IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29 -04-2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Contempt Petition No.578 of 2003 Fibroflex India Private Limited (formerly known as Bharat Motors Prop.N.R.Private Limited) rep. by its Managing Director R.Raghuraman No.151, Mount Road, Madras 600 002. .. Petitioner. Versus 1.M/s.Seven Hills Real Estate rep. by its partner Mr.P.N.Thiagarajan No.33, Krishnan Koil Street, Madras 600 001. 2.P.N.Thiagarajan 3.P.N.Subramanian 4.P.N.A.Mani Sundaram .. Respondents. Prayer: Petition under Section 10 and 12 of the Contempt of Courts Act, 70/71 seeking to punish the respondents for committing contempt of the order passed by this Hon'ble Court, on 27.6.1996, in Appln No.2787 and 2788 of 1995 in O.A.No.557 of 1995 in C.S.No.714 of 1995, as well as for breach of undertaking given before this Hon'ble Court. For Petitioner : Mr.S.R.Raja Gopal For Respondents : Mr.R.Thiagarajan (R1, R2 & R4) Mr.T.K.Kulasekaran (R3) O R D E R Heard Mr.S.R.Raja Gopal, the learned counsel appearing on behalf of the petitioner and Mr.R.Thiagarajan, the learned counsel appearing on behalf of the respondents 1, 2 and 4 and Mr.T.K.Kulasekaran, the learned counsel appearing on behalf of the third respondent. 2. This contempt petition has been filed praying that this Court may be pleased to punish the respondents for committing contempt of the order passed by this Court, on 27.06.1996, in Application No.2787 and 2788 of 1995 in O.A.No.557 of 1995 in C.S.No.714 of 1995. 3. It has been submitted that the petitioner had filed a suit in C.S.No.714 of 1995 before this Court praying for the relief of specific performance, directing the defendants to execute and register the sale deed in respect of 7/130 th of the undivided share of ground together with 3500 sq.ft of built up area in the basement of the building in Schedule "A" to the plaint and for other reliefs. An original application had been filed in the said suit in O.A.No.557 of 1995, praying for an interim injunction restraining the respondents from alienating or transferring the suit property to third parties, pending disposal of the suit. This Court, by its order, dated 09.05.1995, had granted an exparte order of injunction. Thereafter, the 5th and the 3rd respondents had preferred two applications in Application No.2788 of 1995, to vacate the exparte order of injunction and Application No.2787 of 1995 to modify the order of injunction in O.A.No.557 of 1995, restricting the same in respect of the plaint "B" schedule property. Subsequently, by an order, dated 30.5.1995, the exparte order of injunction was confined to the schedule "B" mentioned property. By an order, dated 27.6.1996, this Court had made absolute the order of interim injunction granted earlier, restraining the defendants from alienating the "B" schedule property. The petitioner had preferred an application in O.A.No.910 of 1995 and an application in Application No.4424 of 1995 for handing over possession of 3500 sq.ft of built up area in the basement of the building before it was let out to third parties and for an order of interim injunction restraining the defendants from letting out the suit property to third parties pending suit. The petitioner had also filed another application in Application No.1559 of 1997 to lease out the "B" schedule property to the petitioners. The learned counsel appearing on behalf of the defendants had stated that the building in question had not been completed and as soon as it was ready, the petitioner would approach this Court for suitable directions. Thereafter, on 16.06.1996, this Court had passed an order in Application No.1559 of 1997, directing the respondents 1 to 3 therein to obtain the permission of this Court before the property mentioned in Schedule "B" was leased out to third parties. In such circumstances, it is alleged by the petitioner that the respondents had wilfully disobeyed the order passed by this Court, on 27.06.1996, and for the breach of the undertaking given by the respondents. 4. In the counter affidavit filed on behalf of the second respondent, the allegations made by the petitioner are denied. It has been stated that the second respondent's brother P.N.Arumugam was the Managing Partner of M/s.Seven Hills Real Estate. It has been further stated that M/s.A.R.Builders Private Limited, who had entered into a Joint Development Agreement with the second respondent have not completed the construction of the building as per the terms of the contract. However, one P.N.A.Mani Sundar @ P.N.Mani, the second respondent's nephew, who has been doing hoarding business, chose to run a basic office, without any permanent structures or partition or fittings, only for the purpose of hoarding some materials. The second respondent had not let out the basement to any tenant or partners of the firm, M/s.Seven Hills Real Estate, for rent, as alleged by the petitioner. Thus, it has been stated that the second respondent had not committed any contempt of Court. 5. In the counter affidavit filed on behalf of the third respondent, it has been stated that the petitioner had filed an application in the suit for appointment of an Advocate Commissioner. However, instead of pursing the same, the petitioner had filed various sub-applications in the contempt petition including the sub application for appointment of an Advocate Commissioner to inspect the `B' schedule property. The Advocate Commissioner after inspecting the property had filed a report stating that the fourth respondent/proposed party, P.N.A.Manisundar, was in occupation of the property in question and that he is a partner of the first respondent partnership firm. It has also been stated that the contempt petition has been filed, on 18.7.2003, after a period of eight years from the date of the alleged contempt and therefore, it is barred by limitation under Section 20 of the Contempt of Courts Act, 1971. The petitioner's attempt in filing the contempt petition and the sub applications is solely with the intention of grabbing the property from the respondents. 6. In the counter affidavit filed on behalf of the fourth respondent it has been stated that he is not a party to the application in O.A.No.557 of 1995, in C.S.No.714 of 1995. It has been further stated that he is neither a party to the application nor a party to the order passed in the said application. Since the suit property belongs to the family of the fourth respondent, he had occupied the same in his capacity as the son of the deceased partner P.N.Shanmugam. In such circumstances, there is no impropriety or illegality in his occupation of the basement of the suit property. It has also been stated that the fourth respondent has not flouted or disobeyed the orders passed by this Court. 7. In the reply affidavit filed on behalf of the petitioner, it has been stated that the counter affidavit filed by P.N.Thiagarajan, on 25.02.2008, is contrary to his own affidavit filed in the month of February 2004. In the counter affidavit, dated 25.02.2008, paragraph-5 reads as follows: "In other words, we have not parted with the possession of the basement of the building in question in favour of any person for any consideration and as such, the allegations made by the petitioner that the premises is occupied by P.N.A.Mani Sundar over 5 years is factually incorrect." and in the counter affidavit filed in the month of February, 2004, it is stated as follows: "We have not let out the property to any tenant. The builder viz. the 5th defendant in the suit has not so far delivered possession to us in respect of `B' schedule property. Hence the question of our letting out the property to any tenant does not at all arise". 8. It has also been stated that there are other contradictions in the counter affidavits filed by the fourth respondent leading to the conclusion that the property in question was in the occupation of a person, as a tenant, running a company, manufacturing boards and hoardings. In such circumstances, the respondents are to be punished for violation of the orders passed by this Court, dated 27.06.1996, and they are also liable for criminal contempt under Section 2(c)(iii) by interfering and obstructing the administration of justice. 9. The learned counsel appearing on behalf of the petitioner had submitted that the order passed by this Court, on 27.06.1996, is being flouted with impugnity. In spite of the fact that the Advocate Commissioner appointed by this Court had found that there was a person occupying the suit premises, the respondents continued to deny the fact that the person in occupation of the suit premises is not a tenant paying rent. From the facts of the case, it is clear that the suit premises has been leased out for rent, without the prior approval of this Court. Thus, the respondents had committed contempt of Court by wilfully disobeying the order passed by this Court, on 27.06.1996. Such blatant violation by the respondents should not be tolerated as it would lower the authority and the majesty of this Court. 10. The learned counsel appearing on behalf of the respondents had submitted that there is no substance or merit in the contempt petition as the allegations made therein, have been denied by the respondents. The contempt petition has been filed after a lapse of more than seven years and thus, it is beyond the period of limitation prescribed under Section 20 of the Contempt of Courts Act, 1970/71. The contempt petitioner is attempting to get a decree of specific performance as prayed for in the suit by filing the contempt petition and the sub applications. Even though the original injunction order passed by this Court was in respect of both `A' and `B' schedule properties, the said order had been modified on an application filed by M/s.A.R.Builders and after the modification it related to `B' schedule property alone. It has also been contended that the petitioner had not proved by relevant materials that the property in question has been leased out. Even though the plaintiff in the suit is Bharath Motors, represented by its Managing Director, R.Raghuraman, the contempt petition has been filed by Fibroflex India Private Limited. The petitioner has not been in a position to show as to how the change between the plaintiff and the petitioner is valid and in accordance with law. Since the plaint has not been amended, the petitioner cannot maintain the contempt petition in the present form, without getting an appropriate order from this Court. 11. In view of the rival contentions and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to punish the respondents for contempt of Court, as alleged in the contempt petition. It is seen that the contempt petition has been filed after a considerable length of time and even at this stage, the petitioner has not been in a position to show sufficient proof, by producing relevant materials, to prove that the premises in question has been leased out to third parties for rent. Unless such proof is shown, it cannot be held that the respondents had violated the order passed by this court, on 27.06.1996, and the undertaking given before this Court, as alleged by the petitioner. 12. It is always open to the petitioner to pursue his remedy through the civil suit pending before this Court in C.S.No.714 of 1995 to get the reliefs prayed for therein. Even if there are contradictions in the statements made by the respondents in the counter affidavits filed on their behalf, that, by itself, would not be sufficient to come to the conclusion that the respondents are guilty of contempt of Court, as alleged by the petitioner. Unless the petitioner is in a position to show in clear terms as to how the respondents had committed contempt of Court by wilfully disobeying the order of this Court, dated 27.06.1996, it cannot be held that the respondents had violated the order passed by this Court. 13. The power to punish a person or authority has to be exercised with sufficient care and caution. The power to punish for contempt of Courts is vested with the Court in order to maintain its dignity and its majesty. If the power is exercised without sufficient cause or reason, it would result in Tyranny of law, instead of Rule of Law. No doubt, blatant and wilful disobedience of the orders passed by this Court ought to be punished without any sympathy being shown towards those who are guilty of such violation. The power to punish for contempt of Court is to be tempered with judicial grace and magnanimity and it would not be proper to exercise such power in a casual condescending manner. However, in the present case, it cannot be said that there are sufficient grounds available for this Court to find the respondents guilty of Contempt of Court, as alleged by the petitioner. Since the petitioner has miserably failed in his attempt to do so, the present contempt petition stands closed. No costs. Index:Yes/No 29-04-2008 Internet:Yes/no csh M.JAICHANDREN,J. Csh Contempt Petition No.578 of 2003 -04-2008