Pratap Narain Pande Vs Smt. Nomita Roy and Others

I.P. Singh, J.@mdashThis application u/s 10/12 of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act) at present is at the stage of admission.

2. It is alleged by the Petitioner that he had filed Suit No. 186 of 1983 In the court of Ist Civil Juge, Kanpur against opposite party No. 1 and others for permanent injunction in which on 13-7-83 the learned Civil Judge passed an ad-interitn injunction order restraining the opposite party No. 1 and her associates in Interfering with the possession of the Petitioner over Sunder Talkies and further directed that the Petitioner would not be dispossessed except In accordance with law. The said injunction order continued till the present application was moved on 21-5-84. However, despite full knowledge of the said restraining order of the court, the opposite parties interfered with the possession of the Petitioner over Sunder Talkies In question, first on 18-7-83 and next on 13-11-83 and ultimately he was dispossessed between 13-11-83 and 18-11-83 when opposite parties No. 6 to 8 put opposite party No. 4 in possession through his wife Rajwati in possession thereof.

3. It is further alleged in the petition that against interference dated 18-7-83 the Petitioner on 27-7-83 had moved an application under Order 39 Rule 2-A CPC in the court of Ist Civil Judge, Kanpur, for action impleading all the present opposite parties except opposite party No. 6. On the same day the court had issued notices against all the opposite parties of that application. In pursuance of service of the said notice the present opposite parties No. 1, 2 and 3 had filed their objection before that court.

4. That the said proceedings under Order 39 Rule 2-A CPC were being delayed on one or other pretext of the opposite parties with the result that opposite party No. 4 with the help of other opposite parties to the present petition was continuing in possession over Sunder Talkies, although nearly a year has gone by since filing of application under Order 39 Rule 2-A Code of Civil Procedure. It is contended that the act of the opposite parties clearly amounted to disobedience of the order dated 13-7-83 of the 1st Civil Judge, Kanpur passed in Suit No. 186 of 1983. It is, therefore, desired through the present application to initiate Contempt of Courts proceedings u/s 10/12 of the Act by this Court.

5. Since the contempt in question was alleged to have been committed by disobeying the injunction order of the court of Ist Civil Judge, Kanpur and as a matter of fact, it was disclosed in the petition itself that proceedings under Order 39 Rule 2-A CPC with respect to the disobedience occurring on 18-7-83 were pending in that court a question cropped upas to whether this Court should initiate contempt proceedings concerning the said disobedience dated 18-7-83 as well as second disobedience dated 13/18-11-83 or should leave the matter to be dealt with by the court below whose injunction orders were said to have been violated.

6. It may here be conceded at the very out-set that Section 10 of the Act confers jurisdiction, power and authority on this Court In respect of contempts of courts subordinate to it.

7. At the same time Order 39 Rule 2-A CPC provides Consequence of disobedience or breach of injunction-(1) In the case of disobedience of any Injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, 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 for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No. attachment made under this role shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

8. Learned Counsel for the Petitioner has argued that when remedies are open in two forms then It Is for the Petitioner to choose the forum so the mere fact that remedy under Order 39 Rule 2-A CPO is open, It cannot stand in the way to bar the present application in this Court for the exercise of its jurisdiction, power and authority under the Contempt of Courts Act.

9. Learned Counsel for the Petitioner has in this connection referred to the decision State v. S.N. Dikshit 1973 ACC 98 (DB) in which the question of criminal contempt u/s 2(c) of the Act with regard to writing of defamatory letter was Involved. In column 2 at page 105, it was observed:

It was also submitted that the contents of the letter at the most amounted to libel against the officer concerned, which was an offence under the Indian Penal Code, the officer concerned, therefore, could seek his appropriate remedy against Sri Dikshit but the latter was not liable for punishment under the Contempt of Courts Act. This contention is untenable. A distinct remedy may be available to a person who has been defamed or against whom a complaint has been made but if the same action does constitute contempt the person responsible for such action is liable to be punished under the provisions of Contempt of Courts Act. The two remedies are not naturally exclusive.

In column 1 at page 106 it was said "Following the same principle Tek Chand, J. observed in State v. Radha Krishna:

that the fact that the defamation of a Judge of a subordinate court constitutes an offence u/s 499 of the Indian Penal Code does not oust the jurisdiction of the High Court to take cognizance of the Act as a contempt of Court.

10. It was therefore, argued that the availability of alternative remedy is No. bar to the maintenance of the present contempt application in this Court under the Act. But the above decision and observations ate distinguishable. The above decision concerned criminal contempt with respect to defamatory matter which was punishable offence under the Indian Penal Code. The point which I want to stress is that the alternative remedy was not by way of contempt action but by way of criminal prosecution. In the present case alternative remedy of action under Order 39 Rule 2-A Code of Civil Procedure, in my view is also an action for contempt. Thus a choice is only about the forum in which the contempt proceedings should commence. In this view of the matter, the above decision of the Division Beach is not of direct application to the point Involved in the present petition.

11. I may further point out that it can rightly be said that where even the ''same remedy'' lies in two forums the choice is of the Petitioner to select the forum. But at the same time it is to be remembered that where the question of the same remedy by way of contempt action is involved, the power and authority to be exercised by this Court under the Contempt of Court Act to initiate contempt proceedings against the alleged contemner is discretionary. The applicant has No. vested right to claim that the contemner must be punished. The applicant brings the facts to the knowledge of the court and points but how contempt of court has been committed. Thereafter the matter is merely between the court and the contemner. Here comes in the discretion of this Court whether to proceed or not against the alleged contemner. I am fortified in holding this view by the following reported decisions:

1. Ram Rup Pandey v. A.K. Bhargava AIR 1971 Allahabad 231, this was a case under the Contempt of Courts Act, 1952 when there was No. separate definition of "Criminal Contempt" and "Civil Contempt." These two types of contempts were defined for the first time in the Act (of 1971).

In paragraph 3 it was observed:

However, even assuming that there was such an order, the question arises whether the applicant should not be left to his remedy provided under Order 39, Rule 12 Sub-rule (3) of the Code of Civil Procedure, instead of permitting him to invoice the jurisdiction of this Court under the Act.

In paragraphs 4, 5, 6 and 7 of the above decision, the following discussion appears:

4. A preliminary objection has been taken on behalf of the contesting opposite parties that this is not a suitable case for proceeding further as an alternative remedy is available to the applicant. In support of this proposition, reference was made to Bathina Ramakrishna Reddy Vs. The State of Madras, where an objection was taken to the jurisdiction of the High Court to proceed under the Act on the ground that the alleged contempt constituted an offence punishable u/s 499, IPC. Section 2 Sub-section (3) of the Act lays down as follows:

No. High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

It was clarified by the Supreme Court that the jurisdiction of the High Court was only barred where the alleged offence of contempt was itself punishable as a contempt under the Indian Penal Code, thus, the jurisdiction would be barred in a case in which an offence u/s 228 IPC was committed by the alleged contemner. In the course of its judgment the Supreme Court observed:

It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court u/s 2(3), Contempt of Courts Act but it would not be correct to say that the High Court''s jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is other-wise an offence under the Indian Penal Code.

Hence, it was held by their Lordships that an offence punishable u/s 499. IPC may also constitute a punishable ground of action under the Act by a High Court. This case does not directly help the opposite parties before me.

5. Another case cited was AIR 1943 147 (Privy Council) where the Privy Council held that "the question of committal or non-committal is one for the exercise of the discretion of the Court before whom the application to commit is brought, and unless there is found to be a serious disregard of the principles of natural justice, their Lordships would be slow to interfere with that discretion". It went on to observe: "No. doubt the fact that there is another remedy available is a matter for the Court to consider when exercising its discretion whether to commit or not to commit, but on the other hand, the desirability of speed and the necessity of ensuring that the orders of the Court should be observed are also matters of importance. The Court may, therefore, consider that after two years of disobedience a heavier fine than that permitted by the Waqf Act should be imposed, or in a proper case that imprisonment should be awarded ". In that case, the alleged contempt was the failure of a Mutawalli to furnish information which also constituted an offence under the Waqf Act. Here also the provisions of Section 2, Sub-section (3) of the Act were construed by the Privy Council. It held that, although the jurisdiction of the Court was not barred, yet, the power to take action was discretionary. If that is so, the grounds upon which a discretionary relief is granted or refused would be open for either side to urge in a case such as the one before me now.

6. Reference was also made to a Full Bench decision of the Travancore-Cochin High Court in N.C. Thomas v. Thomokutty AIR 1952 Trav-Co 113 where an order u/s 144, Code of Criminal Procedure was alleged to have been disobeyed. It was held there that, there being an alternative mode of redress against such a violation, the powers of the court under the Act should not be invoked although its jurisdiction was there.

7. Mr. K.N. Singh, appearing for the Adhyaksha, relied on A. Ramalingam Vs. V.V. Mahalinga Nadar, where It was held that the High Court should not exercise its discretionary jurisdiction under the Act in a case where a detailed enquiry could be made under Order 39, Rule 2 Sub-rule (3), CPC by the Court which had passed the injunction order. This case is a direct authority which supports the submission of the alleged contemners.

2. In Baradakanta Mishra Vs. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court, it was observed in para 5 at page 2258:

Now while considering this question, we must bear in mind the true nature of the contempt jurisdiction exercised by the High Court and the law in regard to right of appeal which obtained immediately prior the enactment of the Contempt of Courts Act, 1971. It has always been regarded as well settled law that so far as criminal contempt is concerned it is a matter entirely between the Court and the alleged contemner. No. one has a statutory or common law right to say that be is entitled as a matter of course to an order for committal because the alleged contemner is guilty of contempt. All that ho can do is to move the Court and draw its attention to the contempt alleged to have been committed and it will then be for the Court, if it so thinks fit, to take action to vindicate its authority and commit the alleged contemner for contempt. It is for the Court in the exercise of its discretion to decide whether or not to initiate a proceeding for contempt. Even if the Court Is prima facie satisfied that contempt has been committed, the court may yet choose to ignore it and decline to take action. There is No. right in any one to compel the Court to initiate a proceeding for contempt even where a prima facie case appears to have been made out. The same position obtains even after a proceeding for contempt is initiated by the Court on a motion made to it for the purpose. The Court may in the exercise of its discretion accept an unconditional apology from the alleged contemner and drop the proceeding for contempt, or even after the alleged contemner is found guilty, the Court may, having regard to the circumstances, decline to punish him. So far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. An outside party comes only by way of drawing the attention of the Court to the contempt which has been committed; he does not become a part to the proceeding for contempt which may be initiated by the Court. It was for this reason that a Division Bench of the Bombay High Court held in Narendrabhai Sarabhai Hatheesing Vs. Chinubhai Manibhai Seth, that an order made by the High Court refusing to commit a man for breach of an undertaking given to the Court is not a judgment within the meaning of Clause 15 of the Letters Patent as it does not effect the merits of any question between the parties to the suit, Beaumount C.J. pointed out:

The undertaking is given to the Court, if it is broken, and that fact is brought to the Court''s ''notice the Court, may take such action as it thinks fit. If it comes to the conclusion that the order has been deliberately broken it will probably commit the defaulter to jail, but the Court is free to adopt such course, as it thinks fit.

Rangnekar, J. also spoke in the-same strain when he said: "Proceedings for contempt are matter entirely between the Court and the person alleged to have been guilty of contempt. No. party has any statutory right to say that be is entitled as a matter of course to an order for committal because his opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted and if the Court thinks that it was so then the Court in its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application for contempt raises any question between the parties, so that any order made on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties.

12. Here I may point out that the above observations include both the matters relating to "criminal contempt" as well as "civil contempt" inasmuch as "undertaking given to the court is nothing but, a civil contempt".

13. It can, therefore, be conclusively and affirmatively asserted that the exercise of jurisdiction, power and authority of this Court under the Act Is discretionary.

14. Here it may also be observed that although the discretion is there but then it has to be exercised on well settled judicial principles. In the context of present case another question arises as to whether the alternative remedy under Order 39 Rule 2-A CPC is an effective remedy or not. Certainly, if it is not an effective one, then certainly the discretion of this Court ought to be and would be in favour of exercising jurisdiction, power and authority under the Act. In this connection a reference with advantage be made to the decision in Smt. Indu Tiwari v. Ram Bahadur Choudhary AIR 1981 All. 309 it was held therein:

In my opinion, a person who has got an effective alternative remedy of the nature specified in Order XXXIX Rule 2-A, or under Order XXI Rule 32, Code of Civil Procedure, shall not be permitted to slip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be proper exercise of discretion on the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person.

15. Learned Counsel for the Petitioner has argued in line with the averments made in the petition that the remedy under Order 39 Rule 2-A CPC is not proving effective inasmuch as almost a year has gone by and nothing fruitful has come out of the proceeding under Order 39 Rule 2-A CPC pending before the court below. It is argued that effectiveness of those proceedings has been marred by the delay, involved. The said delay is said to be the result of dilatory tactics on the part of the opposite parties in those proceedings on one ground or the other. In my view the efficacy of those proceedings is to be considered with reference to the purpose of the provision In the context of the facts of the present case in hand the efficacy of the provision has to be tested on the touchstone of the fact as to whether enforcement of the alleged violated injunction order can be achieved in the proceedings in the court below or not in view the facts as alleged by the Petitioner to achieve, enforcement of the injunction order, the Petitioner will have to be put back in possession of Sunder Talkies. One can visualise that if toe injunction order in question has really been violated, then the court below is certainly empowered by the provisions of Order 39 Rule 2-A CPC to compel the condemners to rectify their violations and restore the status quo ante as it prevailed at the time of passing of the Injunction order in question (as a result of the finding of fact to be arrived at by the court below that the Petitioner has been dispossessed from Sunder. Talkies by the alleged contemners) and even to restore possession of Sunder Talkies to the Petitioner on the pain of attachment of the contemners property and sale thereof or the detention of the contemners in civil prison in terms as provided under Order 39 Rule 2-A Code of Civil Procedure. In this context the efficacy of the proceedings under Order 39 Rule 2-A CPC is very much there. The arguments of the learned Counsel for the Petitioner that the court is feeling helpless in proceeding with the proceedings due to the delaying tactics of the opposite parties arrayed therein does not appear very much convincing inasmuch as the court below can always adopt such procedure permissible under law to expedite proceedings The question of helplessness of the court, in my view, has No. merits. In the circumstances of the case the remedy under Order 39 Rule 2-A CPC is far more adequate and satisfactory remedy as disobedience of an injunction order of the court below is involved.

16. Looking to the over all circumstances as discussed above, I am not at all inclined to exercise jurisdiction, power and authority of this Court under the Act which is a discretionary one. The petition is hereby rejected. However, the Petitioner may proceed on with his application under Order 39 Rule 2-A CPC which he hat already moved before the court below concerning the alleged violation dated 18-7-83 and if so advised, may again resort to a similar remedy with respect to the alleged violation said to have been committed between 13th and 18th November, 1983.