Andhra HC (Pre-Telangana)
B. Brahmani Rao vs Prabhala Rajagopal And Anr. on 19 June, 2001
Equivalent citations: 2001(4)ALT262
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
ORDER Satyabrata Sinha, C.J.
1. This contempt application arises out of an order dated 28th September, 1998 passed by a Division Bench of this Court in C.M.A. Nos. 1102 and 1103 of 1994 directing:
"Having regard to the above and in particular the choice expressed by the party-in-person, the injunction is modified and restricted to the extent of Flat No. 2 in Block No. B of second floor of the plaint schedule construction. In other words, there will be an injunction restraining the defendants 1 and 2 from, in any way, alienating or giving possession of Flat No. 2 in Block No. B of the second floor of the plaint schedule complex. The defendants are also injuncted not to alienate the undivided interest in the land, on which the multi-storeyed complex is raised, relatable to Flat No. 2 in Block No. B of the second floor of the complex pending disposal of the suit. In all other respects, the injunction is vacated.
If the party-in-person is so advised, it is always open to him to file an application in the lower Court for any relief that he may choose to seek and if such an application is filed, the same may be disposed of by the lower Court on its own merits and in accordance with law."
2. In the contempt petition, the petitioner alleges:
"5. The first respondent herein, in collusion with the 2nd respondent herein, deliberately disobeyed the above mentioned judgment of this Honourable Court. He set up a stranger namely Prabhala Anasuya, who is his wife, not one of his co-sharers, as owner of that flat No. 2 in second floor in "B" block with effect from 1.4.1995 in the Municipal Register as disclosed by Exhibit.X-3 marked in the suit and gave possession of that flat to some stranger tenants and has been all the while collecting rents from them through her and the same fact is disclosed by the Advocate-commissioner's report filed in I.A. No. 67 of 2000 in the suit on 18.4.2000. Copy of the said Commissioner's Report is annexed herewith as Annexure-6 which clearly proved that the 1st respondent herein, in collusion with the 2nd respondent herein, deliberately disobeyed the above mentioned injunctions granted by this Honourable Court in the judgment in A.A.O. Nos. 1102 and 1103 of 1994. I filed I.A. No. 765 of 1999 under Order 39 Rule 2(A) of C.P.C. in the Court below to order the defendants 1 and 2 who are the respondents herein to be detained in Civil Prison. Judgment in the suit was pronounced on 28.9.2000 in favour of myself and my wife, holding that we are entitled for execution of registered sale deed by defendants 1 and 2 in respect of Flat No. 2 in B-Block second floor in terms of the High Court order. On 29.9.2000 while applying for certified copy of the judgment my wife applied for certified copy of the order in the said I.A. No. 765 of 1999 and that copy application No. 16022 of 2000 is returned to her on 29.11.2000 with endorsement that "there is no separate order."
3. A counter affidavit affirmed on 5.6.2001 has been filed on behalf of the alleged contemner-respondent No. 1 stating that he had not been served with the enclosures and upon receipt of the same, he would file his additional affidavit . The petitioner however pointed out that all such annexures are served on the respondents. In spite of that, the respondent has not chosen to file any additional counter-affidavit.
4. Further, the respondent, alleged contemner No. 1, in his counter affidavit accepts that he had inducted a tenant in the suit property who is known to him but he had not transferred the property in favour of anybody. In his own words he stated in the counter affidavit:
"11. It is respectfully submitted that out of eight flats allotted to our share, we all the members of the family have taken the flats. We have three sisters and mother apart from two brothers including the flat and me in question was tentatively kept in the name of my wife and in fact the builder or myself never executed any sale deed or alienation in her favour. It is only by virtue of the understanding the flat was kept in the name of my wife. We have not given possession of the flat and created any rights in favour of any third parties. As the flat has to be safeguarded, we have kept one tenant who is known to us and who will abide by the orders of this honourable Court. We are prepared to abide by the decision of this Court that may be ultimately given in the case. There is absolutely no intention on our part to commit any contempt or disobey the orders of the Honourable Court.
12. It is submitted that as a contention is available to us regarding the binding nature of the order passed in the C.M.A., we are advancing that contention and we will have to abide by the decision of this Honourable Court. If anybody (nobody) is in possession of the flat, the same will be occupied by encroachers and the flat may get damaged in view of the fact that the same is near the sea-shore of Bay of Bengal and a lot of dust and pollution is caused to the flats and unless somebody keeps it clean, this property will get damaged. It is only with that intention we have kept the flat in the possession of a person known to us. Thus, we have not committed any contempt to the orders of the Honourable Court."
5. Mr. M.S.K. Sastry, learned counsel appearing on behalf of the alleged contemner-respondent No. 1 herein seeks to justify the action on the part of the contemner on the ground that an undertaking had been given by the builder to allot a flat in the second floor pursuant whereto, one person was required to be accommodated.
6. It really appears strange to us that despite the fact that an order of injunction had been passed by a Division Bench of this court restraining the defendants from not only alienating the property but also giving possession of the same, a justification as regards the action of the contemner is sought to be made.
7. Having regard to the aforementioned discussion, we are of the opinion that the alleged contemner-respondent No. 1 is guilty of commission of contempt of this Court by willfully disobeying the Court's order dated 28th September,1994 made in CMA Nos. 1102 and 1103 of 1994.
8. Mr. M.S.K. Sastry, learned counsel for the respondent No. 1, however, tenders unconditional apology. Such an apology being a belated one, cannot be accepted at this stage. However, it is stated before us that the flat in question has been vacated and the same is lying vacant. Although the alleged contemner-respondent No. 1 has committed contempt of this Court, in view of the subsequent events, we do not intend to pass any order imposing substantive punishment against him.
9. Having regard to the facts and circumstances of this case, we are of the opinion that interests of justice would be subserved if respondent No. 1 is directed to pay a fine of Rs. 100/-. Such an amount be deposited by the contemner with the Registrar (Judicial) in course of the day.
10. Insofar as respondent No. 2 is concerned, we are of the opinion that no case is made out as against him under the provisions of the Contempt of Courts Act. The Rule is discharged as far as respondent No. 2 is concerned.
10. The Contempt case is ordered accordingly.