Contempt of Courts Act, 1971 - Section 2 (b)
- Code of Civil Procedure, 1908 - Order XXXIX Rule 2A - Where an injunction
under Order 39 Rule 1 and 2 of the Civil Procedure Code is granted by a
subordinate Court, High Court cannot punish the contemnor.
It is considered a
civil contempt punishable under Order 39 Rule 2A of the Code. It is outside the
purview of Section 2(b) of the contempt of Courts Act 1971 since the scope of
contempt of Court as contemplated under Order 39 Rule 2A (1) of Civil Procedure
Code is different and is narrower than the scope of civil contempt within the
meaning of Section 2(b) of the said Act 1971. The provision under Order 39 Rule
2A of CPC provides an elaborate and exhaustive provision for dealing with
breach of injunction order which is a serious matter since the Civil Court is
empowered to order to take away even the liberty of an individual by detention
of the person in a civil prison who has violated the order. So the power is
penal in nature and the burden is heavy on the person who alleges disobedience
to prove the ingredients of the offence beyond reasonable doubt since there has
to be a clear proof that the order so ordered was clear, distinct, unambiguous
and with full knowledge of the contemnor.
IN THE HIGH COURT AT CALCUTTA
(Criminal
Appellate Jurisdiction)
Present: The Hon’ble Justice Shivakant Prasad
Judgment on : 14.02.2019
CPAN 818
of 2018
Tapan Pal -Versus- Pronab Pal
For the Petitioner : Mr. Raja Basu Chowdhury Mr.
Satrajit Sinha Roy For the Alleged Contemnor : Mr. Udayan Dutta Mr. S. Roy Mr.
Santanu Das
Shivakant
Prasad, J.
This is an application under Article 215 of the
Constitution of India and Section 10 of the Contempt of Courts Act, 1971
alleging wilful, deliberate and contumacious violation of the order dated 2nd April, 2013 passed by the
Learned Civil Judge (Senior Division), 1st Court, Barasat in T.S. No. 852 of 2011 even after having
knowledge of the said order dated 2nd April, 2013 and the petitioner prayed for drawing
up proceeding of contempt against the respondent.
Brief facts leading to the instant case is that
the petitioner as the plaintiff instituted a suit for specific performance of
agreement for sale dated 10th November, 2008 being Title Suit No. 852 of 2011 in the Court of
Civil Judge (Senior Division), 1st Court, Barasat.
Petitioner case, is that the Respondent/Defendant
No. 2 in collusion with Maya Dhara, since deceased being the
predecessor-in-interest of the defendants 1(a), 1(b) and 1(c) had not only
changed the nature and character of the suit property but has also sold and
transferred by creating third party interest over the suit property in
violation of the order of injunction dated 2nd April, 2013. Last of such sale deed was executed
on 19th May, 2016 in violation of the
aforesaid order. Such facts has come to the light on 3rd May, 2017.
Said Maya Dhara, since deceased had sold the suit
property to the defendant No. 2 in the year 2011 and the premises had been
developed and elevated with several floors, already been used as partly
residential and partly commercial purposes by the respective third parties.
Thus, the petitioner is left without remedy other than compensation but such
losses cannot be compensated in terms of money.
Accordingly, the petitioner has sought for
direction upon the defendants/respondents to furnish the securities of Rs.
2,00,00,000/- (Rupees two crores) only by way of Bank Guarantee before the
Registrar Appellate Side as the suit property was sold in violation of the
order of injunction and further the said Defendant No.2/Contemnor be restrained
from creating third party interest over the suit property in wilful violation
of the order.
Mr. Raja Basu Chowdhury learned counsel for the petitioner
submitted that the predecessor-in-interest of the deponents 1(a), 1(b) and
1(c), namely, Maya Dhara, since deceased had entered into an agreement to sell
the suit property in favour of the petitioner/plaintiff on 10th November, 2008
which was duly executed for a consideration of Rs. 13,50,000/- by receiving a
sum of Rs.
1,50,000/- as the earnest money on certain terms
and conditions. After execution of the said Agreement for Sale the Plaintiff/
Petitioner further paid Rs.
1,50,000/-, thus a total earnest money of Rs.
3,00,000/- was paid to Maya Dhara, since deceased predecessor-in interest of
the 1(a), 1(b) and 1(c) but said Maya Dhara, since deceased ignoring the
agreement for sale with the plaintiff/petitioner sold the suit property to the
defendant no. 2 vide registered deed of sale being number 02496 in the year
2011 in violation of the said order of injunction which compelled the Plaintiff
to file the said suit for declaration, permanent and mandatory injunction
before the Civil Judge (Junior Division) 3rd Court at Sealdah being Civil Suit No. 189 of 2011
wherein temporary order of injunction over the suit property was granted on
contest by both parties.
Petitioner’s contention is that the said Maya
Dhara had not refunded the earnest money of Rs. 3,00,000/- on the contrary sold
the suit property to the Respondent/Defendant No. 2 and the cheque for refund
of the earnest money for Rs. 1,50,000/- issued by the said Maya Dhara since deceased
was dishonoured.
It is submitted that the respondents have
developed illegal construction over the suit property ignoring the order of
injunction. In spite of the directions of the Hon’ble High Court to dispose of
the interlocutory applications, expeditiously, those applications are still
pending. The petitioner had applied for police help before the Learned Court
below under the said circumstances for restraining the entry of unauthorized
occupants in the suit property which is still pending consideration to prevent
the violation of the said order of injunction dated 2nd April, 2013. The petitioner
also filed an application under Order 39 Rule 2A read with Section 151 of the
Code of Civil Procedure registered as Miscellaneous Case No. 149 of 2017 alleging
violation of the said order of injunction dated 2nd April, 2013. It is further contended that the
learned Court below has failed to deliver justice as necessitated by law which
created hindrance in the carriage of the proceedings by the plaintiff.
It is contended that the contemnors are guilty of
Contempt of Courts Act for violating the said order thereby lowering down the
prestige, dignity and respect of the Hon’ble Court for which the contemnor
should be sent to prison.
Mr. Udayan Dutta learned counsel for the alleged
contemnor submitted that they never attempted in any manner to violate or flout
the solemn order dated April 2, 2013 passed by the Learned Court and after the
said order none of the acts of the contemnor can be construed as contumacious
since on or about March 18, 2011 by a registered deed of conveyance the
respondent/contemnor purchased the suit property from Maya Dhara now deceased,
being the predecessor-in-interest of the respondent nos. 1(a) to 1(c) and after
the concerned municipality granted due sanction to raise construction in the
month of September, 2011, the construction of the building and/or the
agreements for sale to various intending purchasers were made much before April
2, 2013 and buyers were permitted to take possession of the respective flats on
various dates as per their agreements which were entered into by and between
the parties much before April 2, 2013. Since the buyers could not arrange
sufficient fund to register their Sale Deed, the registration of the said flats
unfortunately was done after April 2, 2013 which by any means can be construed
as violation of the direction of the solemn order, inasmuch as, the
transactions had commenced much before passing of the said solemn order.
Mr. Dutta lastly submitted that the petition under
Section 10 of the Contempt of Courts Act, 1971 is not maintainable in law and
in fact in the given case.
Mr. Basu Chowdhury referred to a decision in case
of Pallav Sheth Vs. Cusotdian & Ors. Reported in 2001
SCC 549 to argue that the High Court has right to exercise its power under
Article 215 of Constitution and impose punishment with reference to contempt of
Court Act 1971 relying on the observation in paragraphs 44 and 45 which reads
thus-
“44. Action for
contempt is divisible into two categories, namely, that initiated suo motu by
the Court and that instituted otherwise than on the Court's own motion. The
mode of initiation in each case would necessarily be different. While in the
case of suo motu proceedings, it is the Court itself which must initiate by
issuing a notice. In other cases initiation can only be by a party filing an
application. In our opinion, therefore, the proper construction to be placed on
Section 20 must be that action must be initiated, either by filing of an
application or by the Court issuing notice suo motu, within a period of one
year from the date on which the contempt is alleged to have been committed.
45. It was submitted on
behalf of the Appellant that even if the provisions of Section 20 do not bar the High
Court from taking action if proceedings are initiated by the filing of an
application within a period of one year of the contempt having been committed,
in the present case the period of limitation must be regarded as having expired
long before the filing of the application by the Custodian and, therefore, no
action on such an application could be taken by the Court.”
In the said cited decisions
the observations made in paragraphs 14 and 15 of a previous decision of the
Supreme Court in Om Prakash Jaiswal Vs. D.K. Mittal and Anr. reported in
(2000)3 SCC 171 have been relied thus-
“14. In order to appreciate the exact
connotation of the expression `initiate any proceedings for contempt' we may
notice several situations or stages which may arise before the Court dealing
with contempt proceedings. These are : (i) (a) a private party may file or
present an application or petition for initiating any proceedings for civil
contempt; or (b) the Court may receive a motion or reference from the Advocate
General or with his consent in writing from any other person or a specified Law
Officer or a Court subordinate to High Court; (ii)(a) the Court may in routine
issue notice to the person sought to be proceeded against; or (b) the Court may
issue notice to the respondent calling upon him to show cause why the
proceedings for contempt be not initiated; (iii) the Court may issue notice to
the person sought to be proceeded against calling upon him to show cause why he
be not punished for contempt.
15. In the cases
contemplated by (i) or (ii) above, it cannot be said that any proceedings for
contempt have been initiated. Filing of an application or petition for
initiating proceedings for contempt or a mere receipt of such reference by the
Court does not amount to initiation of the proceedings by Court. On receiving
any such document it is usual with the Courts to commence some proceedings by
employing an expression such as `admit', `rule', `issue notice' or `issue
notice to show cause why proceedings for contempt be not initiated'. In all
such cases the notice is issued either in routine or because the Court has not
yet felt satisfied that a case for initiating any proceedings for contempt has
been made out and therefore the Court calls upon the opposite party to admit or
deny the allegations made or to collect more facts so as to satisfy itself if a
case for initiating the proceedings for contempt was made out. Such a notice is
certainly anterior to initiation. The tenor of the notice is itself suggestive
of the fact that in spite of having applied its mind to the allegations and the
material placed before it the Court was not satisfied of the need for
initiating proceedings for contempt; it was still desirous of ascertaining
facts or collecting further material whereon to formulate such opinion. It is
only when the Court has formed an opinion that a prima facie case for
initiating proceedings for contempt is made out and that the respondents or the
alleged contemners should be called upon to show cause why they should not be
punished then the Court can be said to have initiated proceedings for contempt.
It is the result of a conscious application of the mind of the Court to the
facts and the material before it. Such initiation of proceedings for contempt
based on application of mind by the Court to the facts of the case and the
material before it must take place within a period of one year from the date on
which the contempt is alleged to have been committed failing which the
jurisdiction to initiate any proceedings for contempt is lost. The heading of Section 20 is `limitation for
actions for contempt'. Strictly speaking, this section does not provide
limitation in the sense in which the term is understood in the Limitation Act. Section 5 of the Limitation Act
also does not, therefore, apply. Section 20 strikes at the jurisdiction of the Court to initiate any proceedings
for contempt.”
It is submitted that the High Court has it’s discretionary power
in view of the above decision even to invoke Section 10 of the Contempt of Courts
Act for imposition of punishment on the contemnors for wilful and deliberate
violation of order of injunction granted by the Subordinate Court despite the
alternative remedy available to the petitioner under Rule 2A of Order 39 of the
Code of Civil Procedure and to impose punishment on the contemnor.
In Pallav Sheth (Supra) the Hon’ble Supreme
Court in sets of appeals by special leave against the judgment of the Special
Court constituted under the Special Court (Trial of Offences Relating to
Transactions in Securities) Act, 1992 wherein the Appellant was held to have
committed civil contempt as defined under Section 2(b) of the Contempt of
Courts Act, 1971 and was sentenced to undergo simple imprisonment for a period
of one month and a fine of Rs.2,000/-.
It was held that the action taken by the special
Court to punish the appellant for the contempt was valid as the action for
contempt was not barred by Section 20 of the contempt of Courts Act.
Accordingly, the aforesaid appeals were dismissed affirming the judgment of the
Special Court.
In Om Prakash Jaiswal (supra) the question for
consideration was whether there is a bar created by Section 20 of the contempt
of Courts Act in case where the appellant who was sought to be dispossessed by
the Nagar Mahapalika Allahabad, and the Allahabad Development Authority by demolishing
and removing certain construction existing over a piece of land.
Being aggrieved the appellant filed a writ with
direction upon the respondents not to dispossess or interfere with the
possession of the appellant before the High Court of Allahabad. The respondent
in the said case had given an undertaking before the Court not to disturb and
demolish the construction made by the appellant till disposal of the writ but
the respondents had demolish the appellant construction. So the appellant
sought for initiation of proceeding under Section 12 of the Said Act wherein
show cause notice was issued for the defiance of the order passed by the writ
Court. It follows from the said facts of case that the fact in the present case
is not apposite so as to apply in the instant case although this Court issued
notice to the respondent contemnor with a copy of the application and in
response to the notice the contemnor having entered appearance has raised
objection to issuance of Rule on contention that in the facts of the case there
is no contempt of the Court’s order in utter disregard. It has been held that
an informant does not have right of filing an appeal under Section 19 of the
Act against an order refusing to initiate the contempt proceedings or disposing
of the application or petition filed for initiating such proceedings.
In the cited case the Hon’ble Apex Court made the
observation in paragraphs 14 and 15 as reproduced hereinabove and restored the
case to the file of the High Court to proceed in accordance with law.
Per contra: Mr. Dutta for the contemnor
had relied on decision in case of Rudraiah Vs State reported in 1982
Karnataka 182 to the observation in paragraphs 5 and 6 which are reproduced for
useful consideration-
“5. In cases of
disobedience or breach of injunction order issued temporarily during the
pendency of a suit, either under Rule 1 or 2 of Order 39, C. P. C. action is contemplated
by the very court which issues the injunction order under Rule 2A of Order 39,
C. P. C. It contemplates the forfeiture of property as also putting of the
person who commits breach into civil prison for a period not exceeding three
months. The provision there under is obviously based on the principle of
contempt of Court. That being so, the general provisions made under the Contempt of Courts Act cannot be invoked by
the decree holder, for forcing the party to obey the injunction order. It is a
well settled principle of law that when there is special law and general law,
the provisions of the special law prevail over the general law and when special
procedure and special provision are contained in the C. P. C. itself under
Order 39 Rule 2A for taking action for the disobedience of an order of
injunction, the general law of contempt of Court cannot be invoked. If such a
course encouraged holding that it amounts to contempt of court, when an order
of subordinate court is not obeyed, it is sure to throw open a floodgate of
litigation under contempt jurisdiction. Every decree-holder can rush to this
court stating that the decree passed by a subordinate court is not obeyed. That
is not the purpose of Contempt of Courts Act.
6. The Supreme Court of
India in the case Perspective
Publications (Pvt.) Ltd. v. State of Maharashtrahas observed at page 230, inter alia thus: -
"The summary
jurisdiction by way of contempt must be exercised with great care and caution
and only when its exercise is necessary for the proper administration of law
and justice". (Per Grover,) Contempt of court is essentially a matter
which concerns the administration of justice and the dignity and authority of
judicial tribunals. It is not a right of a party to be invoked for the redress
of his grievances. It is not also a mode by which the rights of a party,
adjudicated upon by a Tribunal can be enforced against another party. Moreover,
if the matter, as in the present case, requires a detailed enquiry, it must be
left to the court which passed the order and which presumably is fully
acquainted with the subject matter of its own order. When the matter relates to
mere infringement of an order, as between parties, it is clearly inexpedient to
invoke and exercise contempt jurisdiction as a mode of executing the order,
merely because other remedies may take time or are more circumlocutory in
character. Contempt jurisdiction should be reserved for what essentially brings
the administration of justice into contempt or unduly weakens it.”
Reference is also made to a
decision in Samir Kumar Sarkar Vs.Maharaj Singh reported in 1982(2) CHN
213 wherein
it has been held that contempt of Court is essentially a matter which concerns the
administration of justice , dignity and authority of judicial tribunals. It is
not a right of a party to be invoked for the redress of his grievances. It is
not also a mode by which the rights of a party adjudicated upon by a tribunal
can be enforced against another party.
When the matter relates to mere
infringement of an order as between the rival parties it is clearly inexpedient
to invoke and exercise contempt jurisdiction as a mode of executing the order.
The proper and the correct mode is to take recourse to Order 39 Rule 2A of the
C.P Code Contempt jurisdiction should not be invoked in such cases which is
primarily reserved for what essentially brings the administration of justice
into contempt of unduly weaken it.
In the present case the petitioner has alleged
violation of the order of temporary injunction dated April 2, 2013 passed by
Civil Judge (Senior Division) in T.S. 852 of 2011 whereby and where under the
defendants were restrained from transferring the suit property to any third
party and further restrained from changing the nature and character of the suit
property till the disposal of the suit and the petitioner admittedly has filed
a Miscellaneous case under Order 39 Rule 2A of CPC alleging violation of said
order. It is reflected from the contention made in this instant petition that
the respondent contemnor after having purchased the suit property from said
Maya Dhara since deceased for valuable consideration had elevated the property
by construction of several floors. It is also admitted by the petitioner that
he had received a cheque of Rs. 1,50,000/- from said Maya Dhara since deceased
towards refund of earnest money out of total sum of Rs. 3,00,000/- but the same
was dishonoured on presentation to his banker. It would also go to show that
the suit filed by the petitioner in substance is a suit for a specific
performance of contract on certain terms embodied in the agreement itself.
Under the law the plaintiff in a suit for performance has a weak right if the
conditions of agreement are not fulfilled. The right to enforce the agreement
by the petitioner is the subject matter of adjudication by the Trial Court in
accordance with the evidence to be adduced by the parties to the suit in its
discretion with an alternative remedy for refund of the earnest money together with
interest thereupon. Respondent contemnor has pointed out that agreements with
the buyers of the flats were entered by execution on various dates and the buyers
were put into possession prior to the order passed by the learned Civil Judge
(Senior Division). This aspect of the case can only be decided at the Trial in connection
with Miscellaneous case under Order 39 Rule 2A of the Civil Procedure Code.
Agreeing with the observations made in Rudraiah and Samir
Kumar Sarkar (supra) I am of the considered view that where an injunction under
Order 39 Rule 1 and 2 of the Civil Procedure Code is granted by a subordinate
Court, High Court cannot punish the contemnor. It is considered a civil contempt
punishable under Order 39 Rule 2A of the Code. It is outside the purview of Section
2(b) of the contempt of Courts Act 1971 since the scope of contempt of Court as
contemplated under Order 39 Rule 2A (1) of Civil Procedure Code is different
and is narrower than the scope of civil contempt within the meaning of Section
2(b) of the said Act 1971. The provision under Order 39 Rule 2A of CPC provides
an elaborate and exhaustive provision for dealing with breach of injunction
order which is a serious matter since the Civil Court is empowered to order to
take away even the liberty of an individual by detention of the person in a
civil prison who has violated the order. So the power is penal in nature and
the burden is heavy on the person who alleges disobedience to prove the
ingredients of the offence beyond reasonable doubt since there has to be a
clear proof that the order so ordered was clear, distinct, unambiguous and with
full knowledge of the contemnor.
In the context of the above discussion the CPAN
No. 818 of 2018 is hereby dismissed, however without any order as to costs.
Let a copy of the Judgment be sent to the learned
Court below with direction to decide the Miscellaneous Case under Order 39 Rule
2A CPC as expeditiously as possible preferably within three months.
Urgent certified photocopy of this Judgment, is
applied for, be supplied to the parties upon compliance with all requisite
formalities.
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