J.R. Jindal Vs Family Planning Association of India and Others

@JUDGMENTTAG-ORDER

Cyriac Joseph, J.@mdashThe petitioner was elected President of the Family Planning Association of India, New Delhi Branch (respondent No. 1) in the elections held on 30.12.1994. Respondents 2 to 8 were elected Members of the Executive Committee. Pursuant to certain allegations against the petitioner, the Executive Committee of respondent No. 1 constituted a three members committee to enquire into the allegations and the said committee on 8.1.1996 submitted a report holding the petitioner guilty of nine charges. In the Extraordinary meeting of the Executive Committee held on 9.1.1996 the report of the three members committee was considered and a resolution was passed to take action against the petitioner under Rules of the Association. A "No Confidence Resolution" also was passed against the petitioner. The petitioner filed a suit for permanent injunction (S. No. 219/96) in the High Court of Delhi praying for a decree declaring that the Extraordinary Meeting of the Executive Committee held on 9.1.1996 was null and void and that the resolution passed therein also was void. The said suit was disposed of the High Court on 14.2.1996. As per the order dated 14.2.1996 of the High Court, all the allegations made against the plaintiff (petitioner herein) would be enquired afresh by one Mr. K.K. Gupta who would give an opportunity of hearing to all the parties and would submit his report within two months. The report of Shri K.K. Gupta would be binding on the parties. In case any action was to be taken pursuant to the report of Shri K.K. Gupta, the same should be got approved by the General Body of the Family Planning Association of India, New Delhi Branch. If the plaintiff was sought to be removed from the post of President by the Executive Committee or the General Body for reasons other than the allegations which were set out in paragraph 28 of the plaint and were to be enquired into by Mr. K. K. Gupta, then it would be open to the plaintiff to assail the same on grounds admissible in law. Pending the submission of the report by Shri K.K. Gupta and action thereon, Ms. Shiela Thandani would function as Acting President with all the powers of President. In view of the settlement reached between the parties the defendants would not act on the resolution passed on 9.1.1996. The Annual General Body meeting of respondent No. 1 Association would be held as scheduled on 15.2.1996 but in view of the settlement between the parties the allegations against the President would not be taken up in the said meeting.

2. Shri K.K. Gupta submitted his report on 15.4.1996 holding that 7 of the 9 allegations related to certain irregularities and lapses in day to day functioning and administration of the Branch and that the management of the Branch was the collective responsibility of the Executive Committee and Therefore the blame and responsibility could not be put on one individual. However, the petitioner was held guilty in respect of two allegations. Thereafter the Executive Committee at its meeting held on 19.4.1996 discussed the report of Shri K.K. Gupta and resolved that the petitioner be removed from the post of President.

3. As per the High Court''s order in Suit No. 219/96 any action to be taken pursuant to the report of Shri K.K. Gupta had to be approved by the General Body of respondent No. 1. Hence an Extraordinary General Body meeting of respondent No. 1 was convened on 6.5.1996 at 4.00 P.M. to consider the proposal of the Executive Committee to remove the petitioner from the post of President. Then the petitioner filed another civil suit bearing No. 395/96 challenging the above mentioned decision of the Executive Committee. In the said civil suit the learned Civil Judge passed an ex parte injunction order on 6.5.1996 restraining the defendants from holding the Extraordinary General Body Meeting on 6.5.1996 for considering the agenda of removal of the plaintiff from the post of President. Summons of the suit and notice of the injunction application were directed to be sent to the defendant on PF for 10.5.1996.

4. According to the petitioner, the learned Civil Judge granted the ex parte injunction order at 3.30 P.M. and the meeting was scheduled to be held on 4.00 P.M. and Therefore the learned Civil Judge advised the petitioner to communicate the order by FAX and to deliver a certified copy of the order after obtaining it from the Court. The petitioner claims to have informed the learned Civil Judge that there was no FAX facility in the office of the Association and the learned Civil Judge is stated to have advised the petitioner to communicate the order telephonically. It is stated in the petition that the petitioner communicated the injunction order to Dr. M.A.M. Owasy, Executive Secretary of respondent No. 1-Association , Dr. R.C. Gupta, one of the members of the Executive Committee, Brig. D.S. Chawla, former Municipal Health Officer and one of the senior members of Family Planning Association of India and other 3-4 senior members of the Association namely Shri Vijay Gupta and Shri D.N. Wadhwa. It is also stated that he applied for the certified copy of the order and that it was made available to him at about 4.30 P.M. on the same day.

5. According to the petitioner, after receiving the telephonic message from the petitioner the Executive Secretary and other members to whom the message was communicated informed the Acting President and other office bearers of respondent No. 1 Association about the message at 4.00 P.M. itself i.e. before the start of the meeting. However, it is alleged that the respondents did not give any consideration to the said message. They even declined to wait for the petitioner who was on his way along with certified copy of the injunction order. It is alleged that the respondent concluded the entire proceedings of the General Body Meeting within a few minutes and concluded it at 4.30 P.M. announcing that the decision to remove the petitioner from the post of President had been passed. According to the petitioner the respondents by holding the meeting and deciding to remove the petitioner from the post of President acted mala fide and in willful disobedience of the injunction order passed by the learned Civil Judge and Therefore committed civil contempt.

6. To substantiate his case that the injunction order was telephonically communicated to the Executive Secretary and others, the petitioner has produced a copy of the Minutes of the General Body meeting held on 6.5.1996. The said minutes show that at 4.15 P.M. Dr. Oysec and subsequently Brig. S.L. Chadha brought to the notice of the Acting President that there was a telephonic message from Mr. J.R. Jindal (petitioner herein) that in response to a writ petition filed by him the Court had restrained the holding of the Extraordinary Meeting of the yene-al Body. They minutes further show that the matter was discussed by the members but the General Body unanimously decided to continue the proceedings after observing that the House could not take cognizance of telephonic message from the party and that they would react only when official order from the Court was received.

7. According to the averments in this petition the petitioner had filed a contempt petition against the respondents in the court of the Civil Judge under Order 39 Rule 2A read with Section 151 CPC. However the said petition was dismissed by the learned Civil Judge on 27.5.1996 observing that there was no legal obligation for the respondents to take cognizance of the oral communication received from the plaintiff through some members and that being an interested party the plaintiff could have passed on incorrect and manufactured information. The learned Civil Judge also pointed out that the general body meeting on 6.5.1996 was convened on the basis of a resolution dated 22.4.1996 of the Executive Committee, but the plaintiff filed the suit only on 6.5.1996. According to the learned Civil Judge, by the time the meeting took place on 6.5.1996 there was no due and proper communication of the injunction order to the respondents and hence they could not be charged for committing contempt of court. Against the said order dated 27.5.1996 the petitioner has filed an appeal before the senior Civil Judge and it is pending.

8. In this C.P.C the petitioner had filed an application CM 2420/96 praying to restrain the respondents from holding fresh elections to the post of President and other office bearers and members of the executive committee and also from interfering with the discharge of the duties of President by the petitioner during the pendency of the CCP. The said application was disposed of by this court on 19.12.1996 directing that till 30.12.1996 the respondents would not interfere with the discharge of duties by the petitioner as President of the Association and that any one elected as President in the annual general body meeting scheduled to be held on 22.12.1996 should not assume the office of President before 31.12.1996. Thus inspire of the decision of the extraordinary general body meeting held on 6.5.1996, the petitioner was allowed to continue as President till his tenure as President expired on 30.12.1996.

9. A counter affidavit has been filed on behalf of respondents 1 to 7 questioning the maintainability of the CCP and contending that the respondents did not commit civil contempt. It is also stated in the counter affidavit that the ex parte interim order passed by the learned Civil Judge on 6.5.1996 in suit No. 395/96 was not officially served on the respondents and that the extraordinary general body meeting was held on 6.5.1996 and a resolution was passed as per the agenda item. It is contended that the application filed by the petitioner in the court of the Civil Judge under Order 39 Rule 2A CPC was dismissed by the learned Civil Judge and an appeal filed by the petitioner against the said order of the learned Civil Judge is still pending and Therefore, this CCP is not maintainable. It is further stated in the counter affidavit that respondent No. 1 has already filed CCP 85/96 against the petitioner alleging that the petitioner committed contempt of court by filing Suit No. 395/96 after agreeing before the High Court in Suit No. 219/96 that the report of Shri K.K. Gupta would be binding on the parties to the said suit.

10. From the abovementioned pleadings in this case two questions arise for consideration. The first question is whether this petition is maintainable in view of the provisions contained in Order 39 Rule 2A CPC and the dismissal of the petitioner''s application under Order 39 Rule 2A CPC by the learned Civil Judge. The second question is whether the conduct of the respondents amounted to willful disobedience of the ex parte injunction order passed by the learned Civil Judge.

11. I shall first deal with the question regarding the maintainability of this CCP. In respect of the action of the respondents in holding the extraordinary general body meeting on 6.5.1996 and passing the resolution for removal of the petitioner Shri J.R. Jindal from the post of President in spite of the ex parte injunction order passed by the learned Civil Judge on 6.5.1996 in suit No. 395/96, the petitioner had admittedly filed an application before the learned Civil Judge under Order 39 Rule 2A of the CPC and after hearing the parties the said application was dismissed on merits by the learned Civil Judge on 27.5.1996. The appeal filed by the petitioner before the Senior Civil Judge against the order dated 27.5.1996 of the learned Civil Judge is admittedly pending. To substantiate the contention that the CCP is not maintainable, learned counsel for the respondents cited the judgments reported in 1992 RLR 553, AIR 1982 Kar 182 and Smt. Indu Tewari Vs. Ram Bahadur Chaudhari and Others, . In the judgment in Dr. Bimal Ch. Sen Vs. Mrs. Kamla Mathur reported in 1982 RLR 553, a Division Bench of this court held that the remedy against disobedience or breach of an injunction order passed by the civil court was under Order 39 Rule 2A of the CPC. In the judgment in Rudraiah Vs. State of Karnataka and Others, a Division Bench of the Karnataka High Court held that in cases of disobedience or breach of injunction order issued temporarily during the pendency of the suit, action was contemplated by the very court which issued the injunction order, under Rule 2A of Order 39 CPC. The court also held that the general provisions made under the Contempt of Courts Act could not be invoked by the decree holder for forcing the party to obey the injunction order when special procedure and special provision are contained in the CPC itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction. In the judgment in Smt. Indu Tewari Vs. Ram Bahadur Chaudhari and Others, a Single Bench of the Allahabad High Court held that a person who has got an effective alternate remedy of the nature specified under Order 39 Rule 2A CPC should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The court also held that it would not be a proper exercise of discretion on the part of the High Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy was available to any person. I am also of the view that ordinarily a person complaining about disobedience or breach of an injunction order passed by the Civil Court should resort to the remedy under Order 39 Rule 2A CPC rather than filing a petition in the High Court under the provisions of the Contempt of Courts Act. In this case the petitioner had resorted to the remedy under Order 39 Rule 2A CPC by filing an application against the respondents before the learned Civil Judge. The said application was dismissed on merits by the learned Civil Judge and the appeal filed by the petitioner against the order of the learned Civil Judge is pending. Having filed an application under Order 39 Rule 2A CPC and having got it dismissed on merits the petitioner cannot be allowed to invoke the provisions of the Contempt of Courts Act on the same cause of action. Hence I hold that this petition is not maintainable.

12. However, learned counsel for the petitioner submitted that under the provisos of Article 215 of the Constitution of India this court has got ample powers to proceed against the respondents and to punish them for committing contempt of court. In support of his contention the learned counsel for the petitioner relied on the judgment of the Hon''ble Supreme Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat & Ors. reported in 191 (4) SCC 406. I have no doubt that the High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts. At the same time it has to be pointed out that this petition has been filed by the petitioner under the provisions of the Contempt of Courts Act and that the petitioner has not invoked the jurisdiction of this court under Article 215 of the Constitution of India. Even otherwise, I am not inclined to exercise the jurisdiction under Article 215 and to proceed against the respondents for alleged disobedience of the ex parte injunction order passed by the learned Civil Judge since the petitioner has already resorted to the remedy under Order 39 Rule 2A CPC. It would not be a proper exercise of discretion on the part of this court to exercise its jurisdiction under the provisions of the Contempt of Courts Act or Article 215 of the Constitution when the petitioner has already filed an application under Order 39 Rule 2A CPC before the court which passed the injunction order and the said application has been dismissed on merits by the said court.

13. In view of my finding on the first question it is not really necessary to consider the second question. However since the learned counsel for the parties have made their submissions on the second question also, I shall proceed to deal with the second question as well.

14. Admittedly the ex parte injunction order passed by the learned Civil Judge was not officially served on the respondents before the extraordinary general body meeting held on 6.5.1996 passed the resolution removing the petitioner from the post of President. The injunction order was not directly communicated to any of the respondents. Even copy of the order was not made available to the respondents. There was no communication from the counsel for the petitioner. Even according to the petitioner, he had communicated the injunction order through a telephonic message to the Executive Secretary and some other members of respondent No. 1 association. The respondents have admitted that the telephonic message from the petitioner was brought to the notice of the General Body but the General Body refused to take cognizance of the telephonic message from Mr. J. R. Jindal who is a party to the dispute. The General Body decided that they would react only when the order of the court was officially received. Obviously the General Body entertained doubts about the authenticity of the communication.

15. According to the learned counsel for the petitioner, even in the absence of official communication of the injunction order the respondents were guilty of committing civil contempt since they had knowledge about the injunction order. In support of his contention the learned counsel relied on the judgments reported in Hoshiar Singh Vs. Gurbachan Singh, . It is true that in Hoshiar Singh Vs. Gurbachan Singh, the Hon''ble Supreme Court held that in the matter of a prohibitory order it was not necessary that the order should have been served upon the party against whom it had been granted in order to justify committal for breach of such an order, provided it was proved that the person complained against had notice of the order aliunde. However, in the same judgment the Hon''ble Supreme Court held that there might be circumstances where the alleged contemners may have valid reasons to doubt the authenticity of the order conveyed to them by interested parties and in those circumstances it might be said that there was no willful disobedience of the order made. In the case before the Supreme Court the alleged contemners were informed about the order of the court not merely by interested parties but by an Advocate (who was an officer of the court) and a formal application supported an affidavit was made stating that the court has passed a valid order staying delivery of possession of certain lands to certain allottees. In Bunna Prasad and Others Vs. The State of U.P. and Another, , the Hon''ble Supreme Court held that in cases of contempt by disobedience of prohibitive order of court, in order to justify committal it was not necessary that the order should have been served upon the party against whom it had been granted, if it was proved that he had notice of the order aliunde, as by telegram or newspaper report or otherwise and he knew that it was intended to be enforced or if he consented to the order or if he was present in court when the order was pronounced or when the motion was made although he left before the order was pronounced. In such a case those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt the benefit ought to be given to the person charged with contempt of court. The court further held that if a person bona fide came to the conclusion on the materials placed before him that the source of information was not authentic he could not be held guilty of contempt of court for disobeying the order. In the above case, the proceedings before a Nyaya Panchayat were stayed by the High Court and a telegram was sent by the counsel to the party but the party without furnishing either a copy of the telegram or any affidavit made an application for stay before the Nyaya Panchayat after the proceedings had commenced. The Nyaya Panchayat on materials placed before it bona fide came to the conclusion that the source of information so furnished before it was not authentic. The Supreme Court held that the members of the Nyaya Panchayat could not be held guilty of contempt of court. In The Aligarh Municipal Board and Others Vs. Ekka Tonga Mazdoor Union and Others, the Hon''ble Supreme Court held that in order to justify action for contempt of court for breach of prohibitive order, official communication of the order was not a condition precedent, provided the alleged contemner had knowledge of the exact order aliunde and there was no valid reason to doubt the authenticity of the order conveyed to him.

16. In the present case information about the injunction order was given to the respondents only through a telephonic message from the petitioner, who is an interested party, to some other members of the General Body (and not directly to the respondents); there was no communication from his advocate; no copy of the order was made available; no written communication was given; and the correct and full text of the order was not known to the respondents. The respondents and other members of the General Body were informed about the telephonic message from the petitioner after the General Body meeting commenced. In such circumstances the respondents had valid reasons to doubt the authenticity of the message and order conveyed to them by the interested party. Hence the respondents cannot be said to have wilfully disobeyed the injunction order. It is also not fair or proper to expect the respondents to have a duly convened extraordinary meeting of the general body dissolved and postponed on the basis of a telephonic message at the last moment from the petitioner especially when the only item in the agenda for the said meeting was the proposal to remove the petitioner from the post of President of respondent No. 1 Association. Therefore, I am of the view that the respondents cannot be said to have wilfully disobeyed the ex parte injunction order passed by the learned Civil Judge and thereby committed contempt of court.

In the light of the discussion above I hold that there is no merit in the petition and it is accordingly dismissed. There will be no order as to costs.