Madras High Court
Nazeema Parveen vs A. Zubeidha Bee on 4 August, 2009
Equivalent citations: AIR 2010 MADRAS 57, 2010 (3) AKAR (NOC) 216 (MAD) (2009) 8 MAD LJ 1221, (2009) 8 MAD LJ 1221
Author: K.K. Sasidharan
Bench: K.K. Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 4.08.2009 Coram The Honourable Mr. Justice K.K. SASIDHARAN CRP (PD) No.1204 of 2009 & M.P.No.1 of 2009 1. Nazeema Parveen 2. Anees Ahamed 3. Hakeel Ahmed ... Petitioners ..vs.. A. Zubeidha Bee ... Respondent Civil Revision Petition against the order dated 16.4.2009in I.A.No.1115 of 2003 in O.S.No.95 of 2002 on the file of the Subordinate Court, Chidambaram For Petitioners : Mr.Habibulla Basha, Senior Counsel for Mr.T.P.Sankaran For Respondent : Mr.T.Murugamanickam ----- O R D E R
Challenge in this civil revision petition is to the order dated 16.4.2009 in I.A.No.1115 of 2003 in O.S.No.95 of 2002 on the file of the learned Subordinate Judge, Chidambaram. THE FACTS:-
2. The petitioners are the legal representatives of one P.Mohamed Ismail, defendant in O.S.No.95 of 2002 on the file of the Subordinate Judge, Chidambaram. The suit in O.S.No.95 of 2002 was preferred by the respondent against P.Mohamed Ismail praying for a money decree for a sum of Rs.1,04,038/- on the basis of a promissory note stated to have been executed by him. The respondent also filed an application for attachment before judgment and the said application was registered as I.A.No.8 of 2001. In the said application, the respondent/Mohamed Ismail had filed counter wherein besides denying the allegations made in the application, an undertaking was given that he has no intention to alienate the property and as such there would no alienation till the disposal of the suit.
3. The learned trial Judge as per order dated 22.2.2002 allowed the application filed under Order 38 Rule 5 of the Code of Civil Procedure and attached the property, in spite of the undertaking given by the respondent in the said application. The said order has become final.
4. Subsequently, it appears that the respondent in I.A.No.8 of 2001 assigned the property by way of two sale deeds in favour of S. Mani Chettiar and M.Sathishkumar . Since the assignments were made during the currency of the order of attachment, the respondent herein filed contempt petition No.1115 of 2003 to punish the respondent in I.A.No.8 of 2001 for his wilful disobedience of the order passed by the trial Court. During the pendency of the said application, the respondent P.Mohamed Ismail died and the petitioners, being his legal representatives were impleaded as respondents in the contempt petition.
5. The wife of the deceased Mohammed Ismail was impleaded as the second respondent and his children were impleaded as respondents 3 and 4. In short the matter was continued even after the death of the contemner and ultimately as per order dated 16.4.2009 the revision petitioners were convicted. The first petitioner was directed to pay a sum of Rs.1000/- as fine and the petitioners 2 and 3 were sentenced to undergo imprisonment for a period of two months. It is the said order, which is impugned in the civil revision petition.
THE ISSUE:-
6. The only issue which arises for consideration in the civil revision is as to whether the revision petitioners could be convicted on account of the contemptuous act committed by their predecessor- in- interest.
DISCUSSION:-
7. The respondent herein has preferred an application for attachment before judgment in I.A.No.8 of 2001 during the pendency of the suit in O.S.No.95 of 2002 on the file of the learned Subordinate Judge, Chidambaram. In the application for attachment before judgment, the respondent was none other than the defendant in O.S.No.95 of 2002. The respondent has given an undertaking in his counter in I.A.No.8 of 1991 that he would not alienate the property till the disposal of the suit. However, the court was not inclined to accept the said undertaking and accordingly an order of attachment was made as per order dated 22.2.2002. The said order has become final.
8. Subsequently the respondent in I.A.No.8 of 2001 sold the property to third parties by way of two separate sale deeds in violation of the order passed by the civil court. It was only in the said circumstances, the respondent has filed an application in I.A.No.1115 of 2003 to punish the wrongdoer on account of his contemptuous act in selling the property disregarding the order of attachment made by the trial Court. The respondent in the said contempt petition died during the pendency of the said application. His legal representatives were impleaded as respondents 2 to 4 in I.A.No.1115 of 2003.
9. Even though the person, who was instrumental in committing contempt died during the pendency of the application, the proceeding was not terminated. It was continued with much vigour against his legal representatives.
10. The learned Subordinate Judge found that the property was sold by none other than the respondent in I.A.No.8 of 2001.The petitioners were not the vendors, as the property absolutely belonged to their predecessor-in-interest. However the learned Judge found that the petitioners have also singed as witnesses in the document executed by deceased Mohammed Ismail and as such, they have knowledge about the order of attachment.
11. The property absolutely belonged to the respondent in I.A.No.1115 of 2002. The revision petitioners have no interest in the said property. There was nothing on record to show that the petitioners were aware of the order of attachment made by the learned trial Judge. The property attached in the decree is situated at Salem. The petitioners are residing at Vaniyambadi. There were no materials to show that the petitioners were privy to the transaction. Merely because they have signed as witnesses to the document executed by their predecessor-in-interest they cannot be attributed with motives or knowledge about the order of attachment made by the learned Judge.
12. The cause of action for initiating contempt petition has come to an end on account of the death of the contemner. The doctrine of pious obligation as applied to the Hindu Law has no application here. Even the doctrine of pious obligation cannot be applied in respect of an action for contempt. The action for contempt is personal in nature and the contempt abates along with the death of the contemner. There was no cause of action for taking action against the legal representatives of the contemner. No order of attachment was passed against the revision petitioners as they were not the owners of the property. The suit was also not filed against them and the only defendant in the suit was Mohammed Ismail, who also figured as sole respondent in the application filed for attachment before judgment.
13. The only ground which weighed with the learned trial Judge to convict the petitioners was on account of their association as witnesses in the document executed by their predecessor-in-interest. It is not the case of the respondent even in her application to implead the legal representatives, that the petitioners were aware of the order of attachment and they have wilfully flouted the order of the learned Judge. The application for impleading the legal representatives were made in a very casual manner without ascertaining as to whether the contempt could be proceeded against the legal representatives.
THE LEGAL PRINCIPLES:-
14. The contempt jurisdiction is essentially an extra ordinary jurisdiction intended mainly to uphold the majesty of law. This jurisdiction cannot be exercised in a routine or casual manner. Similarly contempt cannot be made use of to settle a score. The initial burden lies always on the party complaining of violation of the order passed by the Court for the purpose of moving the contempt machinery. There should be positive materials placed before the court to substantiate the contention regarding the commission of contempt. No action for contempt would lie on account of technical violation or probabilities. The conduct should be wilful, deliberate and aimed with an intention to flout the order passed by the court.
15. In Murray & Co. v. Ashok Kr. Newatia, {(2000) 2 SCC 367}, the Supreme Court indicated the nature of contempt jurisdiction thus:-
" 1. Though judicial hypersensitiveness is not warranted but angelic silence on the part of a Judge is also not expected vis-`-vis an infraction of the majesty of law. The Contempt of Courts Act of 1971 has been engrafted in the statute-book for the purpose of bringing in a feeling of confidence of the people in general for due and proper administration of justice in the country. It is undoubtedly a powerful weapon in the hands of the courts and as such it must be exercised with due care and caution and in cases of larger interest for due administration of justice.
9. The right to inflict punishment for contempt of court in terms of the Act of 1971 on to the law courts has been for the purposes of ensuring the rule of law and orderly administration of justice. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by courts of law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which can even remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the people in general."
16. The Supreme Court in Chhotu Ram v. Urvashi Gulati, {(2001) 7 SCC 530}, underlined the standard of proof required for the purpose of initiating an action for contempt thus:-
A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt.
17. The Supreme Court in Rajesh Kumar Singh v. High Court of Judicature of M.P., GWALIOR {2007 (9) SCALE 44 = (2007) 14 SCC 126,} explained the scope of contempt jurisdiction thus:-
"20. This Court has repeatedly cautioned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalise courts or lowering the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved. In Rizwan-ul-Hasan v. State of U.P.(1953 SCR 581), this Court reiterated the well-settled principle that jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. Of late, a perception that is slowly gaining ground among public is that sometimes, some Judges are showing over sensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to uphold the majesty of courts, and to command respect. But Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power.
21. Nearly two centuries ago, Justice John Marshall, the Chief Justice of American Supreme Court warned that the power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man. The purpose of the power to punish for criminal contempt is to ensure that the faith and confidence of the public in administration of justice is not eroded. Such power, vested in the High Courts, carries with it great responsibility. Care should be taken to ensure that there is no room for complaints of ostentatious exercise of power. Three acts, which are often cited as examples of exercise of such power are: (i) punishing persons for unintended acts or technical violations, by treating them as contempt of court; (ii) frequent summoning of government officers to court (to sermonise or to take them to task for perceived violations); and (iii) making avoidable adverse comments and observations against persons who are not parties. It should be remembered that exercise of such power results in eroding the confidence of the public, rather than creating trust and faith in the judiciary. Be that as it may."
DISPOSAL:-
18. The learned Subordinate Judge failed to consider the principles governing the law of contempt and allowed the application filed by the respondent to implead the petitioners as parties to the proceedings for contempt and ultimately punished them for the sin committed by their predecessor-in-interest. In any case, there was nothing to indicate that the petitioners were aware of the order of attachment passed by the learned trial Judge. In such circumstances I am of the view that the learned trial Judge was not justified in convicting the revision petitioners.
19. In the result, the order dated 16.4.2009 is set aside. The learned trial Judge is directed to return the fine paid by the first petitioner forthwith. The civil revision petition is allowed accordingly. Consequently the connected MP is closed. No costs.
Tr/ To The Subordinate Court, Chidambaram