@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdash1. Contempt petition, is filed alleging disobedience of the order, dated 12.6.12 made in I.A. No. 34 of 2012 in O.S. No. 5 of 2012 on the file of Principal District Court, Srivilliputhur.
2. Case of the petitioner is that he married Vijayalakshmi, the 1st respondent, on 11.06.1992, as per the Hindu rites and customs. Out of the wedlock, he has two children namely, Arulmurugan and Lakshmi Abirami. They were born on 27.01.1994 and 08.07.1995, respectively.
3. The petitioner owns several properties, through his father. There is a registered partition, dated 27.06.2001, between himself and other brothers. He was allotted five items of properties.
4. According to him, a mere partition deed was not sufficient, for obtaining loan for his business. Hence, two settlement deeds, dated 27.09.2002 and 25.10.2002, respectively, vide Document Nos. 2986 of 2002 and 1339 of 2002, were duly registered. Thereafter, the petitioner borrowed loan from a bank.
5. The petitioner has further submitted that the 1st respondent started illegal intimacy, with one Baskaran, who was working as an assistant, in his shop. One K.M.P. Lakshmanan, brother of the petitioner''s wife, also filed a complaint on 21.09.2004, stating that Baskaran and the 1st respondent/wife were missing. After search, they were brought to the police station. However, in the interest of the children, petitioner and 1st respondent, were constrained to live under the same roof.
6. The family members of the petitioner''s wife, asked her, to execute a settlement deed, in favour of her minor children, appointing her brother, K.M.P. Lakshmanan, to be the guardian of the property. Accordingly, she executed a settlement deed, dated 23.09.2004.
7. Once again, after four years, the 1st respondent and Baskaran started leading adulterous life. During February 2008, 1st respondent eloped with him and abandoned the family. The petitioner preferred a private complaint against Baskaran, before the learned Judicial Magistrate No. I, Virudhunagar, under Section 494 IPC, and that the same is pending in C.C. No. 16 of 2009.
8. The petitioner has further submitted that settlement executed by his wife in favour of the minor children, is only for the purpose of preventing alienation. Brother of his wife and maternal uncle was appointed as guardian.
9. When the matter stood thus, 1st respondent/wife, filed a petition for divorce in HMOP No. 19/2008, on the file of the Sub Court, Virudhunagar. The same was dismissed on 15.02.2008. The 1st respondent preferred HMCMA No. 09/2011 and the same was also dismissed. The petitioner filed GWOP No. 27 of 2008, on the file of Principal District Judge, Virudhunagar at Srivilliputhur, seeking for an order, to appoint him as the guardian of minors, in so far as the properties are concerned. GWOP No. 27 of 2008, was dismissed on 30.08.2011, with a statutory and legal prohibition on the 2nd respondent therein/K.M.P. Lakshmanan, guardian of minors, to alienate and encumber the petition mentioned property, without prior permission of the court. The said order has attained finality.
10. When the 1st respondent was attempting to alienate the property, the petitioner made a paper publication, on 30.11.2011, in Dinathanthi, Madurai Edition, by which, he notified the public, that the properties are covered under a final decree in GWOP No. 27 of 2008, dated 30.08.2011, and alienation of the same is prohibited by court. As there was an attempt to alienate the property, the petitioner filed a suit in O.S. No. 5 of 2012, on 09.02.2012, on the file of the learned Principal District Court, Srivilliputhur, seeking for a declaration that two settlement deeds as sham and nominal, unenforceable and that the properties absolutely belong to the petitioner. He has also filed I.A. No. 34 of 2012, praying for an injunction, against the 1st respondent, from alienating the suit properties, on the basis of the two settlement deeds, executed by him, in favour of his minor children.
11. It is the further case of the petitioner that on 10.02.2012, interim injunction was granted. Subsequently, it was made absolute on 12.06.2012. The petitioner submitted a petition, dated 22.09.2012, to the Sub Registrar, not to register any document. The Sub Registrar sent a reply, dated 26.09.2012, stating that such objection cannot be taken note of and whenever a document is presented, it would be registered, as per the rules.
12. According to the petitioner, he has lodged a complaint with Virdhunagar Bazaar Police Station on 01.10.2012, in CSR No. 103/2012, which was enquired by the police, wherein, respondents 2 and 3, gave an assurance that they would not disturb the petitioner''s possession. Not satisfied with the same, the petitioner filed a private complaint before the learned Judicial Magistrate, to register a case against respondents 1 to 3. The same was forwarded to DCB/ALGSC Virudhunagar. A case in Crime No. 14/13, has been registered on 01.03.2013. The respondents 1 to 3, have been granted anticipatory bail.
13. When the matter stood thus, 1st respondent/wife made her son and daughter, to execute sale deeds dated 26.03.2012 and 15.10.2014 respectively, in favour of respondents 2 and 3, on 15.10.2014, in respect of the property, for which, an injunction had already been obtained in I.A. No. 34 of 2012 in O.S. No. 5 of 2012, dated 12.06.2014, on the file of Principal District Court, Srivilliputhur.
14. The petitioner has further submitted that respondents 2 and 3 herein, are the buyers of the said property, who had purchased half share, on the earlier occasion, through his son Arulmurugan. According to him, when his wife, son and daughter/defendants 1 to 3 in the suit, were already injuncted, by the orders of the trial court, they cannot alienate the properties of the minors. Therefore, the petitioner sent a lawyers'' notice, dated 18.11.2014, to respondents 2 and 3 herein and also to his children/defendants 2 and 3 in the suit. According to him, at the time, when sale deeds were executed, his children had not attained the age of 21 years.
15. It is also his submission that even if somebody has been appointed as guardian to minors, the proper age for the minors, to deal with the property is, 21. According to him, alienation of the property is contrary to the orders of two civil forums namely, Guardian and Wards Act Court as well as the Civil Court. Alleging violation of the order of injunction, dated 12.6.12, made in I.A. No. 34 of 2012 in O.S. No. 5 of 2012, on the file of Principal District Court, Srivilliputhur, present contempt petition has been filed, against his wife, and two other purchasers.
16. Material on record discloses that GWOP No. 27 of 2008, on the file of the Principal District Judge, Virudhunagar, at Srivilliputhur, has been filed by the petitioner under sections 7(1)(a) and 25 of the Guardian and Wards Act, to order for custody of minor children, and also to appoint him as guardian, in respect of the petition mentioned property of minors. The 1st respondent therein, is the wife and K.M.P. Lakshmanan, brother-in-law of the petitioner, is the respondent No. 2 and Baskaran is the 3rd respondent, alleged to have had illegal intimacy with respondent No. 1.
17. After hearing the parties, vide judgment and decree in GWOP No. 27 of 2008, dated 30.08.2011, the learned Principal District Judge, Virudhunagar, at Srivilliputhur, dismissed GWOP. As against K.M.P. Lakshmanan, 2nd respondent therein, the Court ordered that he shall not be permitted to encumber or alienate the petition mentioned property to any third party without obtaining permission of the Court.
18. In so far as the matrimonial proceedings between the petitioner and the 1st respondent, is concerned, dismissal of HMOP No. 19/2008, dated 15.02.2008, on the file of the Sub Court, Virudhunagar, seeking divorce and the appeal thereagainst, in HMCMA No. 09/2011, dated 30.08.2012, had attained finality.
19. Material on record discloses that Arulmurugan, son of the petitioner, has executed a sale deed on 26.03.2012, to the respondents 2 and 3 herein. He has sold his half share of the property, devolved on him, by virtue of settlement deed, dated 23.09.2004 executed by his mother, Vijayalakshmi, wherein, his maternal uncle, K.M.P. Lakshmanan, was the guardian. Recital in the sale deeds reads that on attaining majority and in exercise of his right, over the property, he has sold his half share. Similarly, daughter of the petitioner, Lakshmi Abirami, has also executed a sale deed, on 15.10.2014, in favour of respondents 2 and 3, in respect of her half share of the property, devolved on her, by virtue of the settlement deed, dated 23.09.2004, as stated supra.
20. Initially, suit in O.S. No. 5 of 2012, on the file of the learned Principal District Judge, Virudhunagar, Srivilliputhur, has been filed, for a declaration and permanent injunction, restraining his wife/1st respondent and children, Arulmurugan and Lakshmi Abirami, from interfering with his peaceful possession and enjoyment of the suit property.
21. In the said suit, his wife/Vijayalakshmi, his children, Arulmurugan, Lakshmi Abirami, and his brother-in-law are defendants 1 to 3 respectively. Children have been sued as minors represented by their uncle/K.M.P. Lakshmanan. Interim injunction has been granted on 10.02.2012, and subsequently made absolute on 12.06.2012, against the defendants. Alienation has been made by the son and daughter of the petitioner/Arulmurugan, and Lakshmi Abirami, respectively, on attaining majority. The contention that they cannot alienate the property, before they attain the age of 21 years, when the court had already appointed K.M.P. Lakshmanan, as guardian, cannot be urged, in the matter, where contempt is alleged, against Vijayalakshmi/1st respondent herein. From the perusal of the sale deeds, dated 26.03.2012 and 15.10.2014, executed by Mr. Arulmurugan and Ms. Lakshmi Abirami, respectively, it could be seen that Vijayalakshmi/1st respondent herein is not a party to the deeds. But the present contempt petition is filed against her. Further, parties to the sale deeds dated 26.03.2012 and 15.10.2014 namely, Mr. Arulmurugan and Ms. Lakshmi Abirami/son and daughter of the petitioner and their guardian K.M.P. Lakshmanan/brother-in-law of the petitioner are not made as parties in the contempt petition. Children of the petitioner, on attaining the majority, have sold the properties. While that be the case, this Court is of the view that no prima facie case is made out warranting initiation of any proceedings, under the Contempt of Courts Act.
22. Injunction has been granted under Order 39, Rules 1 and 2 of the Civil Procedure Code. Even assuming that there is any element of a contumacious act, as held in Mr. Jayaprakash v. Most Rev. Dr. B.P. Sugandher, The Moderator, Church of South India and Rt. Rev. S.J. Theedore, The Bishop, reported in , 2006 (2) CTC 729 : 2006 (3) MLJ 42, contempt is not the remedy. At paragraphs 5 to 7, this Court held as follows:--
''''5. Whether a petition of this nature can be filed as a matter of course without approaching the Civil Court which passed the interlocutory order, was sought to be assailed by the counsel that even though applications are filed before the Subordinate Court under the Code to punish the alleged contemners in case of contempt of its order, the Subordinate Courts are unwilling to proceed with the matter, stating that the same can be taken up along with the suit and therefore, the affected persons are forced to knock at the doors of the High Court. We are not inclined to subscribe to a general plea of this nature. In the instant case, there is no such pleading to that effect. On the contrary, an application as contemplated under Order 39 Rule 2-A of the Civil Procedure Code has not been filed before the Subordinate Court. It is not the case of the petitioner/applicant that the Subordinate Court has refused to entertain an application and pass appropriate orders. When such is the case, this Court should not be called upon to take up such applications as a matter of course, as has been done in this case. It is not desirable to exercise the extraordinary jurisdiction of the High Court under Sections 10 and 12 of the Contempt of Courts Act against the alleged condemner for violation of the order of the Subordinate Court. In this regard, it will be relevant to refer to a decision of our High Court reported in , AIR 1966 Madras 21 (Ramalingam v. Mahalinga Nadar), wherein it has been held as follows:
"On the contrary, it would be in the interests of justice to exercise contempt jurisdiction, or to commence to do so, only when the facts on record ex facie support such a proceeding; any detailed enquiry must be left to the Court which has passed the order and which is presumably fully acquainted with the subject-matter of its own decree of temporary prohibitory injunction. For this reason, we are of the view that the Order XXXIX, Rule 2(3) (Rule 2-A) of the Civil Procedure Code is a far more adequate and satisfactory remedy in such cases. Again, where the situation is strictly inter parties and third party rights are not involved, it is clearly more desirable that the Court which made order of injunction, should go into the facts, and ascertain the truth of alleged disobedience and the extent to which it has been wilful."
Further, in , AIR 1971 SC 221, (Perspective Publications (Pvt.) Ltd. v. State of Maharashtra) it has been held as follows:
"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 (Vide (1964) 68 Cal WN 148, , AIR 1951 Pat 231, , AIR 1966 Mad 21 and , AIR 1971 All 231)."
6. While considering the power of the Civil Court in enforcing its order invoking the power under Order 39 Rule 2-A of the CPC, a Division Bench of this Court in the case reported in , 2004 (5) CTC 332 (PVG Industries v. M/s. Premier Industries Drives (P) Limited), while confirming the order of one of us(P.K. Misra, J.) held as follows:
"Order 39, Rule 2-A, C.P.C. deals with consequence of disobedience or breach of injunction and it contemplates that, "in the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2.. any Court... may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison...". Thus Order 39, Rule 2-A, C.P.C. even contemplates the order of attachment of the property."
It is therefore obvious that the remedy provided under the code as aforesaid is equally effective and efficacious. Unless and until the party concerned is able to show that the remedy provided in the code will not be effective and further depending upon the nature of the injury, its seriousness and the threat it created to the enforcement of the order of the Court, and the public interest of the administration of justice which has been affected is so large that it requires the consideration of the High Court to exercise its inherent power. Petitions of this nature will not as a matter of right be entertained. The Court will be circumspect to invoke the jurisdiction, save and except in special and extraordinary circumstances. Such a reason has been endorsed by a Full Bench of this Court in the decision reported in , AIR 1991 Madras 323 (Vidya Charan Shukla v. Tamil Nadu Olympic Association)
7. In the present case, we find that since adequate remedy is available to the petitioner under Order 39 Rule 2A C.P.C., it will not be advisable for this High Court to exercise its extraordinary jurisdiction and proceed under Section 10 read with Section 12 of the Contempt of Courts Act and interfere with the proceedings of the Trial Court, particularly when the suit is pending and the issues are at large before the Subordinate Civil Court.''''
23. In Shaik Mohiddin v. Section Officer, Karnataka Electricity Board, reported in , 1994 CRI.L.J 3689, a Hon''ble Division Bench of the Karnataka High Court held as follows:--
''''19. The Supreme Court had the occasion to deal with the question of exercising the summary jurisdiction by way of contempt in Perspective Publications (P) Ltd. v. The State of Maharashtra, of the judgment therein, the Court referring to the scope of the summary jurisdiction of this Court laid down as follows at Page 229; of AIR:--
"There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now fully settled by the previous decisions of this Court. We may restate the result of the discussion of the above cases on this head of contempt which is by no means exhaustive.
(1)...........
(2) 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."
(3)...........
The Statement of law contained in the decision in the aforesaid case makes it clear that 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 and not otherwise. On the other hand, the trial of cases by the Courts, whose orders are alleged to have been disobeyed, in exercise of the powers conferred on them by Rule 8A of Order 39 C.P.C., is not summary in nature, but such Courts can go in detail into the allegations of disobedience of the orders made by them, after giving a reasonable opportunity of being heard to the persons sought to be punished for disobedience, to find out the correctness or otherwise of the allegations in the complaints and pass appropriate orders thereon. Therefore, this is an another aspect why we should hold that we need not exercise powers of this Court under section 10 of the Act to interfere with these complaints.
20. To conclude, we are clearly of the opinion that so far as the complaint of disobedience of the orders of the Courts below and remedial measures sought for by invoking Section 10 of the Act are concerned, it is not necessary for this Court to take cognizance of the complaints of this kind, inasmuch as the very Court itself whose orders are alleged to have been disobeyed, being competent to make use of the machinery available at its disposal under Rule 2A of O 39 C.P.C., can pass appropriate orders giving reliefs to the aggrieved in accordance with law. It is only when the citizen fails to avail himself of that remedy or when it becomes impossible for him to get the remedy at the hands of the Court passing the order alleged to have been disobeyed, he may think of approaching this Court under Section 10 of the Act and not otherwise.''''
24. In Dr. Bimal Chandra Sen v. Mrs. Kamla Mathur, , 1983 Cri LJ 495, it has been held by a Hon''ble Division Bench of the Delhi High Court that jurisdiction to punish for disobedience of the injunction order granted under Order 39, Rules 1 and 2, Code of Civil Procedure, vests in the Court which granted the injunction. The disobedience of injunction is a civil contempt strictly speaking, it does not fall within Section 2(b) of the Contempt of Courts Act. It is specifically dealt with and provided for in Rule 2-A of Order 39, Code of Civil Procedure. Section 2(b), Contempt of Courts Act, which defines Civil Contempt, does not deal with the case of disobedience of temporary injunction because that subject is specially dealt with in Order 39, Code of Civil Procedure.
25. A Hon''ble Division Bench of the Calcutta High Court in Samir Kumar Sarkar v. Maharaj Singh, 1983 Cri LJ (NOC) 1, held that in cases of disobedience or breach of injunction order issued temporarily during pendency of the suit either under Rule 1 or Rule 2 of Order 39, Code of Civil Procedure, it is inexpedient to invoke and exercise contempt jurisdiction. In such cases, action is contemplated by the Court which issued the injunction under Rule 2A of Order 39, Code of Civil Procedure. It was further held that it is well settled principle of law that when there is a special law and general law, the provisions of special law prevail over general law and since special provisions and procedure are contained in Code of Civil Procedure itself under Rule 2A of Order 39, Code of Civil Procedure, for taking action for the disobedience of an order of injunction, the general law of Contempt of Court cannot be invoked.
26. In the light of the above discussion and decisions, contempt petition is dismissed. No costs.
