Karnataka High Court
H. Govindaraju S/O Late Hanumanthaiah vs Shri Shankaralinge Gowda, Major ... on 18 July, 2007
Equivalent citations: AIR2007KANT177, ILR2007KAR3534, 2007(6)KARLJ1452, AIR 2007 KARNATAKA 177, 2008 (2) ALJ (NOC) 383 (KAR.) = AIR 2007 KARNATAKA 177, 2008 (1) AJHAR (NOC) 115 (KAR.) = AIR 2007 KARNATAKA 177, 2007 (5) AIR KAR R 379, 2007 A I H C 3456, (2007) ILR (KANT) 3534, (2007) 6 KANT LJ 152, (2007) 4 ICC 273
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
ORDER
1. This contempt petition is filed alleging violation/disobedience of the Order dated 30.07.2005, passed by the learned Addl. City Civil Judge, Bangalore, in O.S. No. 16507/2005.
2. Since important question of law has been raised, it is necessary to consider the facts and circumstances in brief:
The complainant as a plaintiff filed a suit in, O.S. No. 16507/2005 on the file of the City Civil Judge, in respect of a house property, praying for relief of permanent injunction. In the suit, interim application was filed under Order 39 Rules 1 and 2 of CPC for grant of temporary injunction. After hearing both the parties, on 30.07.2005 the Trial Court passed an interim Order directing both the parties to maintain statusquo. It is alleged that when such statusquo Order was passed, on 28.04.2007 without notice to the complainant, the respondents demolished the house of the plaintiff and others and this act is in clear disobedience of the statusquo Order granted on 30.07.2005. Invoking the contempt jurisdiction of this Court, the present contempt petition is filed.
3. After hearing the learned senior counsel for the complainant, as it was stated by the complainant himself that as against the violation of the Order, the complainant has filed an application under Order 39 Rule 2A of CPC to take action against the respondents. This Court posed a question as to how parallel remedy can be invoked at the same time by the complainant, one by invoking the jurisdiction of the Civil Court under Order 39, Rule 2A of CPC and another by invoking the provisions of the Contempt of Courts Act. In this regard, the learned senior counsel fairly brought to the notice of this Court that earlier, Division Bench of this Court in the case of Shaik Mohiddin v. Section Officer, Karnataka Electricity Board 1994 CRI.L.J. 3689, in which this Court has taken a view that when the CPC has provided procedure for seeking remedy to enforce the right like the one on hand, normally contempt action should not be initiated by the High Court. It is in this regard submitted that the Division Bench while considering the aforesaid case has not looked into the proviso to Section 10 of the Contempt of Courts Act. It is contended that the only embargo placed on the High Court for not initiating contempt proceedings is in the cases in which such contempt is an offence punishable under IPC. It is submitted that by not looking into the same and interpreting the provisions of the contempt by the Division Bench in the case of Shaik Mohiddin's case amounts to re-writing of Statute which is not provided. In this regard, the learned senior counsel has relied upon the pronouncement of the apex Court in the case of Commissioner of Income Tax, Orissa v. N.C. Budharaja and Company .
4. After hearing the learned Counsel and perusing the aforesaid Judgments and Section 10 of the Contempt of Courts Act, we cannot dispute the implication of proviso to Section 10 of the Contempt of Courts Act. It only appears that the Court cannot take cognizance of contempt where such action is an offence punishable under IPC. In the present case, as is clear from the allegations, it is the case of the complainant himself that in spite of the statusquo Order granted by the Court, the house of the complainant has been demolished by the alleged contemnor. The act of demolition or destruction of the property in our view clearly falls under the definition of mischief under Section 425 IPC. and as the act of the respondents itself is an offence punishable under IPC, the embargo under the provisions is attracted and this Court cannot take cognizance of the contempt. On this ground alone, the contempt petition is liable to be rejected.
5. Even otherwise, as rightly observed by the Division Bench in Shaik Mohiddin's case with which we are in full agreement when CPC has provided appropriate and adequate remedy to the complainant by invoking Order 39 Rule 2A of CPC., and as is admitted, this remedy is already invoked by the complainant before the Trial Court, a parallel action under the provisions of the Contempt of Courts Act cannot be initiated. The person like the complainant can choose either of forums and cannot choose both the forums. In fact, the Division Bench has taken into consideration the provisions as well as the earlier pronouncements of this Court in the case of Rudraiah v. State of Karnataka and the pronouncement of Calcutta High Court in , and in this regard. We do not find that the interpretation of the Division Bench as to the effect of availability of parallel remedy by way of Order 39 Rule 2A CPC does not amount to re-writing any Statute or Section. The Court while considering its jurisdiction under the special Statute, had considered the effect of availability of a parallel remedy and held that as an efficacious remedy has been provided under Order 39 Rule 2A of CPC for punishing the person who violates interim Orders granted, the High Court should not invoke its jurisdiction under the Contempt of Courts Act, keeping in mind the well settled principle that contempt jurisdiction has to be exercised in rare and only appropriate case. As the pronouncement of this Court in Shaik Mohiddin's case does not amount to interpretation of any statute or does not amount to re-writing any Section. In our view, reliance placed on the Judgments of the apex Court by the complainant is misconceived.
6. Considering the case from any angle, in our view, as the alleged action of the respondent amounts to an offence under definition of mischief under Section 425 IPC and as there is an embargo under proviso under Section 10 of the Contempt of Courts Act, this Court cannot take cognizance of the same. Even otherwise as already noticed as the complainant has already invoked parallel efficacious remedy, he cannot be permitted at the same time to invoke the contempt jurisdiction. Hence we find no merit in the contempt petition.
Accordingly, the contempt petition is rejected.