Karnataka High Court
Sri S Shankar vs Sri D Selvam on 19 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CCC No.1179 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
CIVIL CONTEMPT PETITION No.1179 OF 2018
BETWEEN:
1. SRI S. SHANKAR,
S/O LATE M. SHAMANNA,
AGED ABOUT 65 YEARS,
PRESENTLY R/A NO 6, II CROSS,
VERMA LAYOUT EXTENSION,
OPP. R. R. TOWERS, AMRTUH NAGAR POST,
BENGALURU - 560092.
2. SRI SRIDHAR,
S/O LATE M. SHAMANNA,
AGED ABOUT 63 YEARS,
PRESENTLY R/A NO 6, II CROSS,
Digitally signed by VERMA LAYOUT EXTENSION,
MALATESH K C OPP. R. R. TOWERS, AMRTUH NAGAR POST,
Location: High BENGALURU - 560092.
Court of
Karnataka
3. SRI S. JAGADISH,
S/O LATE M. SHAMANNA,
AGED ABOUT 55 YEARS,
PRESENTLY R/A NO 6, II CROSS,
VERMA LAYOUT EXTENSION,
OPP R. R. TOWERS, AMRTUH NAGAR POST,
BENGALURU - 560092.
...COMPLAINANTS
(BY SRI VINAYAKA B. VISHNU, ADVOCATE)
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CCC No.1179 of 2018
AND:
1. SRI D. SELVAM,
S/O M. DORAIRAJ,
AGED ABOUT 84 YEARS,
R/AT NO 18, VENKATARAMANAPPA ROAD,
JAI BHARATH NAGAR,
BENGALURU - 560033.
2. SRI S. PRATAP,
S/O G. SELVARAJAN,
PROPRIETOR,
M/S S. P. CONSTRUCTIONS,
A PROPRIETARY CONCERN,
HAVING ITS OFFICE AT NO.401,
"TEJASWINI ENCLAVE",
4TH CROSS, THYAGARAJA LAYOUT,
JAI BHARATH NAGAR,
M. S. NAGAR POST,
BENGALURU - 560033.
3. SRI AMARNATH SELVAM,
S/O D. SELVAM,
AGED ABOUT 40 YEARS,
R/AT NO 18,
VENKATARAMANAPPA ROAD,
JAI BHARATH NAGAR,
BENGALURU 560033.
...ACCUSED
(BY SRI G. PAPIREDDY, SENIOR COUNSEL A/W
SRI V. VINODREDDY, ADVOCATE FOR A1 TO A3)
*****
THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE
CONTEMPT OF COURTS ACT 1971, R/W ARTICLE 215 OF THE
CONSTITUTION OF INDIA BY THE COMPLAINANTS, PRAYING
TO ALLOW THIS CONTEMPT PETITION AND CONSEQUENTLY
PUNISH THE ACCUSED HEREIN FOR THE WILFUL AND
DELIBERATE DISOBEDIENCE OF THE ORDER DATED
25.07.2011 PASSED BY THIS COURT IN RFA No.1911/2010.
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CCC No.1179 of 2018
THIS CCC COMING ON FOR ORDERS THIS DAY,
B.VEERAPPA J., MADE THE FOLLOWING:
ORDER
The complainants filed the present Civil Contempt Petition against the accused persons under the provisions of Sections 11 and 12 of the Contempt of Courts Act, 1971, alleging willful disobedience of the Order dated 25.07.2011 passed in RFA No.1911/2010, wherein, the co-ordinate Bench of this Court, while admitting the Regular First Appeal directed that the respondents shall not alienate the suit property in whatsoever manner even during pendency of the appeal. The suit property was described to be the house site bearing Corporation No.33, (in Survey No.62/3) at 16th Cross, J.B.Nagar, Corporation Division No.49, Bengaluru, measuring 106 feet North to South on one side and 96 feet North to South on another side and 33 feet East to West, bounded on the East by Venkatappa's property, West by Site No.2, North by property of Kuppaswamy Pillai and South by Road.
2. The grievance of the complainants in the present Contempt Petition is that, in spite of the interim order dated 25.07.2011 passed by the co-ordinate Bench of this Court in -4- CCC No.1179 of 2018 RFA No.1911/2010, the accused No.1-D.Selvam, executed a registered Joint Development Agreement dated 21.06.2012 in favour of accused No.2 and created third party interest. Thereby, accused No.1 has willfully violated the interim order dated 25.07.2011. Hence, filed the present Civil Contempt Petition on 28.03.2018.
3. In response to the notice issued by this Court in the present contempt petition, the accused No.1 filed two objections, both dated 07.01.2019. In the first objection, it is contended that there is inordinate delay 1,737 days in filing the contempt petition. The complainants have invoked the provisions of Sections 11 and 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India to seek for condonation of delay in filing the contempt petition. The said provisions cannot be invoked to seek condonation of delay, and therefore, the petition is liable to be dismissed. In the second objection, it is stated that, this Court, while admitting the Regular First Appeal, ordered that the respondents shall not alienate the suit property in whatsoever manner even during pendency of the Appeal and he was under the bonafide -5- CCC No.1179 of 2018 impression that the interim order of stay was granted in the Appeal. Subsequently, the complainants had filed I.A.No.1/2011 seeking temporary injunction to restrain him from putting up any construction or structure over the suit schedule property. He had filed objections to I.A.No.1/2011 inter alia stating that he may be permitted to take up construction at his own risk and subject to the result of the Appeal and that he will not plead any equity. In the light of the said statement, this Court by the order dated 30.09.2011 disposed of the I.A.No.1/2011 holding that any construction taken up by him over the suit property was subject to the result of the Appeal. It is further stated that, he had entrusted the construction work to accused No.2 for putting up construction in the suit schedule property by entering into a Joint Development Agreement. He had also executed a registered gift deed in favour of Amarnath Selvam-accused No.3 who is none other than his son, in respect of one residential apartment in the second floor of the building, on 07.10.2014. After realizing the interim Order passed by this Court, now he has revoked both the deeds i.e., gift deed and joint development agreement by separate revocation deeds. -6- CCC No.1179 of 2018 Thereby, he has stated that he has great respect to the interim Order passed by this Court and has no intention to disobey the Order passed in the pending Appeal. Thereby, he tendered unconditional apology for the bonafide mistake. It is further prayed that the mistake done in the circumstances stated supra may pardoned. The copies of revocation of gift deed and revocation of Joint Development Agreement are produced before this Court. It is further stated that he was not aware of the legal implications while executing the deeds during pendency of the Appeal.
4. We have heard the learned counsel for the parties to the lis.
5. Sri Vinayaka, learned counsel for the complainants, reiterating the averments made in the contempt petition, contended that in spite of the interim Order dated 25.07.2011 passed in RFA No.1911/2010, the accused No.1 alienated the suit property by way of registered Joint Development Agreement and there by created third party interest. Though subsequently, the said deeds were revoked, the fact remains that the accused have violated the interim Order granted by -7- CCC No.1179 of 2018 this Court. Thereby, they have to be punished under Section 12 of the Contempt of Courts Act. Therefore, sought to allow the contempt petition.
6. Sri G.Papi Reddy, learned Senior Counsel for accused Nos.1 to 3 contended that the co-ordinate Bench of this Court by the Order dated 25.07.2011 passed in RFA No.1911/2010 granted interim order directing the respondents not to alienate the suit property in whatsoever manner even during pendency of the appeal. In the said Regular First Appeal, D.Selvam- accused No.1 herein was arrayed as respondent No.1, one Shankar, Sridhar and Jagadish were arrayed as respondent Nos.2, 3 and 4, respectively. Pratap-accused No.2 and Amarnath Selvam-accused No.3 herein were not parties to the said Regular First Appeal. After receiving notice from this Court and realizing the mistake, accused No.1, immediately revoked the gift deed as well as Joint Development Agreement by separate deeds dated 05.01.2019 and filed objection by way of affidavit before this Court on 07.01.2019. Though, at the inception, there was violation of the interim order passed by this Court, after realizing the mistake, accused No.1 has -8- CCC No.1179 of 2018 revoked the Jointed Development Agreement and Gift Deed and has obeyed the Order passed by this Court. Admittedly, the Regular First Appeal is still pending for consideration. Learned counsel also submits that during pendency of the present Contempt Petition, the accused No.1 who violated the interim Order, died on 09.05.2021 and this Court by the Order dated 03.01.2023 dismissed the contempt petition against accused No.1 as abated. Thereby, nothing survives to proceed against accused Nos.2 and 3 who are not parties in the Regular First Appeal and therefore, sought to dismiss the contempt petition.
7. Having heard the learned counsel for the parties, it is not in dispute that one Mohammad Ali and Smt.P.Fathima are defendant Nos.4 and 5 in Original Suit No.3149/1993. Challenging the judgment and decree passed in the said suit, those defendant Nos.4 and 5 filed RFA No.1911/2010, in so far as it relates to declaration that plaintiff-D.Selvam is the absolute owner of the suit schedule property and restraining the defendants from interfering with plaintiff's possession and enjoyment of the suit property. The complainants herein were defendant Nos.1, 2 and 3 in the O.S.No.3149/1993 and -9- CCC No.1179 of 2018 respondent Nos.2, 3 and 4 in the RFA No.1911/2010. Mohammed Ali and Fathima, appellants in the RFA No.1911/2010 have not filed the Contempt Petition. They are not the aggrieved parties. Even otherwise, accused No.1- D.Selvam was the respondent No.1 in the said RFA No.1911/2010 who executed the Joint Development Agreement and Gift Deed and violated the interim orders passed by the coordinate Bench of this Court. Subsequently, when he received the notice in the present contempt petition, realised his mistake and has taken steps to revoke the said two deeds. The revocation of the deeds by the accused No.1 is not in dispute.
8. It is also not in dispute that during pendency of the present Contempt Petition, accused No.1-D.Selvam who violated the interim order, died on 09.05.2021 and the present contempt petition came to dismissed as abated as against accused No.1. The fact remains that accused Nos.2 and 3 are not parties to the Regular First Appeal and they have not violated the interim order granted in the Regular First Appeal and during the life time of accused No.1, he has revoked the
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CCC No.1179 of 2018Joint Development Agreement and gift deed and has shown respect to the interim order. Thereby, complainants have not made out any ground to proceed further.
9. Even assuming that accused No.1 violated the interim order, the fact remains that, subsequently he rectified the mistake. Subsequently, he died on 09.05.2021 and contempt petition came to be abated as against accused No.1. Thereby, nothing survives to proceed against accused Nos.2 and 3 in the present contempt petition, who are not parties to the Regular First Appeal.
10. Keeping in view the proviso and explanation I to Section 12 of the Contempt of Courts Act, the complainants have not made out any case to proceed further. It is well settled that Court has the power of contempt and that lethal power too accompanies with greater responsibility. Contempt is a weapon like Brahmastra to be used sparingly to remain effective. At the same time, a Judge has to guard the dignity of the court and take action in contempt and in case of necessity to impose appropriate exemplary punishment too. Keeping in view the above principle and taking into consideration the peculiar facts
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CCC No.1179 of 2018and circumstances of the present case, this is not a fit case to proceed further.
11. Accordingly, we pass the following:
ORDER The contempt proceedings are hereby dropped.
Sd/-
JUDGE Sd/-
JUDGE kcm