IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Contempt Appeal No.13 of 2002 and C.M.P.No.17736 of 2002 1. Mrs. Shobhana Radhakrishnan 2. Mrs. Mohana Nair .. Appellants/Respondents -vs- Mr.R. Krishnamoorthy .. Respondent/Petitioner Contempt Appeal under Section 19(1) of the Contempt of Courts Act, 1971 against the order dated 30.10.2002 made in Contempt Application No.481 of 2002 by this Court. For Appellant :: Mr.Sriram Panch Senior Counsel for Ms. Aparna Vasu For Respondent :: Mr.R. Krishnasway Senior Counsel for Mr. Srinath Sridevan JUDGMENT D.MURUGESAN, J. 1. The Contempt Appeal is directed against the order dated 30.12.2002 passed in Contempt Application No.481 of 2002. 2. A brief resume of the facts leading to the present Contempt Appeal may be stated as follows: i) The parties are referred to as arrayed in the Contempt Appeal. The respondent filed a suit in C.S.No.733 of 1997 before this Court and pending the said suit he also filed an application No.791 of 1997 seeking for an order restraining both the appellants https://hcservices.ecourts.gov.in/hcservices/ herein, their agents, their men and their servants from interfering with the free access to the terrace described in 'B' Schedule to the plaint. On 08.01.1998, learned single Judge passed the following Order: ''Learned counsel for the Respondents 1 and 2 given an undertaking that his client will be available in the house in all reasonable hours and the keys to open the grill-door leading to the terrace is always kept by him and in case of any requirement, he would go and open the door for the benefit of the other tenants. It is also stated that in case he leaves the place for any reason, he would see to it that the keys are handed over to the watchman who is there engaged by all the flat owners. The key will be given for attending to the repairs or break-down in the lift or for access to overhead tank and also for adjusting the television antennas. With this undertaking, the matter is adjourned for hearing after four weeks.'' ii) By subsequent Order dated 09.11.1998, the learned Judge modified the above order and the said order reads as follows: “As per the earlier order passed on 08.01.1998, an arrangement has come into effect and both sides agree that the matter is being dealt with smoothly without any complication. The respondents 1 and 2 have undertaken to handover the keys to the watchman whenever they are not available and this is being done now. The learned counsel for the respondents 1 and 2 now state that they have been handing over the keys to the Secretary of the Flat Owners' Association of which the applicant is a member and this arrangement may be continued. Both sides agree and therefore, for till the disposal of the suit, this arrangement will continue and this application is closed.” iii) When the respondent complained to the Court as to the breach of undertaking given by the Appellants, this Court, on 26.04.2000, had ordered as follows: “when the matter is brought before this Court as “Being mentioned”, it is represented by https://hcservices.ecourts.gov.in/hcservices/ the counsel for the plaintiff/applicant that the earlier order passed by this Court permitting the Plaintiff/Applicant to use the terrace, has not been complied with by Defendants/Respondents. Now, the counsel appearing for the Respondents 1 and 2 would undertake that he would give proper advice to the party to comply with the order referred to above. Post the matter after vacation.” iv) The respondent approached this Court by way of Contempt Application No.481 of 2002 on the ground that in spite of the undertakings, the appellants did no allow the access to the respondent to the terrace for the purpose of effecting repairs. By Order dated 30.10.2002, learned Judge after holding that the appellants herein did not honour the undertaking given before this Court also found that there had been a breach of undertaking. The learned Judge had also noted the submission made on behalf of the appellants that “there will have no objection if the respondent wanted to effect repairs at his own cost and no right should be deemed to be conferred on him, merely because he is permitted to effect the repairs” and let the appellants with warning without imposing any other punishment. 3. Aggrieved by the Order of warning, the present contempt appeal is filed. Mr. Sriram Panchu, learned Senior Counsel would submit that there had been no breach of undertaking as could be seen from the various communications exchanged between the appellants and the respondents. He would submit that initially by Order dated 08.01.1998, this Court had recorded the undertaking given by the appellants that they will be available in the house in all reasonable hours and the keys to open the grill door leading to the terrace is always kept by him and in case he leaves the place for any reason, the keys will be handed over to the watchman for attending the repairs or break-down in the lift or for access to overhead tank and also for adjusting the television antennas. The undertaking relates to handing over of the keys to the watchman was modified and the appellants undertook to handover the keys to the Secretary of the association of the flat owners of which the respondent is also a member. When the respondent had issued notice on 09.10.2001 alleging the breach of undertaking and the refusal of the appellants to handover the keys to open the terrace to have access, by a reply dated 15.10.2001 the appellants had denied such allegations of violation of undertaking given before this Court. By a subsequent letter dated 11.06.2002 addressed to the appellants on behalf of the respondent a request was made by the respondent to https://hcservices.ecourts.gov.in/hcservices/ handover the keys of the wing where the respondent resides to carry out the repair and to do necessary precaution before the summer rain starts as there had been some cracks and water seepage in the roof portion. In response a letter dated 26.06.2002 from the appellants counsel it was informed that such repairs can be carried on by the appellants themselves on getting an expert Engineer's estimate. 4. Learned counsel therefore submitted that there had been no intention on the part of the appellants to disobey the undertaking given before this Court and in any case there was no willful disobedience of the undertaking. Therefore, learned counsel submitted that the finding that the appellant had breached the undertaking is liable to be set aside and consequently the warning also to be set aside. 5. On the other hand, Mr.R. Krishnaswamy, learned Senior Counsel would submit that the appeal itself is not maintainable under Section 19(1) of Contempt of Courts Act 1971, since, “a warning” cannot be considered to be a punishment. In support of the above, learned Senior Counsel relied on the Judgment of the Apex Court in D.N. Taneja vs. Bhajan Lal reported in (1988) 3 Supreme Court Cases 26. 6. In so far as the merit is concerned the learned Senior Counsel would submit that in spite of repeated request to hand over the keys to have access to terrace portion as well as to carry out the repairs, the appellants had refused to handover the keys on the one pretext or the other and thereby disobeyed the undertaking given before the Court. He would also submit that letter dated 26.06.2002 said to have been issued on behalf of the appellants was not served on the respondent and in the absence of any such communication the appellants cannot claim now that they had not disobeyed the undertaking given before the Court. 7. We carefully considered the rival contentions. In so far as the objections raised by the learned Senior Counsel for the respondent as to the maintainability of the appeal, it is to be noted that in terms of section 12 of Contempt of Courts Act, 1971, this court could impose a punishment on the person who is found guilty of contempt of Court including disobedience of undertaking. An appeal can be preferred under Section 19(1)(a) of the Contempts of Courts Act, 1971, against the order or decision of a single Judge, to a Bench of not less than two Judges of the Court. The Judgment of the Apex Court reported in [(1988) 3 Supreme Court Cases 26 ] relates to imposition of punishment for contempt by the https://hcservices.ecourts.gov.in/hcservices/ High Court in exercise of its power as conferred on it by Article 215 of the Constitution of India. While considering such power the Apex Court in paragraph 8 has held as follows: “8. The right of appeal will be available under sub-section (1) of section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish the contempt. In this connection, it is pertinent to refer to the provisions of Article 215 of the Constitution which provides that every High Court shall be a court of record and shall have all powers of such a Court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punich for contempt from Article 215 of the constitution. As had been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and in our opinion rightly, that the High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Articles 215 of the Constitution.” 8. The decision of the Apex Court is that an appeal shall also lie to a Division Bench under Section 19(1) of the Contempt of Courts Act 1971, questioning the Order of punishment passed in exercise of powers under Article 215 of the Constitution of India. As a necessary corollary it must be also understood that the power of the court to entertain under Section 19 of the Act the appeal cannot be considered to be excluded. In case, the order of punishment is not imposed in exercise of the power under Article 215 of the Constitution of India, the power vested in the High Court under Section 19(1) of the Contempt of Courts Act, 1971, against a decision or an order passed by the High Court in exercise of the power under Section 12 of the Contempt of Court Act 1971 can https://hcservices.ecourts.gov.in/hcservices/ also be invoked. 9. The law of contempt has developed as a part of the common law. The power to punish for its own contempt is an inherent power of this court as it is a court of record and such power is an essential auxiliary to the administration of justice. The power to institute a proceedings for contempt seems to be and not outside the sweep of Article 215 of the Constitution of India. Article 215 of the constitution does not define or enumerate all the powers which the High Court enjoys as a court of records as it only refer to the power of the High Court to punish the contempt of itself while it recognises that there are also other powers available to the High Court as a court of record. 10. It is argued that unless the High Court in exercise of the power under Article 215 of the Constitution of India imposes of punishments, an appeal would be outside the provisions of Section19 (1)(a) of the Act. Therefore the question arises as to whether, when the High Court has not invoked the power under Article 215 of the Constitution of India and imposes any punishment, an appeal is maintainable under Section 19(1)(a) of the Act or not. To be precise as in this case whether an appeal is maintainable as against a warning which, according to the counsel for the respondent is not a punishment. 11. Section 2(a) of the Act defines that the "Contempt of Court" means Civil contempt or Criminal contempt. Civil Contempt is willful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a Court. Criminal contempt is defined in Section 2(c) of the Act. Section 12 of the Act relating to the imposition of punishment which reads as follows: "12(1). Save as ortherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation – An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. https://hcservices.ecourts.gov.in/hcservices/ 2. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. 3. Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit." 12. An appeal is provided under Section 19(1)of the Act and the same reads as under : "19(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt - (a) where the order or decision is that of a Single Judge to a bench of not less than two judges of the Court; (b) Where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the court of Judicial Commissioner in any union territory, such appeal shall lie to the Supreme Court." 13. Whenever a decision or order culminated into one of punishment made under Section 12 of the Act, an appeal is maintainable under Section19(1)(a) of the Act. Similarly when this Court imposes a punishment under Article 215 of the Constitution of India, an appeal is maintainable to a bench of not less than two Judges. Section 19(1) does not say that an appeal lies only punishment for contempt but uses rather a wider expression that an appeal lies from any order or decision passed in exercise of the jurisdiction to punish for contempt. The expression "any order or decision" in this connection purports to connote prima facie a variety of orders or decisions that may be passed by the court in exercise of its jurisdiction to punish for contempt. Restricted interpretation to the words "order or decision" confining only to https://hcservices.ecourts.gov.in/hcservices/ the punishment will be tantamount to delete such words or expressions used in Section 19 of the Act. The expression 'order of decision' in Sub-Section (a) of Section 19 also includes something other than punishment is it appears from a reading of sub-section (2)(a) of section 19 which provides that pending any appeal the appellant court may order that "the execution of the punishment or order appeal against be suspended". The section does not restricts an appeal against a punishment since the section includes "or order" as well. If the order of punishment is alone made appealable, there would have been no necessity of using the words 'or order' in the expression 'the execution of the punishment or order appealed against' as used in sub-section 2(a) of Section 19. 14. On a plain reading of Section 19 fo the Act provides that an appeal shall lie from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. The words "any order" should be read with the expression "decision or order" used in sub-section (1) of Section 19, which the High Court passes in exercise of its jurisdiction to punish for contempt. "Any order" is not independent of the expression "decision" and they have been put in an alternative form saying "order" or "decision". A decision or order holding the contemnor guilty of either an order of the Court or breach of undertaking could be questioned by way of appeal under Section 19(1) of the Act. Of course when a decision taken by the Court to reject the contempt petition, appeal is not maintainable. Such law has been laid on the principle that the contempt proceedings are between the Court and the Contemnor and the complainant stands only as a person to bring to the notice of the Court, the alleged contempt. Though warning is not a punishment if a restricted meaning is given to the order and to hold that the appeal is not maintainable against a warning would deviate the very right of the person since such an order of warning may affect adversely or cause prejudice to the contemnor. 15. A reading of the order of the learned Judge shows that the appellants were found guilty of the contempt as the learned Judge has observed, “I am of the view that the respondents 1 and 2 have not honoured the undertaking which had been given by them and therefore there had been a breach of undertaking which had culminated in the order of the Court.” 16. A decision has been taken by this Court holding that https://hcservices.ecourts.gov.in/hcservices/ the appellants have committed the contempt. Only on such a decision, the learned Judge having regard to the submissions made by the learned counsel for the appellants herein that they would have no objection if the respondent wanted to effect repairs at his own and the respondent will be permitted to effect the repairs, the learned Judge did not impose any other punishment except warning. Warning is not specifically enumerated as a punishment under Section 12 of the Contempt of Courts Act, 1971. Nevertheless, when such warning may also cause serious prejudice or adversely affect the contemnor, an order imposing warning can also questioned by preferring appeal since such warning is ordered only after holding the appellant guilty of contempt. Hence we hold that the present appeal is maintainable. 17. Coming to the merits, it is true, that when the application was made before this Court on behalf of the respondent, an undertaking was given by the appellants on 8.1.98 to the effect that they will make available in all reasonable hours and the keys to open the grill-door leading to the terrace is always kept by him and case of any requirement he would go and open the door for the benefit of the other tenants and further undertake that the key will be given for attending to the repairs or break-down in the lift or for access to overhead tank and also for adjusting the television antennas. This undertaking was subsequently modified on 9.11.1998 that the keys would be handed over to the Secretary of the flat owners Association, wherein the respondent was also a member. Even before the second order came to be passed , it appears that on the date of first order was passed, a letter was addressed to the Secretary of the Flats owner's Association on behalf of the appellants expressed their wish to hand over the terrace keys for safe keeping to the Secretary of the flat owners Association. In the said communication it has been mentioned that the keys can be given to the flat owners permitting them to access the terrace for the specific purpose of attending water tank, Lift repairs and adjusting television antennas if required. The said notice was communicated to all the flat owners. 18. When it was reported before this Court that the undertaking was not complied with, learned counsel for the appellants submitted that he would undertake to give proper advise to the parties to comply with the order, subsequent order was passed on 26.4.2000. Pursuant to the said order, on 06.05.2001 the appellants had also informed the respondents that the keys have been left with the watchman for specific use of the respondent to open the terrace and for free access. There is no dispute till this stage. It is the grievance of the respondent that inspite of https://hcservices.ecourts.gov.in/hcservices/ the above undertaking as well as the communication, the appellants had not given the keys and permitted free access. The letter of the Advocate for the respondent dated 11.6.2002 is strongly relied upon by the respondent wherein it was mentioned that due to some cracks, water seepage developed he required the key. To this the appellants had replied through their Advocate dated 26.06.2002 that the repairs can be carried on by the appellants at their expense on getting an expert Engineer's estimate. The respondent has disputed the service of such a letter. On the other hand the appellants claimed that they had sent the letter but unable to produce the acknowledgment. It is true, the appellants have not produced the records to show that such letter was in fact served on the respondent. Nevertheless for the purpose of contempt application. when there is a dispute, merely because the appellants could not produce the acknowledgment for service of such letter and when such letter was addressed by the counsel appearing for the appellant it cannot be presumed the the appellants willfully created such a letter only for the purpose of defending the case. 19. For all the above reasons, we are of the considered view that the appellants have not disobeyed the undertaking given before this Court and the decision that they have not honoured the undertaking is liable to be set aside. 20. Accordingly the order passed in Contempt Application No.481 of 2002 dated 30.10.2002 is set aside and the contempt appeal is allowed. Consequently, connected Miscellaneous Petition is closed. ggs Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Sub Assistant Registrar, Original Side,Madras.104. • One cc to Ms. Aparna Vasu, Advocate SR 1315. VRK (co) sg 24/01/08 Judgement in Contempt Appeal No.13 of 2002 10.01.2008 https://hcservices.ecourts.gov.in/hcservices/