A. Ramalingam vs V.V. Mahalinga Nadar

(1) After having heard learned counsel, and very carefully considered the situation in which we are called upon to exercise our jurisdiction under S.

3 of the Contempt of Courts Act, XXXII of 1952, we are clearly and definitely of the view that, assuming the facts to be as stated by the

petitioner, it would not be expedient in the interests of justice to exercise that jurisdiction here, for more than one reason. We are taking it that there

is a temporary prohibitory injunction decree made by the appellate Court, which has been disobeyed by the respondent, in the sense that he has

erected certain buildings in infringement of that prohibitory injunction. In such a case, it is obvious that Order XXXIX, Rule 2(3) of the CPC

provides a clear and adequate remedy, the party aggrieved may bring it to the notice of the Court granting the injunction, that its decree or order

has not been respected, and that Court, after due enquiry, may exercise the punitive powers against the person in disobedience, under the terms of

that rule.

(2) Learned counsel for petitioner strenuously contends that the existence of any such alternative remedy to his client, will not take away the

contempt jurisdiction of this Court. He has also relied upon a decision of a Bench of the Calcutta High Court in Lala Shyam Sundar v. Lala Baij

Nath Prasad, 68 Cal WN 148 for the view that breach of an undertaking given to Court by any person in a proceeding, would be misconduct

amounting to contempt. Learned counsel has further cited and relied upon the judgment of Panchapakesa Ayyar, J. In Nari Chinnabba Chetty Vs.

E. Chengalroya Chetty and Others, for the view that Order XXI Rule 32(5) of the CPC was intended to cover only mandatory injunctions, and

did not apply to prohibitory injunctions at all.

(3) We think it is sufficient to stress the following principles, which will be clearly relevant to a situation of the present kind. Essentially, contempt of

Court is a matter which concerns the administration of justice and the dignity and authority of judicial tribunals; a party can bring to the notice of

Court, facts constituting what may appear to amount to contempt of Court, for such action as the Court deems it expedient to adopt. But,

essentially, jurisdiction in contempt is not a right of a party, to be invoked for the redressal of his grievances; nor is it a mode by which the rights of

a party, adjudicated upon by a tribunal, can be enforced against another party. The entire corpus of execution law exists for the enforcement of

rights, by one party against another, which have been the subject matter of adjudication. In our view, there are sufficient grounds here to show that

it will be inexpedient and undesirable to institute proceedings in contempt jurisdiction, in a situation of this kind. Firstly, the facts themselves may be

in controversy, whether a deliberate flouting of a judicial order or decree has occurred, and we state this, irrespective of the merits of the instant

case. When they are in controversy, they cannot be ascertained without due enquiry. If the Court is to commence an action in contempt

jurisdiction, only after ascertaining facts at such an enquiry, obviously it will be converting itself into an agency for arriving at findings of fact which

may be a foundation for contempt jurisdiction. On the contrary, it would be in the interests of justice to exercise contempt jurisdiction, or to

commence to do so, only when the facts on the record ex facie support such a proceeding; any detailed enquiry must be left to the Court which

has passed the order and which is presumably fully acquainted with the subject-matter of its own decree of temporary prohibitory injunction. For

this reason, we are of the view that Order XXXIX, Rule 2(3) of the CPC is a far more adequate and satisfactory remedy in such cases. Again,

where the situation is strictly inter partes and third party rights are not involved, it is clearly more desirable that the Court which made the order of

injunction, should go into the facts, and ascertain the truth of the alleged disobedience, and the extent to which it has been wilful.

(4) As far the decision in Nari Chinnabba Chetty Vs. E. Chengalroya Chetty and Others, is concerned, it is really beside the point here, for the

question before us is not whether Order XXI, Rule 32(5) of the C. P. C provides, or does not provide, an effective mode for the applicant by

which to enforce the decree that he has obtained. The Calcutta decision that we have earlier referred to, merely indicates that, under such

circumstances, it may not be incorrect for the Court to act in contempt jurisdiction; even so, everything will obviously depend upon the particular

set of facts in the case that is before the Court. Another reason that actuates us is that where the matter is one of infringement of a decree or

decretal order embodying rights, as between parties, it is clearly not expedient that contempt jurisdiction should be invoked and exercised, in

essence, as a mode of executing that decree, or merely because other remedies may take time, or are more circumlocutory in character.

(5) In a very similar situation, on the facts, in Bukhtiarpur Bihar Light Rly. Co. Ltd. Vs. State of Bihar and Others, a Bench of that Court declined

to exercise jurisdiction by the issue of a writ of mandamus under Art. 226, where a flagrant and wilful disobedience of an agreement was alleged.

The Bench pointed out that the alternative legal remedy available to the aggrieved party was no less convenient beneficial and effectual; the writ

power was discretionary in character, and the party must ordinarily resort to the Civil Court of competent jurisdiction, for necessary reliefs. The

principle of this decision applies here and on a stronger ground, because contempt jurisdiction should be reserved for what essentially brings the

administration of justice into contempt on unduly weakens it, as distinguished from a wrong that might be inflicted on a private party, by infringing a

decretal order of Court. The application is dismissed with these observations. The petitioner may pursue such alternative remedies as are available

to him in law, as we have pointed out, subject, of course, to all valid defence that may be raised thereto

(6) Petition dismissed.