J.D. Muthukrishnan vs Superintendent of Police and Others

S.S. Subramani, J.—Petitioner seeks to initiate contempt proceedings against respondents for the alleged willful disobedience of orders

passed in Cri. O. P. No. 8582 of 1992 dated 17-8-1992 and pass suitable orders and render justice.

Petitioner along with his mother and brothers filed O.S. 2125 of 1991 on the file of District Munsif, Poonamallee against Kundrakudi Aadinam

as well as his agent for an injunction to restrain them from interfering in any way with their peaceful possession of landed property to an extent of

1.42 acres.

Fourth respondent in the contempt application, agent of Aadhinam also filed a suit against petitioner and others stating that he was in possession

of the property and also filed an injunction application. An ad interim injunction was granted and the same was subsequently vacated by Munsif,

and finally in C.R.P. 2786 of 1993 this Court also confirmed the order of vacation of injunction against Adhinam. It was thereafter 4th respondent

again tried to interfere with the possession of petitioner, which necessitated for filing of O.S. 2125 of 1991 on the file of District Munsif Court,

Poonamallee. Petitioner also filed I. A. 2842 of 1991 and injunction was granted and subsequently the same was made absolute on 14-9-1992.

Even though 4th respondent and Aadhinam preferred appeal in C.M.A 31 of 1992, the same was subsequently withdrawn. Both the suits in O.S.

2177 of 1990 and O.S. 2125 of 1991 were transferred to the file of District Munsif Court, Tambaram and the suits are pending.

While injunction was in force, 4th respondent and Aadhinam, the third respondent again attempted to interfere in the possession of petitioner,

which necessitated petitioner in coming to this Court in Cri. O. P. No. 8582 of 1992 and this Court passed an order granting police protection to

enforce the order of injunction.

It is said that 4th respondent is attempting to interfere with the possession along with others and he is flouting the orders of injunction. It is said

that one Deepam Agencies are making constructions in the property and the order of injunction against 4th respondent was also brought to their

notice. A Lawyers''s notice was also issued to them. In spite of it, they are attempting to put up construction in the property and police also refused

to interfere in their action, though such direction is given to them by this Court.

Accordingly to petitioner, the disobedience is willful and they committed contempt of Court. They are flouting orders of this Court and they are

not prepared to obey the orders of Court. It is therefore prayed that proceedings will have to be initiated against respondents for their willful

disobedience of orders of this Court.

Separate counter affidavits have been filed by respondents 2, 3, 4, 5 and 6.

In the counter affidavit of second respondent, it is said that he is working as Inspector of Police. It is his case that he has perused the documents

and found that the property stands in the name of Aadhinam. Petitioner did not appear before him in spite of orders passed by this Court directing

police protection. At the time when he went to property it was found that a school, church and auditorium have been constructed and that the

petitioner was not in possession of the property. He also referred to O.S. 41 of 1998 filed by one B.K. Pillai in which he has been arrayed is a

party and the subject-matter of the litigation is part of 1.42 acres, to which petitioner was granted interim orders. According to second respondent,

he has done what all he could do as his duty in accordance with law and whenever trespasser was brought to his knowledge, he has also registered

case. It is also said that this Court has not given direction to vacate the tenants and students of school and therefore, he cannot dispossess the

occupants.

In the counter affidavit of third respondent, who is Aadhinam, it is only said that he is not aware of the proceedings and it is for 4th respondent

who is to answer the same.

In the counter affidavit of fourth respondent, he has said that he is in possession of property and various facts are also alleged . He also admits

that litigations are pending. He has also said that very same petitioner moved Munsif Court under Order 39, Rule 2A for initiating action for willful

disobedience of orders of injunction.

In the counter affidavit of 5th respondent it is said that they have obtained lease from 5th respondent on 10-10-1991 and constructed school

building and running Shrine Velankanni Secondary School and children in the age of 3 to 13 are studying therein. He has also filed O.S. 41 of

1998 on the file of District Munsif Court, Said pet and the same is pending.

In the counter affidavit of 6th respondent it is said that they have obtained lease of one and half ground land from one Marimuthu Naicker and

they got into possession on rental arrangement on 15-3-1997 which came into effect on 1-4-1997. They have put up temporary structures and it is

said that they have nothing to do with 4th respondent. It prayed for dismissal of contempt application.

The question to be considered is whether respondents are liable to be proceeded for violating the orders of this Court ?

Criminal O.P. No. 8582 of 1992 was filed by petitioner under following circumstances :

Petitioner herein filed O.S. 2125 of 1991 on the file of District Munsif Court, Poonamallee and filed I.A. 2842 of 1991 to restrain Kundrakudi

Aadhinam and 4th respondent herein from interfering in his possession and enjoyment of property. Entire facts are narrated in the order of Justice

Swamidurai in Crl. O.P. No. 8582 of 1992 and this Court passed the following orders'':

...for the applicant herein that in the context of the refusal of ample police protection by the concerned police in spite of the interim injunction

granted by the learned District Munsif of Poonamallee in the application and the suit referred to in this application, I hereby direct the applicant to

move the District Munsif ''s Court Poonamallee immediately and get an order for Police protection from the concerned Police on the strength of the

order of interim injunction granted by the learned District Munsif in the matter"" in question and the learned District Munsif, Poonamallee, is hereby

directed to consider the matter on merits.

It is this order said to be violated by respondents.

Some more facts are also required to be considered before passing order on this application. Kundrakudi Aadhinam filed suit in O.S. 2177 of

1990 on the file of District Munsif Court, Poonamallee and the suit was filed on 4-11 -1990. In that suit they claimed that the suit property was in

their possession and petitioner, his mother and brothers are attempting to interfere with their possession. In that suit, an ad interim injunction was

sought for and the same was granted, restraining petitioners and other from interfering with the possession in the property. Subsequently, after

hearing petitioner that order was vacated. Aggrieved by that order, Aadhinam filed CMA 8 of 1991 on the file of Subordinate Court, Poonamallee

who originally dismissed the appeal. Matter was taken to this Court in CRP 2786 of 2993 and dismissal order was set aside and CMA was

directed to be taken up for fresh disposal. CMA was again dismissed and Aadhinam and 4th respondent again came to this Court in revision

petition. The revision was allowed and CMA was directed to be disposed of afresh. Thereafter, by order dated 30-7-1993 CMA was allowed

and an ad interim injunction was granted restraining petitioner and others from trespassing in the suit property. That order was challenged before

this Court in. CRP 2786 of 1993. Learned Judge of this Court set aside the order in CMA and restored the order passed by Munsif vacating

injunction.

It was in the meanwhile petitioner filed O.S. 2125 of 1991 restraining Aadhinam and 4th respondent and others from interfering with their

possession. An ad interim injunction was granted and subsequently order was also made absolute. Adhinam and 4th respondent filed CMA 31 of

1992, but subsequently, the same was withdrawn.

In view of these two orders, one thing is clear that there is a prohibitory order against Aadhinam and 4th respondent from interfere in the

possession of petitioners and there is also another order refusing to grant relief of injunction asked for by Aadhinam and 4th respondent in which

possession of petitioner is found.

Crl. O.P. was filed pursuant to the ad interim injunction granted in O.S. 2125 of 1991. Relevant portion of which I have already extracted

shows that petitioner and others are also given necessary police protection to implement the order of injunction. Police was also given necessary

direction to see that the interim order is maintained, until the same is varied by some other order. As on date, order has not been varied. I only find

that the same has been confirmed by Court. Therefore, a duty is cast on police. authorities to see that the order of injunction is confirmed.

Order in Crl. O.P. was passed on 7-8-1992 and subsequently on 14-9-1992, interim order already granted was confirmed by trial Court and

C.M.A. taken was also allowed to be withdrawn.

Further question that arises for consideration is whether grounds have been made out for initiating contempt. Except 6th respondent, other

respondents are claiming only under third respondent. 4th respondent is only power of attorney of third respondent. In the counter affidavit of 4th

respondent except for narrating how the properties are in their possession, he has no excuse why the order in Crl. O.P. cannot be implemented.

Third respondent has only filed counter affidavit that he permanently resides only in far away place from the plaint property and he has not violated

the interim order and 4th respondent alone knows the details of actions taken.

In the order in CRP 2786 of 1993, this Court found that petitioners are in possession. An argument was also put forward before learned Judge

that 5th respondent is running a school. There are sheds and other constructions put up therein. Learned Judge refused to entertain the plea on the

ground that plaint did not disclose any right alleged to have been created in favour of 5th respondent. In the counter affidavit of 5th respondent, it is

said that they have taken lease from 4th respondent on 10-10-1991.

O. S. 2125 of 1991 was filed by petitioner and others on 11-11-1991 and possession has been found in their favour. It is admitted by all sides

that property is 1.42 acres. On 27-11-1990, Commissioner visited the property in O.S. 2177 of 1990 from which it was found that except for

name board in the property , there was no other structures except two huts on the borders of the plaint property. The alleged lease was granted

pending suit and the same will not be binding on petitioner and others. Even on this date 5th respondent has not cared to produce lease deed to

show that he has obtained possession on 10-10-1991. No materials also placed by 5th respondent to show that he has put up constructions

before the suit was filed by petitioner. No construction could have been put within one month from the date of alleged lease deed. The ad interim

order was granted on 11-11-1991 itself. Taking into consideration these facts, 1 feel 5th respondent might have come into possession or

constructed building long after the suit was filed by petitioner. When O.S. 2125 of 1991 was filed, respondents 3 and 4 did not contend that they

have already leased out property to 5th respondent and he is in possession. What they contended was they are in physical possession of property

and petitioners are not entitled to possession.

Considering these circumstances, I feel that the present claim put forward by 5th respondent is only an afterthought. Respondents 3 and 4

cannot put forward such a contention having taken a definite stand. 5th respondent is also bound by the same. I feel that the action of 5th

respondent in putting forward such contention and putting construction in the property is intended only to defeat the rights of petitioner who is

found to be in possession at least in the interlocutory stage, which has become final. Question of knowledge in such cases may not arise because

respondents 3 and 4 are aware of all the proceedings, and if they have entered into any transaction, that can be treated only with an intention to

flout the orders of this Court.

The case of 6th respondent is also similar. He claims right under some other person, but forms part of the same property. No documents were

filed by 6th respondent to show that Marimuthu referred to in the counter has got any right over the property nor documents in their favour were

placed before Court. Except for allegation that they are claiming under third party, I did not find any material to come to such conclusion.

From the above materials it is clear that there had been an intentional flouting of orders of interim injunction and direction by this Court to give

necessary police protection to implement the order was also not complied with by police officers as and when demanded.

In the counter affidavit of second respondent it is said that he has verified the records from Municipal office and records are in favour of third

and 4th respondent. What is the jurisdiction of second respondent to consider the documents when Civil Court has already held that the

possession is with petitioner ? If he has gone and verified the records in a Municipal Office that only shows that in spite of orders of this Court, he

does not want to implement the order of injunction and give police protection. But somehow or other wanted to help other parties. A Police

Officers, who is excepted to obey the orders of this Court has disregarded the same and has justified his inaction. The contention of Police Officer

that petitioner must come before him and seek police protection itself is sufficient that they are not prepared to obey the orders of this Court.

Another contention of 4th respondent is that petitioner has already moved trial Court for initiating action under Order 39, Rule 2A of CPC for

violation of order of injunction. I do not think pendency of that application will be bar for entertaining proceedings before this Court. The decision

reported in Vidya Charan Shukla Vs. Tamil Nadu Olympic Association and another, completely answers the said point. Their Lordships in the said

Judgment at paragraph 46 in page 2757 held thus.

We can see thus clearly that the Courts in India invariably accepted the law applied in England and found (1) a party to the suit if he had notice

or knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the

order of injunction guilty of civil contempt and otherwise found a third party guilty of criminal contempt if he has been found knowingly obstructing

implementation of its order of direction, if it is found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the

order of the learned single Judge was directed to his conduct also and he violated the order after notice or knowledge, he shall be guilty of civil

contempt. He can still be found guilty of civil contempt, if he is found to have aided and abetted the violation of the order of the Court. Even

otherwise it is found that he obstructed or attempted to obstruct the implementation of the Court''s injunction/direction, he may be found guilty of

criminal contempt provided he had the notice or the knowledge of the order of the Court. It will be only after a determination of the nature of the

disobedience that it will be possible for the Court to say whether the procedure applied to a civil contempt shall be applied to the contempt

proceedings in his case or the procedure applied to a criminal contempt, will be applied to it. In the former case, the learned single Judge shall be

competent to proceed. In the latter case, it shall be before a Division Bench and subject to such conditions as are envisaged under the Contempt of

Courts Act, 1971. We have however no hesitation, in view of the principles of law noticed by us that this Court''s power as the Court of Record

will extend not only to the determination of the contempt but also the determination whether on the'' allegations brought before it, a civil contempt is

made out and instead of any action of committal for contempt, the Court should make any such order which would be in the administration of

justice or not. We have already noticed that there are provisions in Order XXXIX, Rule 2A of the CPC as a remedy for the violation of temporary

or interim injunction. Besides what is contemplated under Order XXXIX, Rule 2A of the Code of Civil Procedure, Courts have found another

source of power in Section 151 of the CPC and if that is also ignored for a moment, this Court''s power as a Court of Record and a Court of

Special Jurisdiction is preserved under Arts. 215 and 225 of the Constitution of India. There have been cases before several Courts in which when

faced with situations that some order or direction was violated and the violation resulted in grave and serious injury, the Courts took the view that

the CPC is not exhaustive. There are cases which say that if remedy to do justice is not provided for in the Code or any other Act, the High Court

must not fold its hands and allow injustice to be done.

I find that there is violation of orders of this Court. The Court can also take notice of the fact that this Court exercised the jurisdiction only

because of interim order in favour of petitioner. That order even now stands and confirmed by subsequent order. For that reason, petitioners will

be legally entitled to order in Crl. O.P. enforced.

But before punishing respondents, I feel it is only proper that one more opportunity must be given to them. I hold that these respondents have

violated interim order and respondents 1 and 2 have disregarded the orders passed by this Court in Crl. O.P. by not giving police protection and

failed to implement injunction order as was directed by this Court. By the silence or inaction, they have allowed respondent 3 onwards to inter- I

fere the possession of petitioner, already declared by Civil Court. The violation is intentional.

I give respondents 3,4, 5 and 6,15 days time from today to vacate the property in 1.42 acres referred to in the order in Crl. O.P. and hand

over possession to petitioner. In case they fail to do so, respondents 1 and 2 are duty bound to see that the order of injunction is implemented as

was directed in the Crl. O.P. which means they have to see that all occupants including respondents 3, 4, 5 and 6 vacate from the property and

also dismantle entire structure. On expiry of 15 days if respondents 3, 4, 5 and 6 do not vacate from the building, respondents 1 and 2 shall act

immediately and see that the possession of property is restored to its original position. Any failure on the part of respondents to obey this order will

make respondents liable to be punished under Contempt of Courts Act. For reporting compliance and for further orders, if any, post the matter on

23-3-1999.