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R. Essa Vs. N.M. Jamal and Sons, Represented by Nazir Noor Ali Jamal - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtChennai High Court
Decided On
Reported in(1975)2MLJ218
AppellantR. Essa
RespondentN.M. Jamal and Sons, Represented by Nazir Noor Ali Jamal
Cases ReferredRamalingam v. Mahalinga Nadar
Excerpt:
- .....in s.a. no. 431 of 1972, was granted three months time to vacate and deliver possession of the suit property. the said order was passed on 2nd may, 1974. the respondent ought to have delivered possession of the property to the petitioner on or before 2nd august, 1974. but the respondent did not deliver possession of the property. instead, the respondent filed a suit o.s. no. 5654 of 1974 on the file of the city civil court (vi assistant) madras, praying for a declaration that he is entitled to the property under the seventh defendant in the suit, sri sundareswara devasthanam represented by its executive officer and for a consequential relief of injunction restraining the petitioner from executing the decree in o.s. no. 3809 of 1966. the respondent herein filed also an application for.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. This is an application filed by the respondent in S.A. No. 431 of 1972 for punishing the appellant therein for contempt of Court. It is alleged in the affidavit filed in support of the application that the respondent in the contempt application has committed contempt by disobeying the decree in S.A. No. 431 of 1972. The respondent, who is the appellant in S.A. No. 431 of 1972, was granted three months time to vacate and deliver possession of the suit property. The said order was passed on 2nd May, 1974. The respondent ought to have delivered possession of the property to the petitioner on or before 2nd August, 1974. But the respondent did not deliver possession of the property. Instead, the respondent filed a suit O.S. No. 5654 of 1974 on the file of the City Civil Court (VI Assistant) Madras, praying for a declaration that he is entitled to the property under the seventh defendant in the suit, Sri Sundareswara Devasthanam represented by its Executive Officer and for a consequential relief of injunction restraining the petitioner from executing the decree in O.S. No. 3809 of 1966. The respondent herein filed also an application for interim injunction in LA. No. 15116 of 1974 in that suit for a temporary injunction, and has obtained an interim relief also According to the petitioner, the respondent is bound to deliver possession of the suit property as per the direction of this Court contained in the judgment in S.A. No. 431 of 1972. The claim of the respondent as a tenant under the Devasthanam had been negatived by the Courts below and this Court also observed in S.A. No. 431 of 1972 that Exhibit A-11 shows that the respondent is not a tenant under the Devasthanam. Hence, according to the petitioner, the respondent is estopped from setting up the same case once over. To substantiate the case of contempt, the petitioner has alleged that the respondent has deliberately flouted the directions of this Court by not delivering the property to the petitioner on or before 2nd August, 1974 and also by approaching the City Civil Court for an injunction restraining the petitioner from executing the decree in O.S. No. 3809 of 1966, out of which S.A. No. 431 of 1972 arose. This attitude and act of the respondent, according to the petitioner amounts to clear contempt.

2. The respondent filed a counter stating that there is neither a prohibitory nor a mandatory order of this Court to entitle the petitioner to move for contempt. When a decree is passed by a Court for possession and time is granted to the judgment debtor, its effect is only to stay the execution of the decree for the period covered by the order of the Court. Further in O.S. No. 3809 of 1966 the landlord of the premises in question was not a party. The respondent further alleged that he entered into a direct tenancy with the landlord, viz., Sri Sundareswaraj Devasthanam represented by its Executive Officer in respect of the demised premises and in view of that tenancy there was nothing left for the petitioner to enforce as against the respondent in relation to the demised premises. O.S. No. 5654 of 1974 on the file of the City Civil Court, Madras has been filed by the respondent against the petitioner, defendants 1 to 5 in the prior suit O.S. No. 3809 of 1966 and the landlord, for a declaration that the respondent is entitled to continue in possession of the demised premises, viz., No. 315/318, N.S.C. Bose Road, Madras-1, as the tenant of the Devasthanam and for a consequent injunction restraining the petitioner from executing the decree in O.S. No. 3809 of 1966 against the respondent, as the latter had be come ineffective and also for a declaration that the respondent is entitled to the benefit of the Tamil Nadu Buildings (Lease and Rent Control) Act.

In the said suit, the respondent had also filed I.A. No. 15116 of 1974 and an interim injunction had also been granted in favour of the respondent. The respondent thus states that in view of the change of circumstances enabling him to claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control') Act, and also in view of the fact that his present claim and right are outside the scope of the previous proceedings, he is entitled to continue in possession of the said demised premises and that he has not committed any contempt of the order of this Court, nor has he disobeyed any orders of this Court.

3. Before dealing with the question of 'contempt, it is better to state, in brief, the facts which culminated in S.A. No. 431 of 1072. The sixth defendant in O.S. No. 3809 of 1966 was the appellant in S.A. No. 431 of 1972. He is the respondent in this contempt application also. He contended in O.S. No. 3509 of 1966, inter alia, that he was in Possession of the suit premises, that the leasehold right belonged to him, that he has taken receipts for rent paid to the landlord and that as such the plaintiff in the suit could not claim any relief against him. The trial Court decreed the suit as prayed for except for the relief claimed relating to payment of Rs. 591 per month from the date of suit till the dissolution of partnership. On appeal before the Second Additional City Civil Judge by the respondent and the seventh-defendant in the suit, the lower appellate Court dismissed the suit as against the seventh defendant but confirmed the decree and judgment of the trial Court in so far as the respondent was concerned. Aggrieved by the Judgment and decree of the lower appellate Court, the respondent preferred S.A. No. 431 of 1972. This Court, in the said second anneal. observed that both the Court's below had elaborately discussed the evidence on record and had concurrently come to the conclusion that there was no independent tenancy created between the respondent herein and the Devasthauam and that the fact that the respondent had not replied to the plaintiff's notice Exhibit A-11 showed that he was not a tenant directly under the Devasthanam. With these observations, this Court held that the plaintiff had to succeed in getting possession of the suit property and ultimately confirmed the decree of the Court below as regards possession in favour of the petitioner. Three months' time to vacate and deliver possession was granted by this Court. This was only at the request made by the appellant in S.A. No. 431 of 1972.

4. Thus it is clearly seen from the facts narrated above, that the contention of the respondent that the has become directly a tenant under he Devasthanam, which he has put forth on the previous occasions, had been negatived and the prayer for possession made by the petitioner was granted even as against the respondent. The respondent, taking advantage of the fact that the Devasthanam, the landlord, was rot a party to the piror suit O.S. No. 3809 of 1966 has filed O.S. No. 5654 of 1974 in the City Civil Court for a declaration that he is entitled to be in possession of the suit property as tenant under Sri Sundareswarar Devasthanam and for a consequential relief of injunction restraining the petitioner from executing the decree in O.S. No. 3809 of 1966. There is also 3 praver therein for a declaration that the respondent, in any event, is entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act and without seeking an order of eviction under the provisions of the said Act, the petitioner cannot evict the respondent.

5. In O.S. No. 5654 of 1974, the respondent, inter alia, alleged that subsequent to the surrendering of tenancy rights to the partnership firm known as 'Jaflros' consisting of defendants 1 to 6 to the actior, and after that partnership firm took over the premises and the business, there was no subsisting tenancy of the suit premises in favour of the petitioner in his individual capacity, that the partnership firm having become a tenant of the shop subsequently in 1968 assigned all the tenancy rights to the respondent, that the Devasthanam, the seventh defendant in the action, has recognised the respondent as its tenant, that the respondent has ever since been paying the rent to the Davasthanam directly and occupying the premises. carrying on his own business 'N.M. Jamal and Sons', now knrwn as 'Hilton Footware', that the Devasthanam (seventh defendant) was not a party to O.S. No. 3809 of 1966 and that since the Devasthanam was not a party to O.S. No. 3809 of 1966, the tenancy which came into effect during the pendency of the suit O.S. No. 3809 of 1966, the same will not be hit by any decision rendered in O.S. No. 3809 of 1966. It is further alleged by the respondent in that suit that he is enjoying the building in his own individual right as a tenant under the Devasthanam and that the decree for possession obtained by the petitioner has become inexecutable. On the above allegations, he prayed in O.S. No. 5654 of 1974 for the reliefs as already set forth by me.

6. An interim injunction has also been obtained from the VI Assistant Judge, City Civil Court, by the respondent restraining the petitioner from executing the decree in his favour.

7. Thiru Sivamani, learned Counsel appearing for the petitioner while narrating the above facts, submitted that there has been a wilful disobedience of the order of this Court in S. A. No. 431 of 1972 on the part of the respondent and as such he has committed contempt.

8. Thiru Parasaran, learned Counsel appearing for the respondent, submitted that the respondent, even now, bona fide believes that his right of tenancy got from the Devasthanam is independent of the proceedings culminating in S.A. No. 431 of 1972 and as such it cannot be, said that there is wilful disobedience on the part of the respondent. The learned Counsel further submitted that the petitioner cannot have the right to file a contempt application while he has the remedy by was of execution of the decree in O.S. No. 3809 of 1966. He further submitted that the suit O.S. No. 5654 of 1974 is pending before the City Civil Court and an interim injunction has also been obtained and as such the petitioner can well contest that suit and the injunction application on merits on the facts which he alleges now and have his remedy in that suit itself.

9. Thiru Sivamani, learned Counsel for the petitioner, replied that the allegation in the plaint in O.S. No. 5654 of 1974 as if the respondent has become a tenant under the Devasthanam had not been whispered in the proceedings, in O.S. No. 3809 of 1966 either before the Courts below or in S.A. No. 431 of 1972. There is a clear finding by the Courts below and the High Court in S.A. No. 431 of 1972 that the respondent was not a tenant directly under the Devasthanam, that Exhibits A-5 and A-18 in those proceedings strengthened the case of the petitioner as to his right to be in possession of the property and that the petitioner is entitled to have possession thereof. As such, according to the learned Counsel, the respondent had the clear and wilful intention of disobeying the orders of this Court when he approached the City Civil Court and also by alleging in his suit certain facts.

10. It is clear from the facts that the finding is the respondent is not a tenant directly under the Devasthanam. This finding was given as late as 2nd May, 1974 in S.A. No. 431 of 1972, to which the respondent was a party. He could have substantiated his claim of independent tenancy under the Devasthanam either by adducing additional evidence or by bringing the fact of direct tenancy agreement between the Devasthanam and himself to the notice of either the lower appellate Court or to the High Court. From the allegations made in the plaint in O.S. No. 5654 of 1974, the respondent traces his tenancy under the Devasthanam and recognition of the tenancy by the Devasthanam from 1968 onwards. O.S. No. 3899 of 1966 out of which S.A. No. 431 of 1972 arose, was disposed of only on 16th January, 1969. If so, even during the pendency of that suit where the petitioner claimed possession of the property, the respondent seems to have got the tenancy from the Devasthanam. It is surprising as to what prevented him from substantiating his tenancy before the Courts below. Having kept quiet all these days, and having got adverse orders throughout up till the stage of the second appeal, as regards possession of the property, the respondent has thought fit to come forward with O.S. No. 5654 of 1974 with the allegation that the Devasthanam was not a party to the previous proceedings and that he has become a. tenant under the Devasthanam.

11. Contempt proceedings are very delicate matters. Contempt matters being in the nature of quasi-criminal proceedings, the benefit of doubt definitely accrues to the contemner. The respondent has taken shelter by instituting civil action on the allegation as if he is a tenant under the Devasthanam. In support of his contention that the respondent should be punished for contempt, Thiru Sivamani cited the decision in Ali Mohamed Adamalli v. Emperor . That was a case which arose out of a direction made by the Chief Judge, Court of Small Causes, Bombay, under Section 6-A of the Musslaman Wakf (Bombay Amendment) Act, 1935, directing accounts to be furnished within a limited time. The party disobeyed the said direction. A Bench of the Bombay High Court in proceedings taken out against the party for contempt convicted the party by directing him to pay a fine. The same was confirmed by the Privy Council. Section 6-A (1) of the Mussalman Wakf Act as amended by the Mussalman Wakf (Bombay Amendment) Art, 1935, states:

Notwithstanding anything contained in Section 3 it shall be competent to the Court, on failure of a mutawalli to furnish a statement as required under the said section, to require the mutawaili to furnish, within such time as the Court shall fix, a statement containing all or any of the particulars referred to in the said section....

As per the said section, the Chief Judge Court of Small Causes, Bombay had directed the mutawalli to file the accounts. Beaumont, C.J., in the Bench Judgment of the Bombay High Court said:

The (party) has refused and still refuses, to obey the order. His contention is that the order was wrong, because the property in respect of which it was made is not wakf property. But if that was his contention, he could have filed a suit in the High Court for a declaration to that effect, and applied for a stay of the order of the Small Cause Court. He did not do that and the order has been in force, and has been disobeyed for over two years. He also says that he understood from the direction to prosecute in default of compliance with the order, that that was the only penalty which he would incur. We have, however, offered him further time in which to comply with the order, but he says, through his counsel, quite definitely, that he does not intend to comply with the order.

and committed the party for contempt. As far as the present case is concerned, there is no such direction nor any direction by virtue of any provision of any enactment. The respondent has also filed a suit and has obtained an interim injunction. If there were to be any direction, the matter would have come directly under Section 2 (6) of the Contempt of Courts Act, 1971, which states:

Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court.

In the present case, except giving time to the respondent to vacate and deliver possession, there is no direction as such given to him- Hence I am of the view that the facts of the Privy Council case are completely different from those in the present case and as such the decision cannot given the present case.

12. Thiru Sivamani also cited the decision in Ponnuswami Iyer v. Ganapathi Iyer : (1923)45MLJ742 , wherein it is pointed out that the Magistrate was bound to obey the order of the High Court notwithstanding that there was no formal communication thereof to him from the High Court. On the facts of that case, it was held that the Magistrate was not guilty of contempt because it was not made out that in acting as he did he wilfully disobeyed the order of the High Court. I do not think that the decision can apply to the case on hand.

13. In re B. Yegnanarayaniah : (1974)1MLJ155 states that where a Court directs a party to produce a particular deed, but it is not proved that the document is in the custody of the party so directed, his failure to produce it cannot be regarded as wilful and he cannot be convicted of contempt. This decision has no relevance to the case on hand.

14. The decisions in Dwijendra Krishna v. Surendra Nath : AIR1927Cal548 , Ramalingam v. Mahalinga Nadar : AIR1966Mad21 , and Abdul Razack v. Azizurtnissa Begum : AIR1970Mad14 , can be easily distinguished. As a matter of fact, in Ramalingam v. Mahalinga Nadar : AIR1966Mad21 , it has been clearly held that it is inexpedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character.

15. The case-law noticed above, generally deals with 'contempt' in given cases. In this case, we are concerned with the question whether there is any wilful disobedience on the part of the respondent in respect of the judgment, decree or direction given by this Court in the second appeal. The decree in the second appeal, is only executable, though three months' time has been given for vacating the property. There is no specific direction by the Court or undertaking given by the respondent. No doubt, the respondent has filed a suit and obtained an interim injunction alleging that he is a tenant under the Devasthanam. The defendant has thus resorted to a civil Court under a belief, which, he says, is bona fide, that he has obtained a right from the Devasthanam to be a tenant direct. Since the civil Court is seized of the case, it will be a very delicate matter to express any opinion as to the correctness of the respondent's act in filing the suit. The petitioner has ample remedy to put forth all the facts in the suit filed by the respondent to establish his case. In view of the fact that the respondent has approached the civil Court to establish his right as if he is a direct tenant under the Devasthanam, it cannot be construed that he has wilfully disobeyed the judgment and decree of this Court in S.A. No. 431 of 1972 and thus rendered himself to be punished for contempt. Some more strong proof is needed. There is a doubt as to whether the respondent really intended to disobey the judgment and decree of this Court or whether he has sought to establish his right of tenancy directly under the Devasthanam. In proceedings of contempt, the benefit of doubt has to given only to the respondent. In these circumstances, I am of the view that the petitioner has not established beyond all reasonable doubt the contempt alleged by him against the respondent.

16. Giving the benefit of doubt to the respondent, I dismiss the contempt application and make no order as to costs.


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