of England there is some explanation of what is meant by Courts of Record. The relevant papa runs as under:
Another manner of division is into Courts of Record and Courts not of Record. Whether a court is a court of record or not depends whether it has power to fine and imprison, whether for contempt for itself or for other substantive offences. Courts of Record are such as have been expressly made so by statute or by implication of a statute, that is by having statutory power to fine and imprison at common law. (All courts of record; with exception of the courts of counties Palantine, are courts of the king... the proceedings of the Court of record preserved in its archives are called records and are conclusive evidence of that which is recorded therein).
23. In this connection this court finds that the reference of Article 215 of the Constitution of India is of much importance;
Article 215. High Courts to be courts of record.- Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
24. In Lakhan Singh v. Balbir Singh, AIR 1953 All 342(345) it has been observed in relation to Article 215 of the Constitution of India that;
Article 215 of the Constitution which vests in the High Court the powers of Court or Record including the power to punish contempt of itself does not limit the powers which the High Court possessed before the punish contempts of Subordinate Courts either as a Superior Court or Records or under the Contempt of Courts Act of 1926 which has been replaced by the Act 1952 (which has been repealed by the present Act).
25. From the above context it has been crystallized that the High Courts are courts of record and therefore, they have inherent jurisdiction to deal with the contempt of Subordinate court as it has in respect of contempt of itself and it is also worthwhile to note here that the powers of High Courts to punish for contempt of subordinate court have been preserved by Article 19(2) of the Constitution of India.
Article 19 Clause 2 enacts as under;
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
26. This proposition of law has been fully clarified in State vs. Brahma Parkash AIR 1950 ALL 556 in the following manner;
Assuming that the expression 'existing law' as used in Article 19(2) of the Constitution of India means only that written law and does not include the unwritten and case law, there is nothing in that clause that affects the operation of the Contempt of Courts Act. The High Court has under Section 2(1) of that Act has exactly the same powers in respect of Contempt of Courts subordinate to it as it has and exercised in respect of contempt of itself. It is not correct to say that though the power is there, it cannot be exercised because of the want of definition of Contempt of Court in the Constitution of India or in the Contempt of Courts Act. The power of the High Court to commit for contempt both of itself and of the subordinate court has been preserved by Article 19(2) of the Constitution of India; it is open to the High Courts to draw upon the existing case law to decide what Contempt of Court is. For, it can never be the intention of the makers of the Constitution that the court should be debarred from ascertaining in a judicial manner what is the meaning to be attributed, to an expression used in the Constitution but neither defined therein not in any written law.
27. But in the instant case on hand admittedly, the alleged contempt was not committed in the presence of learned Subordinate Judge, Salem. But his order of status quo which has been granted on 06.04.2004 in I.A.No.4 of 2004 in CMA No.3 of 2004 and on 28.04.2004 in I.A.No.6 of 2004 in CMA No.4 of 2004 are said to have been infringed, violated and disobeyed willfully by the contemnors and in this connection Mr.D.Shivakumaran learned counsel for the respondents has argued that the learned Subordinate Judge had no power to entertain the contempt proceedings because the contempt was not committed in his presence. He has also argued that the High Court alone can entertain such proceedings for contempt only when no offence under penal code is committed.
28. He has also argued that besides the question of jurisdiction the Subordinate Court to entertain the contempt petition, the petitioner had not at all produced any evidence either by oral or documentary to prove the alleged act of contempt.
29. In order to add an additional strength to his arguments Mr.D.Shivakumaran learned counsel for the respondent has placed reliance upon the decision in Rudraiah v. State of Karnataka and others reported in AIR 1982 Karnataka 182. While dealing with an application for breaching of injunction order issued temporarily with relevant to the question of maintainability the Division Bench of Karnataka High Court has held that;
In cases of disobedience or breach of injunction order issued temporarily during the pendency of a suit, either under Rule 1 or 2 of Order 39, C. P. C. action is contemplated by the very court which issues the injunction order under Rule 2A of Order 39, C. P. C. It contemplates the forfeiture of property as also putting of the person who commits breach into civil prison for a period not exceeding three months. The provision there under is obviously based on the principle of contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by the decree holder, for forcing the party to obey the injunction order. It is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision are contained in the C. P. C. itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked.
30. In an another case in T.Srinivasa v. J.J.Prakash reported in AIR 2009 Karnataka 86 a Division Bench of Karnataka High Court has made reference to the case in K.Jagdish Ponraj and others v. A.Muniraju and Others reported in 2009 (1) AIR Kar R 560. In the above referred case, the complainants as plaintiffs had obtained an order of temporary injunction under Order 39, Rule 1 and 2 of C.P.C. They alleged disobedience of the said order by the defendant. Without invoking the Jurisdiction of the Civil Court provided under Rule 2A thereof, a contempt petition was filed in this Court under Sections 10 & 12 of the Act. Considering the objections raised to the maintainability of the contempt petition, in view of the provision made in Order 39 Rule 2A CPC, it was held as follows:
The provision under Order 39 Rule 2A(1) relates to the consequence of disobedience or breach of Injunction. The remedy available in case of disobedience or breach of injunction Is provided therein itself, which in our view, has been made to provide a speedy inexpensive and effective forum and to avoid multiplicity of litigation before different forums. The Legislative policies and intendment should necessarily weigh with us In giving meaningful interpretation to the provision. We do not find any extraordinary case having been made out by the complainants, who are insisting for initiation and prosecution of the proceedings under the Act, than by availing the remedy provided under the Code. From the said perspective, taking into consideration the remedy provided under the Code, the complaint filed under the Act, for taking action for breach or disobedience of an order of temporary injunction made or granted by the subordinate Court, is not permissible. In our view, when the subordinate court itself has been sufficiently empowered to deal with the situation, where there is disobedience or breach of the injunction order granted by it, the same forum should be approached for relief and to see that its orders are honoured and given effect to rather than seeking punishment under Section 12 of the Act.
31. In an another decision in Kanwar Singh Saini v. High Court of Delhi reported in (2012) 4 SCC 307; which is relied upon by Mr.D.Shiuvakumaran learned counsel for the respondent, in a suit filed by M for permanent injunction alleging that the appellant had tried to dispossess him from the suit premises the appellant had filed a written statement admitting the sale deed in respect of the suit premises and handing its possession but denied the allegation that he had dispossessed him. The civil court while taking his written statement had recorded the undertaking of the appellant/defendant that he had neither threatened to dispossess nor he would dispossess the plaintiff. The plaintiff's counsel had accepted the undertaking given by the appellant/defendant and asked the court to dispose of the suit in view of the said undertaking. Thereafter, M filed an application under Contempt of Courts Act 1971 alleging violation of undertaking given by the appellant to the civil court. The High Court had disposed of the application without issuing notice granting liberty to the applicant to approach the civil court. In pursuant to the direction of the High Court, M had filed an application under Order 39 Rule 2-A COC, 1908 r/w. Sections 10,11 and 12 of the 1971 Act against the appellant alleging that when the had visited the suit premises he had found that the locks of the main door were broken. The appellant had filed his reply to the said application stating that the execution of the sale deed, his written statement, and statement made before the court were obtained by fraud. The Court had recorded that as the appellant had taken inconsistant pleas of the written statement filed earlier and violated the undertaking while making his oral statement, a prima facie case of contempt was made out and referred the matter to the High Court to be dealt with under the provisions of the 1971 Act. The High Court while accepting the reference as criminal contempt, found the appellant guilty of criminal contempt and imposed the punishment of simple imprisonment upon the appellant for four months.
32. While allowing the appeal His Lordship Hon'ble Mr.Justice Dr.B.S.Chauhan speaks on behalf of the Division Bench as under;
Application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of was one, that is granted by the court under Order 39 Rules 1 & 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and the court cannot entertain an application under Order 39 Rule 2-A. An application under Order 39 Rule 2-A is maintainable only during the pendency of the suit in case the interim order passed by the court or undertaking given by the party is violated. In the instant case, no interim order had ever been passed and the undertaking given by the appellant-defendant not to dispossess the said plaintiff culminated into a final decree and thus, if any further action was required, it could be taken only in execution proceedings under Order 21 Rule 32 CPC and not by means of contempt proceedings. Even otherwise, it is not desirable for the High Court to initiate criminal contempt proceedings for disobedience of the order of the injunction passed by the subordinate court, for the reason that, the same may be executed by attachment of his property or by detention in civil prison or both. The provision of Order 21 Rule 32 CPC applies to prohibitory as well as mandatory injunctions. Execution of an injunction decree is to be made in pursuance of Order 21 Rule 32 CPC as CPC provides a particular manner and mode of execution and therefore, no other mode is permissible. There has been manifest injustice in the case and the doctrine of ex debito justitiae has to be applied in order to redress the grievances of the appellant-defendant. The judgment and order impugned cannot be sustained under any circumstance.
33. But the facts which are given in the instant case are somewhat different. Insofar as the present case on hand is concerned, the suits are still pending. It is alleged that the order of status quo granted by the appellant court in I.A.No.4 of 2004 in CMA No.3 of 2004 and in I.A.No.6 of 2004 in CMA No.4 of 2004 had been violated, infringed, disobeyed and flouted by the contemnor and therefore, the above two applications came to be filed by the petitioner, who is the plaintiff in the suit in O.S.No.648 of 2003 and O.S.No.866 of 2013 under Section 12 of the Contempt of Courts Act 1971 before the learned Subordinate Judge, Salem to punish the respondent/contemnor.
34. As stated hereinbefore, the suits are still pending. As contemplated under Section 10 of the Act the Subordinate Courts have not been vested with the power of punishing the contemnors under Section 12 of the Contempt of Courts Act and the power has been conferred with the High Court. Apart from this, being the Court of Records as contemplated under Article 215 of the Constitution of India, this court alone is having inherent jurisdiction and powers to deal with the contempt of Subordiante Courts as it has in respect of contempt of itself and therefore, the posers of this court to punish for contempt of Subordinate Courts have been preserved by Article 19(2) of the Constitution.
35. Keeping in view of the above fact, this court finds that the revision petitions are liable to be dismissed as the learned Subordinate Judge, Salem does not have power to entertain the petitions under provision of Contempt of Courts Act 1971.
36. With this observation these civil revision petitions are dismissed. However, there shall be no order as to costs.
05.11.2013 Index : Yes/No Internet : Yes/No PRM T.MATHIVANAN, J. prm CRP.Nos.751 & 752 of 2006 05.11.2013