IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR. JUSTICE C.T.SELVAM Letters Patent Appeal No.1 of 2009 M/s. Gatraj Jain & Sons HUF rep. by its Kartha Gatraj Jain No.97, Narayana Mudali Street Chennai 600 079 .. Appellant vs. 1. Janakiraman 2. G P Savithiri .. Respondents Appeal under Clause 15 of the Letters Patent, against the order dated 15.10.2008 made in Contempt Petition No. 711 of 2007 on the file of this Court. For Appellant : Mr. R Thiagarajan, Senior Counsel for Mr.K.S.Raman For Respondents : Mr.V.Shanmugam for R1 No Appearance for R2. ---
Judgment
(Judgment of the Court was delivered by PRABHA SRIDEVAN,J.)
The first respondent prayed for injunction against the defendants pending suit and the second respondent/D3 in the suit namely Savithri gave an undertaking that she will not alienate the suit property. Thereafter, the first respondent, entered into an agreement with the appellant’s daughter which included the suit property promising to vacate the property, withdraw all cases, execute necessary conveyances and agreements. He also received Rs.20lakhs, as part of the consideration, which is Rs.60,30,000/-. Thereafter, the second respondent sold the property to the appellant in spite of the undertaking. With the Rs.20 lakhs still in his pocket, the first respondent filed the contempt petition alleging that the undertaking was violated when the sale deed was executed. There is no mention of this agreement in the contempt petition nor the fact that he was paid Rs.20 lakhs. The second respondent also is a party to the contempt petition and not her purchaser i.e., the appellant. An order was passed punishing the second respondent herein for contempt for violating the undertaking and setting aside the sale. The purchaser from the contemnor has filed this appeal. The first respondent, who filed the contempt petition, now cries “Wolf”, but we are not impressed. Equity is as equity does.
2. The facts have to be stated in brief:
The suit property belonged to one Mrs.Subbarathnammal, who purchased it in a court auction. On her death, it devolved on her son Subbukrishna Chetty. Subbukrishna Chetty executed a Will, which has been probated by order dated 10.04.2001. The beneficiary under the Will was his daughter Kanagavalli. He had two sons Janakiraman and Parthasarathy. Janakiraman attacked the grant of probate. But, even the Supreme Court dismissed his case on 17.08.2001.
3. Then the said Kanagavalli sold a portion of the property, which she was enjoying as a beneficiary under the Will to her brother’s wife Savithri. Janakiraman filed a suit in C.S.No.965 of 2001 for partition against his brother and sister in September 2002. Kanagavalli sold another portion of the property to the appellant herein. The extent of the property sold was 872 Sq.ft. Undeterred, Janakiraman there upon filed C.S.No.784 of 2002, a pre-emption suit under Section 22 of the Hindu Succession Act. Savithri then sold 528 sq.ft to one Shanmugham, who in turn sold the said property to the appellant herein on 09.08.2006. Therefore, now the appellant was in possession of 1400 sq.ft out of 2852 sq.ft of the properties, which originally belonged to Kanagavalli. There remained 1452 sq.ft. In C.S.No.784 of 2002, an injunction application was filed, in which the third defendant-Savithri gave an undertaking not to alienate the property pending disposal of the suit. This undertaking is dated 28.04.2003. On 09.08.2006, the property measuring an extent of 1452 sq.ft was sold to the appellant herein and therefore, the contempt petition was filed.
4. The learned Single Judge on a consideration of the facts and circumstances of the case, allowed the contempt petition, awarded punishment of a fine of Rs.1000/- with a default clause and the sale deed dated 09.08.2006 executed by the contemnor in favour of the appellant herein was declared null and void and ineffective.
5. The preliminary objection raised is that the appellant herein is not a party to the contempt petition and the contempt petition is only between the Court and the contemnor and once punishment is imposed, no one can challenge the same except the contemnor himself. Several decisions were placed before us by the learned Senior Counsel appearing for the appellant and the learned counsel appearing for the first respondent. The second respondent, who is the contemnor, though served, has not entered appearance either in person or through counsel.
6. On the side of the first respondent herein, who objected to the maintainability of the appeal, the following decisions were cited:
i.1988 Law Weekly 285 (FB) (Century Flour Mills Ltd. v. Suppiah);
ii. 1988 (3) SCC 26 (D.N.Taneja v. Bhajan Lal);
iii. 1994 (2) SCC 266 (Satyabrata Biswas v. Kalyan Kumar Kisku);
iv. 1996 (4) SCC 622 (D.D.A. v. Skipper Construction Co. (P) Ltd.;
v. 1996 (4) SCC 411 (State of Maharashtra v. Mahboob S. Allibhoy);
vi. 2005 (10) SCC 207 (B.K.Savithri v. B.V.S.Anand)
vii.2007 (11) SCC 374 (All Bengal Excise Licensees’ Assn. v. Raghabendra Singh)
viii. 2009 (4) SCC 213 (C. Elumalai v. A.G.L.Irudayaraj).
The crux of the decisions cited on behalf of the first respondent herein is that an appeal is a creature of statute and therefore, the appeal can be filed only by a person to whom the right of appeal is given. A third party to the contempt petition, cannot prevent the Court from restoring the status quo if it is found that there was a wilful disobedience to the order of Court.
7. To protect the majesty of the Court, the Court can always draw their inherent power to do justice. Further, a direction or an interim order passed in a contempt petition may have different consequences. Once the Rule has been made absolute and the contemnor has been punished, then there is only one person who is aggrieved and that is the contemnor and merely because other directions are given, which are inextricably linked with the order punishing the contemnor, that does not give any one else the right to file an appeal.
8. On the side of the appellant, it was submitted that in the recent decision of the Supreme Court in Tamilnad Mercantile Bank Share Holders’ Welfare Association v. S.C.Sekar and Others [(2009) 2 SCC 784], the Supreme Court had held that even an irregular order can be set aside by the same court or by a higher court and an aggrieved person cannot be left without a remedy and access to justice is a human right and in certain situations, it is even a fundamental right. If the High Court decides on the issue and makes a direction relating to the merits of the dispute between the parties, the aggrieved person may even challenge it in an intra-court appeal. This order of the Supreme Court was passed while they declined to interfere with an order passed by the Division Bench of this court. The Division Bench had held that the provisions of appeal under Section 19(1) of the Contempt of Courts Act, cannot be restricted only to a case of punishment imposed by the Court in Contempt proceedings and such a right of appeal can also be extended, where an order adversely affecting the parties are passed and they held that when the interim order passed by this court in contempt petition was incidental to and inextricably connected to the rights of the Board of Directors, even though the parties were third parties to the contempt petition, they could appeal against the order adversely affecting them and the opinion of the Division Bench was, even in case of any order passed adversely affecting any person, certainly he would be entitled to prefer an appeal, as otherwise he would be left with no effective remedy.
9. In Midnapore Peoples’ Co-operative Bank Limited vs. Chunilal Nanda (2006 (5) SCC 399), which was relied on by both the Counsel, the Supreme Court summarised the possession with regard to appeals against orders in contempt proceedings thus:
“I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceedings for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of “jurisdiction to punish for contempt” and therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides on issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).
10. If the situation described in paragraph IV extracted above, is applied to the present case, we find that what the Supreme Court has stated there is that where the direction or decision is incidental to or inextricably connected with the order punishing for contempt, then the appeal under Section 19 of the Act could be against the incidental or inextricably connected directions. Now, once this position is accepted that an appeal can be filed not only against the order of punishment under contempt, but also against directions, which are incidental or inextricably connected to the order punishing for contempt, then the party, who is aggrieved by the incidental or inextricably connected directions, must have the access to complain against or challenge the said incidental or inextricably connected directions.
11. In this context, we find that the Supreme Court in Tashi Delek Gaming Solutions Ltd. v. State of Karnataka [(2006) 1 SCC 442] and Arunima Baruah v. Union of India, [(2007) 6 SCC 120], had observed that the access to justice was not only a human right, but even sometimes it may also be considered to be a fundamental right.
12. There is yet another and very important aspect of the matter that persuades us to entertain this appeal and that is with regard to the conduct of the first respondent, who invoked the contempt jurisdiction of this court. On 30.09.2002, the first respondent herein filed C.S.No.784 of 2002 claiming that he had the right of pre-emption in respect of the ‘B’ schedule property, which is the property in question. Pending the suit, he filed O.A.No.188 of 2003. On 28.04.2003, when the application came up for hearing, the third respondent therein gave an undertaking not to alienate or encumber the said property till the disposal of the suit. This statement was recorded and in view of the said undertaking, the application was closed. Thereafter, on 10.02.2006, the first respondent herein, his wife Govindalakshmi, sons Ramachandran, Ashok Kumar and Ananda Krishnan and daughters Indumathy and Sundari entered into an agreement with the daughter of the appellant one Ms.Pinky. In this agreement, there is a reference to the partition suit in C.S.No.965 of 2001 and the pre-emption suits in C.S.Nos.784 and 822 of 2002 and the agreement had been entered into in view of the fact that the party of the second part namely the daughter of the appellant herein had purchased a major portion of the said property. At this juncture, it must be remembered that the father had by then become the owner of 1400 sq.ft of the property out of a total of 2852 sq.ft. The parties of the first part namely the first respondent and his family members under the agreement offered to alienate their right in the property and vacate and deliver the vacant possession of the portions in their occupation and also to attorn the tenancies in respect of the said two tenants in favour of the party of the second part and they have also agreed to withdraw all their cases in the Court of law and to give up their right claim for share in the said property, in consideration of Rs.60,30,000/- (Rupees Sixty lakhs and thirty thousand only) to be paid by the party of the second part to the parties of the first part and the party of the second part has also accordingly agreed and the parties herein have accordingly entered into this deed of agreement. Thereafter, they agreed to give up all their claim in respect of the property, they agreed to withdraw all pending cases unconditionally and they agreed to execute necessary Deed of Conveyance, Release, Power of Attorney, etc., They received a sum of Rs.20 lakhs on that date and agreed to receive Rs.40,30,000/-, which was payable by the party of the second part, when the parties of the first part withdraw all the Court cases, and vacate and deliver the vacant possession of the portions in their occupation, to the party of the second part and attorn the tenancies in favour of the party of the second part and to execute necessary Deed of Conveyance, Release and Power of Attorney in respect of their right and claim over the schedule mentioned property.
13. It appears that on 30.06.2006 neither did the party of the first part vacate the premises nor did he withdraw the pending cases, and neither did the party of the second part pay this sum of Rs.40,30,000/-. The contempt petition was filed in April 2007. It is a fairly brief affidavit that is filed in support of the contempt petition. Paragraph 2 deals with the property referring to the Will as fabricated in respect of which probate had been granted and referring to the various suits and paragraph 4 refers to the attempts of the defendants to create further encumbrances and paragraph 5 refers to the sale deed dated 09.08.2006, by which the second respondent /contemnor had sold the property to the appellant. A copy of this document is also enclosed in the typed-set of papers, in which while the probate proceedings have been referred to, the various suits which the contemnor was facing, are not mentioned. It appears that since the first respondent had not vacated the premises as per the agreement, a complaint was filed and thereafter the first respondent had returned the said sum of Rs.20 lakhs.
14. In the counter filed by the contemnor, she had stated that she never had any intention to violate the orders of this court and that she was an innocent lady, who had been asked to execute the sale deed only at the instance of the petitioner. It is her categoric statement in paragraph 2 of the counter affidavit that the first respondent himself had entered into an agreement with the appellant herein and the Memorandum of Understanding and agreement were entered into by the first respondent long prior to the sale deed and only to secure the amounts mentioned in the agreement that the first respondent had compelled her to execute the sale deed. In fact, she had stated that the Court should direct the first respondent to produce the Memorandum of Understanding, which would show that it was he, who violated the orders of this Court. To this, a reply has been given, where it is stated that the averments made in the counter are inconsistent and that he had never compelled her to execute the sale deed and that it is she who had not mentioned anything about the proceedings in the sale deed dated 09.08.2006 and that since the first respondent herein knew fully well that he had neither withdrawn the suits nor had vacated the premises even six months after the alleged Memorandum of Understanding, she must know that the alleged agreement even if it is true, that was not acted upon or given effect to. Of course, this reply was given on 21.04.2008, by which date he had been forced to or requested to part with Rs.20 lakhs that he had received. However, we are unable to accept the stand that it is the respondents, who are guilty in suppression of the details regarding the litigation in the sale deed and that by suppressing the details and by executing the sale deed, the contemnor has committed contempt and an act, which is flagrantly violative of the undertaking given to the Court, cannot be allowed to stand. On the contrary, when the first respondent herein moved this Court for punishing the contemnor in contempt petition, it is he who ought to have brought to the notice of this Court that there was a Memorandum of Understanding, but the Memorandum of Understanding was not acted upon. In fact, we are not accepting that statement made in the reply affidavit, which refers to the Memorandum of Understanding as alleged or so called Memorandum of Understanding. He had received Rs.20 lakhs under the Memorandum of Understanding, but he did not act according to his promise for the reasons best known to him. He went back on it and thereafter perhaps voluntarily or involuntarily he had returned the sum of Rs.20 lakhs that he had received. Even on the basis of the Memorandum of Understanding, the contemnor had pleaded that she was given to understand that there would be no dispute and that in fact the first respondent would withdraw his cases on receipt of the consideration spelt out in the Memorandum of Understanding. If we accept this, then there is no wilful breach and then an action in contempt is not made out. The contempt jurisdiction is a quasi criminal one and if there is a possibility of two views, then we must take that view, which points to the innocence of the alleged contemnor and not the one, which indicts her. Therefore the counter filed by the contemnor shows that she was persuaded to think that there would be no opposition from the first respondent since he himself had entered into a Memorandum of Understanding agreeing to vacate the premises and agreeing to withdraw all cases on receipt of Rs.40,30,000/-. We are not surprised that this old lady thought that there would be no contempt, if she executed a sale deed in favour of the party with whom her brother-in-law had entered into a memorandum of understanding or an agreement.
15. In the judgment of the Supreme Court in Tamilnad Mercantile Bank Share Holders’ Welfare Association Case, the Supreme Court made a mention of equitable consideration and the person invoking the contempt jurisdiction should approach the Court with clean hands. Clearly, the first respondent had suppressed a very material fact from this Court when he filed a petition for contempt. The fact that he came up with the truth half heartedly in the reply does not in any way absolve his guilt of suppression in the initial instant. This fact that there was an agreement between him and the daughter of the appellant was placed before the learned Single Judge, but yet the sale deed was declared to be null and void. Even if contrary to the undertaking, the sale deed had been executed or that the permission of the court ought to have been obtained before the sale deed was executed, the very fact that the first respondent had quantified the relief that he had asked for in the various suits at Rs.60,30,000/- ought to have been taken note of. Payment of that amount to the first respondent would have been the proper relief. On the contrary, the sale deed was declared to be null and void. We also have to look at the conduct of the appellant herein. In view of the averments of the counter filed by the contemnor, we find that the reason given for executing the sale deed is plausible. If so, she is not guilty of contempt. The contempt petition must be dismissed. Be we are unable to stop with that. The appellant had filed the above appeal claiming that he did not know about the proceedings. We are not convinced with that either. We must, to use the words of the Full Bench of this court in Century Flour Mills Ltd. v. Suppiah (1988 Law Weekly 285) “legitimately invoke our inherent powers”. In that case, of course, the boot was on the other foot and when the first respondent claimed that the conduct of the appellant showed culpable negligence on their part and that they should be also regarded as wrongdoers and should be prevented from deriving benefit out of their own wrong conduct. The Full bench observed that this argument is adding insult to injury.
16. In this case, we are of the opinion that the first respondent could hardly claim that because of the appellant’s conduct, they should be regarded as wrongdoers and should be prevented from deriving benefit out of their own wrong, since he had the sum of Rs.20 lakhs in his pocket when he filed the contempt petition and yet thought fit not to mention it. This is a very crucial fact. The fact that he returned Rs.20 lakhs at a later point of time or admitted it half heartedly in the reply does not improve his position. Yet we would like to balance the equities in this case. The learned Senior Counsel appearing for the appellant submitted that the the appellant is willing to deposit the sum of Rs.60,30,000/-, which is the sum that was agreed to be paid to the first respondent under the Memorandum of Understanding. This shall be done within 7 days. It is open to the first respondent to file an application for withdrawing the same subject to fulfilling his obligation under Memorandum of Understanding. But, if this amount is not withdrawn within four weeks, the Registrar General shall deposit the said sum to the credit of Contempt Petition No.711 of 2007 in the High Court Indian Bank Extension Counter in a fixed deposit for a period of one year initially and thereafter to be kept renewed.
17. The contempt alleged in this case is breach of an undertaking given in a suit. The contempt petitioner had, on receipt of consideration and under an agreement, offered to withdraw all suits. It is subsequent to that agreement, that a sale deed was executed allegedly in the belief that the contempt petitioner himself was withdrawing all suits. In the affidavit filed in the contempt petition, neither the agreement nor the receipt of money was mentioned. Can this contempt petitioner raise the issue of maintainability of appeal? We think not.
18. This appeal is allowed as above. No costs. Consequently, M.P.No.1 of 2009 is closed.
19. Post this matter on 28.07.2009 for reporting compliance.
Index : yes (P.S.D.J.) (C.T.S.J.) Internet: yes 21.07.2009. Note : Issue order copy on 24.07.2009. ATR/GPA PRABHA SRIDEVAN, J, and C.T.SELVAM,J. ATR L.P.A.No.1 of 2009 21.07.2009