Andhra Pradesh High Court - Amravati
Chagantipati Muralidhar vs Chagantipati Nandini Kishore Babu on 4 February, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
CONTEMPT CASE No.472 of 2019
ORDER:
1. This contempt case under Sections 10 to 12 of Contempt of Courts Act, 1971 (for short the Act) is filed by petitioner herein against one Chagantipati Nandini Kishore Babu/fifth respondent in Civil Revision Petition No.6565 of 2012, with a request to call for record and punish contemnor/respondent herein (fifth respondent in C.R.P 6565 of 2012) for his willful, wanton and deliberate violation of order dated 01.02.2018, alleging that the petitioner challenged the order passed in C.M.A No.3 of 2009 by V Addl. District Judge, Vijayawada dated 27.09.2012 in Civil Revision Petition No.6565 of 2012 under Article 227 of The Constitution of India, wherein V Addl. District Judge, Vijayawada confirmed the order dated 19.01.2009 passed in I.A No. 2104 of 2008 in O.S No.1219 of 2008 passed by Principal Senior Civil Judge, Vijayawada, Krishna District. This Court disposed of Civil Revision Petition, setting aside the decree and decreetal order dated 27.09.2012 in C.M.A 3 of 2009 passed by V Addl. District Judge at Vijayawada and order in I.A No.2104 of 2008 in O.S No.1219 of 2008, remanded the matter to Principal Senior Civil Judge, Vijayawada, directing to restore the interlocutory application No.2104 of 2008 in O.S No.1219 of 2008 to its original number in the register and dispose off the same as expeditiously as possible, in any even not later than three months from the date of receipt of copy of the order, while directing both parties, to maintain status quo till the disposal of interlocutory application.
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2. After remand of the matter, Principal Senior Civil Judge, Vijayawada, restored I.A No.2104 of 2008 in O.S No.1219 of 2008 to its original number, in interlocutory applications register, but did not dispose off the interlocutory application. In the meanwhile, respondent herein(fifth respondent in Civil Revision Petition No.6565 of 2012), started unauthorized construction, on 15.01.2019, in utter disobedience or violation of the order of status quo, granted by this court, to support the same, filed positive photographs of construction.
3. Petitioner got issued legal notice dated 08.03.2019 to respondent herein, for willful and deliberate violation of the order of this Court, the notice was returned with endorsement "enquired 08.03.2019 to 13.03.2019 addressee not known hence, returned to the sender". If there is any change of address, during the proceedings, pending before the court, it is the duty of the party, concerned to inform the same to the court by filing a memo, giving notice to the other side in terms of Order VI, Rule 14 of Civil Procedure Code (for short C.P.C). But for one reason or the other, the respondent did not inform the address particulars to the Court, thereby, petitioner could not effect actual service of notice on respondent, again issued another notice dated 04.04.2019 to the known address, but the same was returned with postal endorsement "12.04.2019 informed". Therefore, it shall be presumed that notice is served, in view of Section 27 of General Clauses Act and presumption under Section 114 of The Evidence Act.
4. Construction of any building or shed by the respondent is a blatant violation of order of this Court dated 01.02.2018 in C.R.P 3 MSM, J C.C No.472 of 2019 No.6565 of 2012, such violation can be stated to be willful, wanton and deliberate, thereby, respondent is liable to be prosecuted for criminal contempt, requested to punish the respondent for contempt.
5. Respondent filed counter admitting about passing of orders by trial court in I.A No.2104 of 2008 in O.S 1219 of 2008, appeal in C.M.A 3 of 2009 by the appellate court, so also allowing C.R.P No.6565 of 2012 by this Court, with a specific direction. Subsequent to the order of this Court in C.R.P No.6565 of 2012, Principal Senior Civil Judge, Vijayawada passed the following docket order, on 20.04.2018 as follows :
"In view of the Circular of the Hon'ble High Court of Andhra Pradesh in R.O.C No.2573/OP/Cell/2018 dated 18.04.2018, the parties are directed to appear before the court on 01.05.2018 and state whether any stay orders granted an earlier from the Hon'ble High Court of Andhra Pradesh has been extended or not, call on 01.05.02018".
6. In obedience to the direction of Prl. Senior Civil Judge, Vijayawada, in the light of Apex Court judgment and Circular issued by this Court, the order is deemed to have been vacated and petitioner approached this Court, with false allegation misrepresenting the facts.
7. It is specifically contended that contempt notice dated 06.03.2019 and 04.04.2019 alleging that the respondent started construction from 15.01.2019 is a blatant lie, since no work was commenced on the even date. Respondent has started work of erecting an iron sheet roof shed on 14.02.2019 as is it is an auspicious day.
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8. In view of directions issued by the Apex Court, stay is deemed to be lapsed by 11.12.2018, thereby, there is no violation, much less willful or deliberate violation of orders of this Court. In the absence, of any stay, commencement of construction or raising construction in the disputed property, does not amount to willful violation of order of this Court, more particularly, when the order is deemed to have been vacated, in view of the principle laid down in Asian Resurfacing of Road Agency v. Central Bureau of Investigation1, a Three Judge Bench of Apex Court. Hence, there is absolutely no material to punish this respondent for the alleged willful violation of order of status quo granted by this Court.
9. He placed on record, various docket orders and the order of this Court in revision petition including photographs, laying foundation stone to the proposed construction, where appearance of respondent could be seen, to contend that respondent's proposed construction was started on 14th February, 2019, not as alleged in the petition i.e. on 15.01.2019. Thus, the petitioner approached thus Court with false allegations, requested to dismiss the contempt case.
10. Considering rival contentions, perusing the material available on record, the point that arose for consideration is:
Whether the respondent herein violated the order passed by this Court in C.R.P No.6565 of 2012, deliberately and willfully by raising construction in the disputed site, if so, whether the respondent is liable to be punished for contempt?1
(2018) 16 SCC 299 5 MSM, J C.C No.472 of 2019
11. POINT :-
It is an undisputed fact that Principal Senior Civil Judge, Vijayawada passed order in I.A No.2104 of 2008 in O.S 1219 of 2008 dated 19.01.2009, the same was challenged under Order XLIII, Rule 1 of Civil Procedure Code (for short C.P.C) vide C.M.A NO.3 of 2009, but the Appellate Court confirmed the order passed by Principal Senior Civil Judge and dismissed C.M.A No. 3 of 2009.
12. Aggrieved by the order, petitioner herein preferred Civil Revision Petition before this court in Civil Revision Petition No.6565 of 2012 and by order dated 01.02.2018, this Court issued the following direction:
"The Civil Revision Petition is accordingly allowed, setting aside the decree and decreetal order dated 27.09.2012 in C.M.A 3 of 2009 on the file of the court of V Addl. District Judge at Vijayawada and I.A No.2104 of 2008 in O.S No.1219 of 2008 is remanded to the court of Principal Senior Civil Judge, Vijayawada directing the latter to restore the matter to its original number and dispose of the same as expeditiously as possible and in any event not later than three months from the date of receipt of a copy of this order while directing both parties to maintain status quo till disposal of the I.A. Pending miscellaneous petitions, if any, shall stands closed in consequence. No costs".
Respondent did not dispute the order passed by this Court and on the other hand, he himself placed on record, the order passed by this Court while admitting the same, in the counter filed by him in the present petition vide para No.1. More curiously, respondent also did not dispute, raising construction in the disputed property and produced whatsapp messages sent by one G.V Varaprasad and Nagababu who is Mason (Tapi Mestri) and also admitted about 6 MSM, J C.C No.472 of 2019 commencement of construction on 14.02.2019. Whereas, the petitioner's contention is that, respondent started construction on 15.01.2019. Whether respondent started construction on 15.01.2019 or 14.02.2019 is inconsequential, for the simple reason that the respondent himself categorically admitted in para No.8 of counter, about construction of iron sheet shed. But the only defence, he, set out is that, he had no shelter, therefore he was compelled to construct a shed with iron sheet roof for his habitation vide para No.10 of counter and the order is deemed to have been vacated in view of judgment in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra).
13. Respondent is a party in person, being, a practicing advocate in the courts at Vijayawada, raised such plea of excuse to exonerate him from the alleged contempt.
14. The contempt of court is defined under Section 2(a) as follows:
Contempt of court means, Civil contempt or Criminal contempt. Whereas clause b of Section 2 defined civil contempt and it deems willful disobedience of any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a court.
15. Thus the act of respondent i.e. construction of iron sheet shed, for his habitation, despite, directing both the parties, to maintain status quo, during pendency of proceedings, before Principal Senior civil Judge, Vijayawada.
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16. Contempt jurisdiction is not conferred on the Subordinate courts and it is only conferred on the court of record, in view of Article 215 of The Constitution of India. According to it, 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. The jurisdiction of contempt is independent jurisdiction of its original nature. Therefore, this Court is competent to exercise such power to punish a person who is guilty of contempt and this jurisdiction is enjoyed by the Courts, is only for the purpose of upholding the jurisdiction of judicial system that exists. While exercising this power, Court must not react by emotion, but must act judicially. Contempt proceedings are intended to ensure compliance of the orders of court and strict adherence of rule of law. Once the essentials for initiation of contempt proceedings are satisfied, court shall initiate action, uninfluenced by the nature of direction in a pending lis before the court vide judgment in Priya Gupta and another vs. Additional Secretary, Ministry of Health and Family Welfare and others2.
17. Though respondent is a party and lawyer, who is conducting his own case and he being party and lawyer, appearing in person, whose tendency to interfere with or obstruct the due process of justice, has to be dealt with sternly and affirmly, to uphold the process of law.
18. The main endeavour of the respondent in person is that, in view of law laid down by Apex Court in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra), stay granted by 2 2012 (12) Supreme Court, page 289 8 MSM, J C.C No.472 of 2019 this Court is deemed to have been vacated. But the understanding of respondent, party in person being an advocate is contrary to the fact situation. This Court did not grant stay of any proceedings directing both the parties to interlocutory application in I.A No.2104 of 2008 in O.S 1219 of 2008, before Principal Senior Civil Judge, Vijayawada while remanding the matter, except fixing three months outer limit to dispose of the petition, directing both parties to maintain status quo, during pendency of I.A No.2104 of 2008 in O.S No.1219 of 2008. But conveniently Principal Senior Civil Judge, Vijayawada, for one reason or the other, in utter disregard of the direction issued by this Court, as to the limit for disposal of the interlocutory application, adjourned the matter from time to time and not even able to distinct the order of stay and direction to both the parties to maintain status quo and sought clarification for the purpose vide docket order dated 20.04.2018 as to explanation of order passed by this Court. The application pending before Principal Senior Civil Judge, Vijayawada is filed under Order XXXIX Rules 1 and 2 of C.P.C, for grant of interim injunction, trial court granted interim injunction during pendency of suit and the order when challenged before the appellate court, V Additional District Judge, Vijayawada, affirmed the order passed by the Principal Senior Civil Judge, Vijayawada. But the order was set aside by this Court in Civil Revision Petition No.6565 of 2012, with a specific direction, to maintain status quo by both the parties, while directing Principal Senior Civil Judge, Vijayawada to dispose of the petition within three months i.e outer limit for disposal of the petition. When no stay was granted by this Court, question of its expiry in 9 MSM, J C.C No.472 of 2019 terms of judgment in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra) does not arise.
19. The clarification sought by Principal Senior Civil Judge, Vijayawada vide docket order dated 20.04.2018, itself indicates non- application of mind by Principal Senior Civil Judge, Vijayawada, to the facts of the case and law declared by Apex Court in Asian Resurfacing of Road Agency Private Ltd and another (1st referred supra). But respondent being a practicing advocate, is not expected to flout the orders willfully or deliberately, since he is expected to be aware of ill consequences of such deliberate violation or disobedience of order passed by this Court and raised construction in the disputed site. Such act would fall within the Civil Contempt as defined under Section 2(b) of the Act, such contemnor is liable for punishment under Section 12 of the Act.
20. On consideration of entire material available on record, though there is a direction in the petition filed under Order XXXIX, Rules 1 and 2 of C.P.C, to maintain status quo by both the parties, respondent raised construction, admittedly. But the excuse pleaded by the respondent is that when court passed an order under Order XXXIX, Rules 1 and 2 of C.P.C, directing both the parties, to maintain status quo, the order is deemed to have been expired, after 3 months, in view of law declared by Apex Court in Asian Resurfacing of Road Agency and another (1st referred supra), but the understanding of respondent, being an advocate is limited and the direction issued by the court, to maintain status quo, in an injunction petition would not 10 MSM, J C.C No.472 of 2019 fall within the guidelines of Apex Court in Asian Resurfacing of Road Agency (1st referred supra), but respondent disobeyed the order of the court willfully, since he is not supposed to give such interpretation to commit contempt for violation of order of court. The respondent willfully violated the order and disobeyed the order of Court, to maintain status quo in C.R.P No.6565 of 2012, such disobedience is willful ex-facie, since the respondent is an advocate, who is conducting his own case. An advocate is expected to know the minimum law, applicable to the facts of the case and he cannot plead an excuse on the ground of misinterpretation of principles laid down by the Apex Court in Asian Resurfacing of Road Agency (1st referred supra). Therefore, construction of shed for his habitation in schedule premises of suit in O.S No.1219 of 2008 passed by Principal Senior Civil Judge, Vijayawada, Krishna District, is a clear willful disobedience of order of the Court. Hence, respondent is liable for punishment under Section 12 of the Act, but taking into consideration of the profession of respondent, he has to be dealt sternly as held by the Apex Court in Priya Gupta and another (2nd referred supra). But taking into consideration of profession of contemnor and excuse pleaded by respondent, he is sentenced to pay fine of Rs.2,000/- (Rupees Two Thousand only), in default of payment of fine, the contemnor shall undergo simple imprisonment, for a period of one (1) month.
21. In the result, the contempt case is allowed. The Contemnor is sentenced to pay fine of Rs.2,000/- (Rupees Two Thousand only), within one (1) week from the date of this order, in default of payment 11 MSM, J C.C No.472 of 2019 of fine, the contemnor shall undergo simple imprisonment, for a period of one (1) month.
This order will not preclude the petitioner, to file appropriate application, before the trial court, under Order XXXIX, Rule 2-A of C.P.C, to restore status quo anti, since, raising construction of shed in the schedule premises is clear disobedience of order.
________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 04.02.2020 Rvk