IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 16.08.2010 CORAM THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN CONTEMPT APPEAL NOS. 1 & 2 OF 2010 AND M.P.NO.1 & 1 OF 2010 Cont.A. No.1 of 2010 Mansoor Alikhan ...Appellant/2nd Respondent in Cont. P. No.757 of 2007 Vs. 1. W.S.Seetharaman 2.V.K.John Appu John (died) 3.Premanayakam ...Respondents/Petitioner and respondents 1 and 3 Cont.P. No. 757 of 2007 Cont.A.No. 2 of 2010:- Mansoor Alikhan ...Appellant/ 2nd Respondent in Cont. P. No.474 of 2007 Vs. V.K. John Appu John (died) ... Respondent / Petitioner in Cont.P.No.474 of 2007 Prayer in both the Contempt Appeals : These contempt appeals are filed under Section 12 (1) of the Contempt of Courts Act, 1971, as against the judgment and order passed by the Learned single Judge of this Court made in Contempt Petition Nos.757 & 474 of 2007 dated 19.01.2009. For Appellants : Mr.Vijayanarayan in both the appeals Senior Counsel for Mr.A.R.Nixon For Respondent - II : Mr.Abraham Marks in Cont. Appeal.1/10 for M/s. King & Partridge and for Respondent in Cont. Appeal.2/10 https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT M.Sathyanarayanan.J., Both these appeals arise out of common order dated 19.01.2009, made in Contempt Petition Nos.474 and 757 of 2007. The appellant herein is arrayed as a respondent in Contempt Petition No.474 of 2007 as well as in Contempt Petition No.757 of 2007. 2. The appellant, aggrieved by the order of punishment and directions given in the impugned common order, had preferred these appeals. The facts, in brief, which are necessary for the disposal of these contempt appeals are as follows:- " (i) The Contempt Petition No.474 of 2007 was filed by V.K.John, son of Late K.Babu John. He is the plaintiff in C.S.No.423 of 1995. The Contempt Petition No. 757 of 2007 was filed by W.S.Seetharaman, who is arrayed as third defendant in the above said suit. The averments made in the affidavit filed in support of the above Contempt Petitions would disclose that the suit in C.S.No.423 of 1995 was filed against one Mr.Appu John, and his sister Mrs.Leelie Seetharaman, seeking partition of the Estate against V.K.John and Tmt.Leelie Seetharam. (ii) The plaintiff viz. V.K.John, pending disposal of the suit, taken out an application in O.A. No. 293 of 1995 praying for an order of ad interim injunction restraining the defendants, their men, servants or agents or anyone claiming through them from in any manner alienating/altering/demolishing the plaint 'A' schedule and B schedule properties. The said application came up for hearing on 22.07.1996 and a Single Bench of this Court has passed an order restraining the defendants from in any manner alienating/ altering/demolishing the plaint 'A' schedule and 'B' schedule properties, till the disposal of the suit. Subsequently, Appu John, who is arrayed as first defendant in the above said suit, filed an Application No.125 of 2004, praying for vacating the above said order of ad interim injunction. The Single Bench of this Court, vide order dated 12.02.2004, has taken into consideration the fact that the order of ad interim injunction was passed in the year 1996 and that the issue raised in the application to vacate ad interim injunction being a contentious issue in the suit itself, was of the opinion that no case is made out to vacate the order of ad injunction already been granted and hence, made the interim injunction absolute and directed the Registry to list the suit for final disposal before the port folio Judge on 23.02.2004. (iii) It is further averred in the affidavit filed in support of the above said Contempt Petitions that the appellant herein, who is arrayed as second contemnor, has filed a suit in O.S.No.1242 of 2007, on the file of the II Assistant City Civil Court, Chennai and https://hcservices.ecourts.gov.in/hcservices/ also sought for an order of ad interim injunction in I.A.No.3198 of 2007 restraining the defendants therein viz., V.K.John, W.S.Seetharaman and Premanayagam, from interfering with his peaceful possession and enjoyment of the suit property till the disposal of the suit. In the said application, the appellant herein averred that the suit property belongs to one Appu John, who has filed a suit for partition in C.S.No. 423 of 1995 on the file of this Court. Appu John, leased out the first floor of the suit property in favour of the appellant herein and on considering the fact that the appellant herein had paid a sum of Rs.2,00,000/- to him, it was also agreed that the interest due and payable by Appu John would be adjusted towards rent. An agreement was entered into between them to that effect on 01.12.2006 which was also registered. Appellant herein had obtained permission for using the properties for residential as well as non residential purposes and also undertook to look after the vacant site in the suit property. The appellant herein spent a sum of Rs.8,00,000/- for effecting repairs and since the second respondent therein viz., W.S.Seetharaman, threatened to dispossess him, he filed a suit as well as an Interlocutory Application. The said application was dismissed on 09.07.2007. Aggrieved by the same, the appellant herein preferred a Civil Miscellaneous Appeal before the Court of Principal Judge, City Civil Court, Chennai. The specific case of the applicants in the Contempt Petitions is that the act of Appu John, in leasing out the first floor of one of the item of the suit properties in favour of this appellant is willful and gross violation of the order dated 22.07.1996 made in O.A.No.293 of 1995 in C.S.No.423 of 1995, which was also made absolute on 12.02.2004". 3. It is also contended by the applicants in the Contempt Petitions that the appellant, who is arrayed as second respondent, even though was very well aware of the above said interim orders, had entered into a registered lease agreement with Appu John, and thereby, deprived the petitioners in the Contempt Petitions of their valuable rights. It is further averred that Appu John, had also, on an earlier occasion, flouted the interim orders passed by this Court, which was the subject matter of the Contempt Petitions and he was also punished. Therefore, the petitioners prayed for punishing the respondents for having committed Contempt of Court by violating the order dated 22.07.1996. 4. The petitioner in Contempt Petition No.757 of 2007, W.S.Seetharaman, who is arrayed as third defendant in his application for Contempt had also made out similar averments. 5. The appellant herein has filed his counter affidavit in both the Contempt Petitions. Apart from tendering unconditional apology, it was submitted that he has not committed any trespass and he had entered into possession by virtue of the registered sale deed executed by Appu John and his possession is neither litigious nor can https://hcservices.ecourts.gov.in/hcservices/ it be termed to be unlawful. It is further averred in the counter that on the date of grant of lease, the appellant was not at all aware of the interim orders passed by this Court in O.A.No.293 of 1995 in C.S.No.423 of 1995 and the factum of the above said orders have not been brought to his knowledge and therefore, the question of violation of the above said orders does not arise at all. Therefore, the appellant herein, who is arrayed as second respondent in the Contempt Petition Nos.757 & 474 of 2007, prayed for dismissal of the said petitions. 6. The Learned Judge has taken up both the Contempt Petitions together for final disposal and vide order dated 19.01.2009, found that the registered lease deed agreement entered into between Appu John and this appellant is a scheme devised by Appu John in collusion with this appellant to virtually alienate the property in the form of creation of a lease. The Learned Judge, on going through the contents of the lease deed agreement, found that the rent fixed was far below the reasonable rent for the first floor portion and the vacant land of the suit 'A' schedule property and the said arrangement would show that the appellant/second contemnor also did not have knowledge of the order passed by this Court. The Learned Judge for the said reasons found that the appellant/second contemnor has chosen to enter into a lease agreement with the first contemnor viz., Appu John, with the knowledge of the order passed by this Court in O.A.No.293 of 1995 in C.S.No.423 of 1995 and thus abated the act of contempt committed by the first contemnor. 7. The Learned Judge found that the contemnors 2 and 3 viz., second contemnor/appellant and third contemnor guilty of contempt and convicted them accordingly, by imposing a fine of Rs.1,000/- on each one of them to be paid within a period of two weeks from the date of the order viz. 19.01.2009 and directed them to undergo one month civil imprisonment, in the event of default in payment of fine. The Learned Judge, further declared that the lease agreement deed dated 1.12.2006, entered into between the first contemnor viz., Appu John and this appellant as also the registered power of attorney dated 21.10.2005 as null and void. The Learned Judge further directed to hand over the respective possession of the suit 'A' schedule property to either of the parties to the suit or to the legal representatives of the deceased first defendant /first contemnor, as their continued possession shall amount to continuing the act of contempt and the same shall be done within a period of four weeks. The Learned Judge also directed that in event of any claim made by any person other than the petitioners in the contempt petitions, it is open to the petitioners in the Contempt Petitions to move necessary application for appointment of a party receiver other than the third party. 8. Aggrieved by the above said impugned common orders, the contemnor/appellant has preferred these appeals. https://hcservices.ecourts.gov.in/hcservices/ 9. Heard the submissions of Mr.Vijay Narayan, the learned Senior Counsel for Mr.A.K.Nixon and Mr. Abraham Marks, the learned counsel for the second respondent. 10. It is the first and foremost submission of the learned Senior Counsel that the appellant/second contemnor was not at all aware of the order of ad interim injunction dated 22.07.1996 passed in O.A.No.293 of 1995 in C.S.No.423 of 1995 and consequently, he could not be proceeded under the provisions of the Contempt of Court. It is also submitted by the learned Senior Counsel for the petitioner that the earlier orders passed in the Contempt Petition No.632 of 2003 have no relevance to the fact of the present case. As regards the findings recorded by the Learned Judge that the lease deed entered into between Appu John and this petitioner is a scheme devised to alienate the property, the learned Senior Counsel would submit that the findings are purely based on surmises and conjectures and the contempt proceedings, being the nature of quasi-criminal proceedings, such a kind of finding cannot be rendered. It is also submitted that the Learned Judge has misinterpreted the terms of the lease deed entered into between Appu John and the appellant and traversed beyond the main scope of the Contempt Petitions and ordered certain directions such as cancellation of the deed of lease and the power of attorney and handing over possession to the legal representatives of the first contemnor and such a kind of directions cannot be issued in the applications for contempt. The learned counsel for the appellant, in support of his submissions, has placed reliance upon the judgment of the Hon'ble Supreme Court reported in 2004 13 SCC 614 (DDA Vs. Krishnan Lal Nandrayog ) and also the meaning of the word "alienation" by relying upon P.Ramanatha Aiyar's The Law Lexicon second Edition 1997. 11. Per contra, Mr. Abraham Marks, the learned counsel for the second respondent would contend that the first contemnor viz., Appu John and this appellant/second contemnor had devised a clever move by entering into registered lease deed to deprive the parties to the suit their valuable rights in the suit properties. It is further submitted that the Learned Judge, on going through the contents of the lease deed, found that the first contemnor, after receiving a sum of Rs.2,00,000/- from the appellant/second contemnor, had leased out the first floor of the 'A' schedule property at free of rent and also agreed to repay the sum without interest at the time of handing over the possession to the appellant/second contemnor and that there is no specific clause in the lease deed agreement that the interest accrued on the deposited amount shall be treated as rent. The learned counsel for the second respondent would further submit that the Learned Judge also found that the rent as mentioned in the lease deed, is far below the reasonable rent for the first floor portion and the vacant land of the suit 'A' schedule property. As regards the knowledge of the appellant/second contemnor about the interim orders passed by this Court on 22.07.1996 in O.A.No.293 of 1995 in https://hcservices.ecourts.gov.in/hcservices/ C.S.No.423 of 1995, the learned counsel for the second respondent has submitted that the overall conduct of the appellant/second contemnor would clearly disclose that he was very well aware of the above said orders and in spite of that, he has chosen to enter into an agreement of lease with the first contemnor and not stopping with that, he has also filed a suit in O.S.No.1242 of 2007 against the applicants in the Contempt Applications and one another for ad interim injunction, restraining them from interfering with the peaceful possession and enjoyment of the suit property. It is also submitted by the learned counsel for the second respondent that the Court in its exercise of Contempt jurisdiction, has got every power and also a duty is cast upon the Court to set right the wrong done in disobedience of a restraint order or an injunction and not to allow the perpetuation of the wrong doing. The Learned Judge, in exercise of such power, had rightly canceled the deed of lease and power of attorney and directed the appellant / second contemnor to hand over the possession of the property in favour of the legal representatives of the first contemnor. The learned counsel for the second respondent in support of his submission, has placed reliance upon the judgment of the Hon'ble Supreme Court of India reported in 2007 Volume II SCC 374 (All Bengal Excise Licensees' Association Vs. Raghabendra Singh and others). 12.This Court has considered the submissions made by the Learned Counsel for the appellant and the learned Senior Counsel for the second respondent and also perused the materials available on record in the form of typed set of documents and also considered the decisions cited by them. 13. In the decision reported in 1995 (3) SCC 306 in (Suresh Vs. Imran Khan) Hon'ble Court of India has observed as follows:- " ... the proceedings in contempt are in the nature of quasi – criminal proceedings and it must be shown that the litigant in defiance or disobedience of the Court's order proceeded to do any act which was in violation thereof. Unless the litigant is aware of a prohibitory order made against him by the Court, there can be no desire or intention on his part to flout the Court's order. Therefore, unless it is shown that, the litigant was made aware of the order served on his lawyer, it may be possible to hold that despite the knowledge of the order, he willfully decided to commit a breach of the order by acting contrary thereto." A Division Bench of this Court in a judgment reported in 2003 1 CTC 397 [Searle (India) Limited, rep. by its President Dr.K.K.Maheswari Vs. M.A.Masjid] has considered the above said decision has held as follows:- " A litigant is not to be taken by surprise as https://hcservices.ecourts.gov.in/hcservices/ to the conduct that is required of him, in the absence of clear and specific direction in an order duly made by the Court. When the plaintiff applies for an injunction, and the Court makes an order granting ex parte injunction for a specific period and thereafter, continuing the injunction for a further specified period, land does not renew it at the end of that period, the opposite party is entitled to act on the basis that he is no longer subject to the restraint, unless such opposite party had undertaken acting by himself or through counsel that it would treat the injunction as continued to be in force, thereby making a further order of the Court unnecessary, or the Court had directed orally or otherwise that the parties should not act contrary to the injunction that had been issued earlier for any further period." On considering the above said decision, it is clear that the contempt jurisdiction cannot be used as a "legal thumb screw " by unscrupulous litigants to compel their opponent to perform or refrain from performing the act which the opponent is otherwise is entitled to perform or refrain from performing. 14. In Sushila Raje Holkar Vs. Anil Kak (Retd.) reported in 2008 (7)Scale 484, it was held that, " A proceeding under the Contempt of Courts Act has a serious consequence. Whether the alleged contemnor has willfully committed breach of the order passed by a competent court of law or not having regard to the civil/evil consequences ensuing therefor require strict scrutiny. For the said purpose, it may be permissible to read the order of the Court in its entirety. The effect and purport of the order should be taken into consideration. Whereas, the Court shall always zealously enforce its order but a mere technicality should not be a ground to punish the contempt. A proceeding for contempt should be initiated with utmost reservation. It should be exercised with due care and caution. The power of the Court in imposing punishment for contempt of the Court is not an uncontrolled or unlimited power. It is a controlled power and restrictive in nature. " It has been further held that the contemnor may be punished only when a clear case for contumacious conduct has been made out. 15. This Court by keeping the above principles in mind, had analyzed the facts of this case as well as the ratio laid down in the https://hcservices.ecourts.gov.in/hcservices/ decisions relied upon by the respective counsel appearing for the parties. The questions that arise for consideration in these appeals are: " 1. Whether the appellant/second contemnor had willfully and deliberately disobeyed the order dated 22.09.1996 in O.A.No. 293 of 1995 in C.S.No.423 of 1995? and 2. Whether the Learned Judge, while disposing of the Contempt Applications and in the facts and circumstances of the case, can pass orders for further directions? " 16. Question No.1. It is useful to extract the prayer made in O.A.No.293 of 1995 in C.S.No.423 of 1995 filed by Mr.V.K.John, plaintiff, who is the applicant in the Contempt Petition No.474 of 2007, viz. " Original Application praying that this Court be pleased to pass an order of Interim Injunction, restraining the Defendants, their men, servants or agents or anyone claiming through them from in any manner alienating/altering and demolishing the properties mentioned hereunder." The Single Bench of this Court vide order dated 22.07.1996 made in the above said applications has passed the following order:- "That (1) Appu John and (2) Leelie Seetharaman, the defendants/Respondents herein, their agents, servants and representatives be and are hereby restrained by an injunction, till the disposal of the suit from in any manner alienating, altering and demolishing the property morefully set out in the Schedule hereunder; ii) That notice of this Application returnable on or before 02.09.1996, be served on the Respondents herein and iii) That further hearing of this Application do stand adjourned to the said 02.09.1996." Para 1 of the above said order states that the defendants viz., Appu John and Leelie Seetharaman, their agents, servants and representatives are restrained by an order of injunction from in any manner alienating/altering and demolishing the suit schedule properties, till the disposal of the suit and the applications were directed to be called on 02.09.1996. 17. The meaning of the word "alienation" is stated in P.Ramanatha Aiyer's The Law Lexicon 2nd Edition 1997 and the same is extracted below:- " the word "alienation" means transfer of ownership in favour of another and it generally applies to absolute conveyance of immovable property." https://hcservices.ecourts.gov.in/hcservices/ In the case on hand, the first contemnor viz., Appu John had entered into a Registered lease deed dated 01.12.2006 with the appellant/ second contemnor in respect of the first floor of the 'A' schedule property and also the vacant land by receiving a sum of Rs.2,00,000/- and agreeing to repay the same without interest on transfer of vacant possession by the appellant/second contemnor. 18. A perusal of the registered lease deed dated 01.12.2006, which is in the typed set of documents filed in support of these appeals would disclose that the lease period is for a period of one year i.e., from 01.12.2006 and on expiry of the lease period, the Lessor viz., Appu John agrees to repay the sum of Rs.2,00,000/- to the Lessee viz., Mansooralikhan, the appellant herein, at free of interest, and in future, if both the parties agree, the lease may be extended for another period, as may be decided at that time. The suit property, which is the subject matter of said lease deed is entire first floor portion and the terrace of the building bearing Old No.23, New.No.49 of Nuggambakkam, High Road, Chennai – 600 034., and it was leased in favour of the appellant herein for Residential – cum- Office purpose. 19. A perusal of the above said lease deed, prima facie, discloses the lease, in the light of the meaning of the word "alienation" in P.Ramanatha Aiyer's The Law Lexicon 2nd Edition 1997, executed by Appu John/ first contemnor to appellant/ second contemnor, cannot be termed as alienation. The Learned Author would state that the word "alienation" imparts an actual transfer of title, and "alienation" means a transfer of ownership and "alienee" means a person to whom ownership is transferred. 20. In the opinion of this Court, by any stretch of imagination, the lease deed executed between the first contemnor and appellant/second contemnor cannot be termed as a documentary evidencing conveyance of the above said property. 21. This Court is rendering the said findings based on the terms of the lease deed and the said finding is the subject to further evidence to be let in by the parties in the trial in O.A.No.293 of 1995 in C.S.No.423 of 1995. 22. Next, we have to find out whether the appellant/ second contemnor at the time of entering into the above said lease deed, was aware of the interim orders dated 22.07.1996 passed by the Single Bench of this Court in O.A.No.293 of 1995 in C.S.No.423 of 1995? The appellant/ second contemnor apprehending dispossession in the hands of the V.K.John, [plaintiff], W.S.Seetharaman, the third defendant and one Premanayagam, has filed in O.S.No.1242 of 2007 on the file of the City Civil Court, Chennai and prayed for an order of ad interim injunction, restraining the defendants therein from interfering with https://hcservices.ecourts.gov.in/hcservices/ his peaceful possession and enjoyment of the suit property. A perusal of the above said plaint would disclose that no averment is available with regard to the above said order of interim injunction dated 22.07.1996, passed by this Court. The appellant/ second contemnor pending disposal of the O.S.No.1242 of 2007 filed an interlocutory application in I.A.No.3198 of 2007 in O.S.No.1242 of 2007, for an order of ad interim injunction and the Learned Judge has dismissed the said application holding that since the prayer made in O.A.No.293 of 1995 is to restrain the alienating/altering/demolishing in any manner the lease between the Appu John and this petitioner, it is a kind of alienation. The appellant/ second contemnor aggrieved by the said order, also preferred a Civil Miscellaneous Appeal. It is the specific case of the appellant/ second contemnor in the counter affidavit that he was not aware of the interim order passed in O.A.No.293 of