Madras High Court
G.Alex Benziger vs Fr.Jesudhasan Thomas on 6 April, 2017
Bench: T.S.Sivagnanam, P.Velmurugan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.04.2017 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MR.JUSTICE P.VELMURUGAN CONT.P.(MD) No.361 of 2012 in I.A.No.193 of 2011 in O.S.No.195 of 2011 and SUB.A.(MD) No.44 of 2012 G.Alex Benziger ... Petitioner -vs- 1.Fr.Jesudhasan Thomas Parish Priest Parish Council of Maravankudyiruppu Thasnevis Matha Church Maravankudyiruppu Nagercoil Village Agastheeswaram Taluk Kanyakumari District 2.Inbasagaran s/o.A.Roch Angel @ Rochanji Vice President Parish Council of Maravankudyiruppu Thasnevis Matha Church Maravankudyiruppu Nagercoil Village Agastheeswaram Taluk Kanyakumari District 3.David Appathurai s/o.Muthappa Bhahavathar Secretary Parish Council of Maravankudyiruppu Thasnevis Matha Church Maravankudyiruppu Nagercoil Village Agastheeswaram Taluk Kanyakumari District ... Respondents PRAYER: This petition is filed under Section 11 of the Contempt of Courts Act, 1971 to punish the respondents herein for having committed civil contempt by wilfully disobeying the order of injunction in I.A.No.193 of 2011 in O.S.No.195 of 2011, dated 13.10.2011, issued by the learned Principal Subordinate Judge, Nagercoil and subsequently extended by the learned I Additional Subordinate Judge, Nagercoil on various dates. !For Petitioner : Mr.Ananth C.Rajesh ^For Respondents : Mr.T.Lajapathi Roy :ORDER
(Order of the Court by T.S.SIVAGNANAM, J.,) This contempt petition has been filed alleging wilful disobedience of the order of interim injunction, dated 13.10.2011, granted in I.A.No.193 of 2011 in O.S.No.195 of 2011, by the learned Principal Subordinate Judge.
2. The suit, in O.S.No.195 of 2011, was filed by petitioner / plaintiff for a decree of permanent injunction restraining the respondents / defendants from demolishing or initiating process to demolish the Church described in the Schedule to the plaint. The petitioner / plaintiff filed an interlocutory application, in I.A.No.193 of 2011, praying for an order of temporary injunction restraining the respondents / defendants from demolishing the plaint Schedule Church holding that it is a heritage building. The learned Principal Subordinate Judge, Nagercoil, by order, dated 13.10.2011, granted an ex parte order of injunction, which reads as under:
?Heard. Perused documents 1 to 3 affidavit and plaint. Prima facie case exists. Ad-interim injunction granted till 28.10.2011. Order 39 Rule 3 to be complied with on or before 14.10.2011. Affidavit by 14.10.2011.
Notice to the respondents by 28.10.2011.?
3. The petitioner's case is that the respondents / defendants have violated the said order of injunction, dated 13.10.2011.
4. The respondents / defendants have raised a technical plea that contempt petition is not maintainable in the light of the decision in Bal Thackrey v. Harish Pimpalkhute, reported in (2005) 1 SCC 254.
5. Heard Mr.Ananth C.Rajesh, learned counsel appearing for the petitioner and Mr.T.Lajapathi Roy, learned counsel appearing for the respondents and carefully perused the materials placed on record.
6. Before we go into the aspect as to whether the respondents / defendants have violated the ex parte order of interim injunction passed by the Civil Court or whether the contempt petition is maintainable, we go into the preliminary issue with regard to the manner in which the Civil Court has passed the ex parte order of interim injunction. Time and again, the Honourable Supreme Court emphasized that ex parte order of interim injunction should be a speaking order and an order devoid of reasons is illegal and in violation of principles of natural justice.
7. We have extracted the order passed by the Civil Court in the preceding paragraph. It does not assign any reason except stating that "perused the documents". "Prima facie case exists". Such orders have been repeatedly deprecated not only by the Supreme Court, but also this Court. In fact, the Judicial Officers have been sensitized as to how they have to pass ex parte interim orders, when they are prima facie satisfied that the petitioner / plaintiff has made out a case. The order passed in the instant case on hand is a classical case as to how, ex parte interim orders should not have been passed.
8. Thus, for all the above reasons, we are not inclined to entertain the contempt petition or initiate contempt proceedings. It is always open to the parties to workout their remedy in the pending suit.
9. The contempt petition is closed with the above observations. No costs. Consequently, connected sub application is closed.
To:
1.The Principal Subordinate Judge, Nagercoil.
2.The I Additional Subordinate Judge, Nagercoil..