Dilli Raj vs K. Subban

Abdul Hadi, J.—This application by the 4th respondent in S.A. No. 70 of 1990, who is one of the plaintiffs in O.S. No. 4524 of 1983 on

the file of III Asst. Judge, City Civil Court, Madras, is for punishing the respondent K. Subban, who is the 2nd defendant in the suit and the

appellant in the Second Appeal for Contempt of Court for having disobeyed the decree dated 9-8-1995 in the said Second Appeal, by which,

inter alia, a permanent injunction, restraining the respondent from interfering with the possession of the suit property by the plaintiffs, was granted.

The relevant allegation in the affidavit in support of the application is as follows:-

the Respondent attempted to trespass into the ''A'' Schedule Property and to construct the huts therein. Immediately I lodged a Police Complaint

the Respondent''s son viz. Murugan came to the said police station and he gave an undertaking in writing that he would not put up any construction

in the said ''A'' Schedule Property. However, on 21.8.95 night, the Respondent trespassed into the ''A'' schedule property and constructed the

huts Next day, I came to know the said illegal action of the Respondent and rushed to the said police station and informed about the illegal action

of the Respondent I also lodged a complaint on 24.8.95 to the Inspector of Police the respondent has filed a suit in O.S. No. 6477/95 on the file

of II Asst. Judge City Civil Court at Madras against me praying for a decree of permanent injunction inter alia contending that the respondent is the

absolute owner of the land comprised in survey numbers in Old R.S. No. 1793/1. Now R.S. No. 1794/40 of the extent of 845 square feet which

forms the ''A'' Schedule Property

As against the above allegations in the affidavit, the relevant allegations in the counter affidavit of the respondent K. Subban are as follows: -

there was no trespass at all The petitioner has falsely filed a police complaint to the Pulianthope Police Station for the alleged trespass. On that my

son S. Murugan was taken to the police station and by threat and coercion an undertaking was taken from him, stating that he won''t construct

there So, the alleged trespass and police complaint are all motivated I am in possession of 845-1/2 sq. ft. When the Asst. Commissioner,

Puliantope Range insisted on handing over possession, I sent a telegram to the D.G.P., Commissioner, and Asst. Commissioner about the threat of

trespass by the petitioner with Police aid the police were harassing me frequently and to avoid that, and awaiting orders from the Supreme Court

against S.A. No. 70 of 1990, I have filed a suit in O.S. No. 6477 of 1995 for a decree of permanent injunction in I.A. No. 12560 of 1995 against

the petitioner herein.

On going through the abovesaid allegations and counter allegations, I find that there is no denial in the counter affidavit to the allegation that on

21-8-1995 night the respondent constructed the huts in the A schedule property. The injunction decree was granted on 9-8-1995. While so if the

respondent puts up construction on the said A Schedule property on 21-8-1995, he certainly commits contempt of court. Further, the allegation in

the supporting affidavit is that prior to this construction on the night of 21-8-1995, the respondent''s son Murugan came to the Police Station and

gave an undertaking in writing that he would not put up any construction in the said A schedule property. Regarding this allegation, the counter

does not deny the factum of respondent''s son giving the above said undertaking. That means, even though he knew about the above said

undertaking given by his son, he did put up the construction as stated above. Therefore, disobedience of the decree for injunction is still graver.

No doubt, what is actually stated in the counter affidavit is that by threat and coercion an undertaking was taken from his son. But, it is not

stated in the counter affidavit that the above said threat and coercion was reported to any higher police authority on or after 21-8-1995. The only

allegation in the counter affidavit is that the respondent sent a telegram to the Director General of Police, Commissioner and Assistant

Commissioner about the threat of trespass by the petitioner with police aid. Even here, it is not stated that threat was made in obtaining the above

said undertaking. But, threat of trespass by the petitioner alone seems to have been informed by way of the above said telegram. No doubt,

learned Counsel for the respondent sought to show me a letter alleged to have been written by the respondent to a Police Officer speaking about

the alleged threat and coercion by the police in obtaining the above said undertaking from the son of the respondent. But, there is no reference at

all to such letter in the counter affidavit. So I do not entertain the said letter.

All these apart, despite the above said injunction decree granted against the respondent, the respondent has illegally filed the above said O.S.

No. 6477 of 1995, seeking a permanent injunction in favour of him and against the petitioner. The plaint in the said suit is dated 8-9-1995, while

the above said injunction decree was on 9-8-1995. Learned counsel for the respondent admits that the suit O.S. No. 6477 of 1995 was also in

relation to the same A schedule property in the earlier suit O.S. No. 4524 of 1983. The above referred to R.S. No. 1794/40 of an extent of about

840 sq. ft. is the suit property in both the suits. Therefore, the very filing of O.S. No. 6477 of 1995 and the LA. No. 12560 of 1995 therein itself

is contempt of Court committed by the respondent (also see Boorasamy Padayachi Vs. Muthukumara Mudaliar and Another, It is also a flagrant

abuse of process of Court on the part of the respondent. When the petitioner''s injunction decree is against him in relation to a property, he cannot

file a subsequent suit and seek injunction against the petitioner herein in relation to the same property.

No doubt, learned Counsel for the respondent submits, as also mentioned in the counter affidavit, that the police was harassing the respondent

and to avoid that he has filed the said subsequent suit. If really, the police was harassing the respondent illegally, the respondent could very well

take action against the police either by complaint to higher police authorities or by seeking suitable remedies from the Court. He cannot on that

score file the above said subsequent suit in total disregard of the earlier injunction decree against him.

Further, the counter affidavit also says that awaiting orders from the Supreme Court against the judgement and decree in S.A. No. 70 of 1990,

the respondent has filed the subsequent suit. This is also equally blameworthy. If really he has filed an appeal in the Supreme Court against the

judgment and decree in S.A. No. 70 of 1990, he could very well get it numbered and move the Supreme Court for suitable interim orders, which

could save him from any alleged botheration pursuant to the decree in the Second Appeal. But, admittedly the alleged SLP filed in the Supreme

Court against the judgement and decree in S.A. No. 70 of 1990 has not even been numbered so far. Having not obtained any contra orders from

the Supreme Court, the respondent has only to obey the decree in S.A. No. 70 of 1990 and he cannot file another suit, seeking any contra order

awaiting orders from the Supreme Court"". All these features clearly show that the respondent is bent upon flagrantly violating the above said

decree in S.A. No. 70 of 1990.

No doubt, learned counsel for the respondent, realising the seriousness and the grave wrong committed by the respondent in having filed the

above said second suit, finally submits that the respondent would withdraw the said subsequent suit. Even though the respondent may withdraw the

suit, the contempt committed by him, in having filed the said suit, cannot go unpunished. Learned counsel for the applicant also drew my attention

to Ram Prakash & Brothers v. Nagar Mahapalika, Lucknow (1983 Crl.LJ.753), which observed as follows:-

Since the order of the court below merged in the order of this court, this Court is also the court which granted the injunction or made the order.

The appellate court has the same power to order punishment as the original court has.

In other words, in the present case, even though the injunction was originally granted by the first appellate court and it was only confirmed by this

Court in S.A. No. 70 1990, this Contempt Application would lie even before this Court.

Learned counsel for the applicant also submits that in such a situation, the respondent should be directed to remove the construction put up. In

this connection, he also relies on Century Flour Mills v. S. Suppiah (A.I.R.1975 Mad 270 = 88 L.W. 285 (FB). which observed thus:-

Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy

to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case,

but it is bound to be exercised in that manner in the interest of justice. Even apart from Section 151, we should observe that as a matter of judicial

policy, the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in

disobedience of the Court''s orders.

Similar observations are there in a number of subsequent decisions including Vidya Charan Shukla v. Tamil Nadu Olympic Association

represented by its General Secretary K. Murugan (1991-2-L.W.295 (F.B.) and Kisan R. Bhatijha and another v. The Deputy Director,

Enforcement Directorate, Government of India and others (1995-2-L.W.(Crl.)451). Therefore, I direct the respondent to remove the above said

construction put up in the suit A schedule property by him, within three weeks from this date.

The net result is, I hold that the respondent is guilty of having committed contempt of Court and he is sentenced to pay a fine of Rs. 2,000/- in

default thereof to undergo simple imprisonment for 15 days. The respondent is granted three weeks time to pay the fine.