G.R. Amarnath vs M.N. Narasimha Murthy Naik and Others

Budihal R.B., J—This is the contempt petition filed by the complainant alleging that the complainant is the partner of M/s. Prerana Developers, a registered partnership firm. The accused claiming to be the Managing Partner of M/s. Prerana Developers filed a petition before the District Court, Tumkur in Arbitration Case No. 13/2012 against the complainant for an order of temporary injunction to restrain the complainant from interfering with the administration of the partnership firm till the arbitral proceedings is resolved. It is stated in the said petition that in the partnership deed dated 1.4.2010, it was proposed that the complainant has to retire from the partnership firm after one year. Based on the said proposal, it is alleged that the complainant has started to act hostile to the partnership firm and has indulged in the illegal acts. Even after one year, the complainant has not retired from the firm. The complainant herein alleged that the said arbitration case was filed on the basis of the tampered reconstituted deed dated 1.4.2010 and the accused have tampered clause 9 of the partnership deed, wherein they have inserted "that the party of the first and the second part shall retire after one year". Noticing the fact that there is such tampering of the reconstituted deed dated 1.4.2010, the complainant filed an application under section 151 of CPC in arbitration case No. 13/2012, seeking a direction against the accused to produce the reconstituted partnership deed dated 1.4.2010. Accordingly, direction was issued to the accused herein to produce the said original reconstituted partnership deed. In spite of such direction, the accused have not produced the said original reconstituted partnership deed before the Court. But the accused herein were managed to get ex-parte order of injunction against the complainant herein in the said arbitration case. But subsequently, the said ex-parte order was vacated after hearing the complainant. The accused herein challenged the said order in W.P. Nos. 58218/2013 and 58466/2013. Though initially, this Court stayed the order dated 20.12.2013, but the same was vacated by this Court by order dated 10.1.2014. The said arbitration case is still pending. Accused No. 2 based on the tampered and forged reconstituted partnership deed dated 1.4.2010 had sought for appointment of an Arbitrator in CMP No. 156/2012 but the same was dismissed as withdrawn from this Court by order dated 7.8.2012. Accused No. 1 has now filed CMP No. 156/2013 for appointment of an arbitrator by relaying upon the reconstituted partnership deed dated 1.4.2010. The accused persons are avoiding to produce the original documents before the Court. Thus, accused have obstructed and interfered with the Court proceedings by producing the tampered documents in the form of reconstituted partnership deed dated 1.4.2010 in A.C. No. 13/2012. Hence, the complainant filed the present petition to initiate contempt proceedings against the accused.

The accused have appeared and filed their objection statement denying the allegations made by the complainant. They have denied the fact that they have tampered the original reconstituted partnership deed dated 1.4.2010 and accordingly, they have sought for dismissal of the contempt petition.

Heard the arguments of the learned counsel appearing for the complainant and also the learned Senior counsel appearing on behalf of the accused.

Learned counsel for the complainant made submission that by the tampered and forged reconstituted partnership deed dated 1.4.2010, the accused filed the arbitration case No. 13/2012 before the District Court at Tumkur and in the said document, the accused have inserted that after one year, the complainant has to retire from the partnership firm. On the basis of such document, the accused got ex-parte injunction order against the complainant herein and the complainant by bringing to the notice about the true facts, got vacation of the said ex-parte injunction order. It is submitted that when the order of vacating the temporary injunction was challenged before this Court in the writ proceedings by the accused, though at the first instance, the said order was stayed, but after appearance of the complainant herein in the writ proceedings also, this Court vacated the said order. Hence, the learned counsel submitted that while passing the orders, both the Courts i.e., District Court, Tumkur as well as this Court have clearly observed that there is tampering of the original reconstituted partnership deed. Hence, the learned counsel submitted that the accused have committed the contempt of Court and therefore, charge may be framed against them. In support of his contention, the learned counsel relied upon the decision of Hon''ble Supreme Court in the case of Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Others, AIR 1989 SC 2285 : (1989) 1 JT 258 Supp : (1989) 2 SCALE 692 : (1989) 2 SCC 418 Supp : (1989) 1 SCR 223 Supp .

Per contra, learned Senior counsel appearing on behalf of the accused submitted that the accused have not at all tampered the reconstituted partnership deed and only the false averments are made by the complainant herein. It is the complainant who is having the custody of the original reconstituted partnership deed dated 1.4.2010 and it is the complainant himself made such tampering in the said document. The learned Senior Counsel made submission that though the District Court at Tumkur, while vacating the ex-parte temporary injunction order might have observed that there is tampering by the accused herein so also this Court while vacating the interim stay order in the writ proceedings has observed as aforesaid, but the allegation and counter allegation of the parties regarding the alleged tampering of the document is yet to be decided by the competent Court, which is not done. Only on the basis of the observation made by the Courts as submitted by the other side, it cannot be said that the accused herein have committed the contempt of Court. The learned Senior counsel also submitted that the petition filed to initiate the contempt action against the accused is also barred by the law of limitation. Hence, he submitted to dismiss the petition. In support of his contention, the learned Senior counsel relied upon the decision of the Hon''ble Supreme Court in case of Om Prakash Jaiswal Vs. D.K. Mittal and Another [OVERRULED], AIR 2000 SC 1136 : (2000) CriLJ 1700 : (2000) 2 JT 293 : (2000) 2 SCALE 28 : (2000) 3 SCC 171 : (2000) 1 SCR 1064 : (2000) 1 UJ 524 : (2000) AIRSCW 722 : (2000) 1 Supreme 574 .

We have perused the pleadings of the parties, the documents produced and the decisions relied upon by both the sides so also the submissions made at the Bar by both sides.

Perusing the impugned order passed by the I Additional District and Sessions Judge, Tumkur, on I.A. No. 6 filed under Section 151 of CPC by the complainant herein, the same was allowed and the accused herein were directed to produce the original reconstituted partnership deed dated 1.4.2010. We have also perused the order dated 13.9.2013 passed by the I additional District Court, Tumkur in AC No. 13/2012 on I.A. No. 9 filed by the complainant seeking vacation of the interim order granted and the same was also allowed and ex-parte order of temporary injunction dated 10.07.2012 was vacated. In the writ proceedings, in W.P. No. 58218/2013 (GM-RES) and 58466/2013, this Court vacated the interim order dated 20.12.2013 by allowing the application I.A. No. 1/2014. But this Court while passing such order, made it clear on page No. 5 of the said order "this shall not however be treated as an observation with regard to the pending CMP which, in any event will be considered by the Court before which it is pending. The observation is only to find out as to whether there is any reason to continue the interim order". This itself goes to show that even this Court has not given its finding that it is the accused herein who have tampered the said reconstituted partnership deed. As we have already observed above, it is the allegation of the accused herein that the complainant has tampered the said document. When such being the allegation and counter allegation, which is yet to be decided, and only on the basis of the observation made by the District Court at Tumkur while disposing of the interim applications I.A. Nos. 6 and 9, it cannot be said that the complainant herein has produced the prima facie material to show that accused herein have committed the contempt of Court. In this regard, it is relevant to refer to para No. 17 of the judgment of the Hon''ble Supreme Court relied upon by the learned Senior Counsel which is referred above.

"The jurisdiction to punish for contempt is summary, but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the court. Contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of."

We have also perused the decision relied upon by the learned Counsel for the complainant. In view of the facts and circumstances of this case and our discussion as above, the said decision will not come to the aid and assistance of the complainant.

Therefore, looking to the materials placed on record and the legal position and as there is no definite finding and final adjudication with regards to alleged tampering of the documents, we are of the clear opinion that the complainant has not made out the prima facie case to frame charge against the accused herein for contempt of court and to proceed with the trial. Accordingly, the contempt petition filed by the complainant is dismissed and the accused are discharged from the proceedings.