Kamatchi v. M.G.Venkatesan New No.33, Old No.14 Nadu Street Mylapore, Chennai-600 004

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.4.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENContempt Petition No.26 of 2003Kamatchi .. Petitionervs. M.G.Venkatesan New No.33, Old No.14Nadu StreetMylapore, Chennai-600 004 .. Respondent The Contempt Petition has been filed under Section 10 & 12 of TheContempt of Courts Act, 70/71, to punish the respondent for havingcommitted contempt of Court by disobeying the decree, dated 12.7.2002passed in S.A.No.751 of 1990. For petitioner : Mr.S.V.Jayaraman Senior Advocate for Mr.J.R.K.Bhavanantham For respondent : Dr.A.E.Chelliah Senior Advocate for Mr.C.Vasanthakumari Chelliah O R D E RThis contempt petition has been filed praying that this Court maybe pleased to punish the respondent for having committed contempt ofCourt by disobeying the decree, dated 12.7.2002, passed in S.A.No.751of 1990. 2. The petitioner has stated that the premises bearing old No.15,New Door No.44, Nadu Street, Mylapore, Chennai, had originallybelonged to her father Govindaraja Mudaliar. He had executed aregistered Will, dated 1.7.1966, bequeathing the front portion of thesaid premises in favour of the respondent granting a life estate infavour of his wife Jayammal in the rear portion and absolute estatein favour of the male issues of the first son M.Munusami. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner has further stated that the petitioner's fatherhad executed a Codicil, dated 1.7.1971. As per the Codicil, theabsolute estate in the rear portion had been bequeathed in favour ofhis daughter Vijayalakshmi and the petitioner, after the life time ofJayammal. The entire back portion inclusive of the vacant portionmeasuring 40 feet north to south and 24 feet east to west, togetherwith the drainage and 4 feet lane on the east of the property hadbeen bequeathed in favour of Jayammal, for her life. The rear portionmeasuring 40 feet north to south and 24 feet east to west, togetherwith the entire drainage and 4 feet lane on the east of the property,the entire drainage and drainage chamber situated in the frontveranda and electric installation, along with the latrine situated inthe front had been bequeathed to the petitioner's mother, for a lifetime, as per the Codicil, dated 1.7.1971 and the same has beenbequeathed in favour of the petitioner's sister and the petitioner,absolutely. The petitioner's sister had executed a release deed inrespect of her half share in the rear portion of the said property infavour of the petitioner. The petitioner is entitled to the entirerear portion together with the 4' feet lane leading to the rearportion, along with the drainage, electricity connection, etc. 4. The petitioner has further stated that a letter ofadministration annexed with the Will, dated 1.7.1966, in Exhibit A.1and the Codicil, dated 1.7.1971, in Exhibit A.2 was granted by thisCourt. However, the respondent had high handedly and unauthorisedlymade an opening and fixed a door way, in the front portion bequeathedto him, opening into the 4 feet lane inspite of the protests ofJayammal. Further, instead of constructing the staircase and latrinein the portion bequeathed to him, he had constructed the same overthe lane. The staircase has been constructed in such a manner that ithad obstructed the proper usage of the 4 feet lane. Further, therespondent has been letting out the drainage water in the passageway. In such circumstances, the petitioner had filed a suit inO.S.No.7218 of 1984, on the file of the V Assistant Judge, City CivilCourt, Chennai, praying for the relief of declaration, declaring thatthe petitioner is absolutely entitled to the vacant site morefullydescribed in the schedule and shown in red colour in the plan and todeclare that the 4 feet lane situated on the east of the property tobe belonging to the petitioner absolutely and to direct therespondent to deliver the possession of the same and to direct therespondent to pay a sum of Rs.50/- p.m. towards damages for the useand occupation and for a permanent injunction restraining therespondent from interfering with the peaceful possession of thevacant site by the petitioner and to declare that the drainagerunning through the 4 feet lane belongs to the petitioner and for amandatory injunction directing the respondent to close down the doorway situated on the eastern wall allotted to the respondent, etc. https://hcservices.ecourts.gov.in/hcservices/

5. The petitioner has further stated that the trial Court haddismissed the suit. Therefore, the petitioner has filed an appeal inA.S.No.46 of 1989, on the file of the IV Additional Judge, City CivilCourt, Chennai. The said appeal was partly allowed granting adeclaration in respect of the vacant site measuring 8 feet x 25 feeton the rear side and had granted relief of permanent injunction inrespect of the said site. Therefore, the petitioner had filed thesecond appeal before this Court in S.A.No.751 of 1990. 6. This Court, had passed a decree, dated 12.7.2002, which is asfollows:"1. that the plaintiff be and hereby isgranted the relief of declaration that she isentitled to the vacant site morefully described inthe schedule and a consequential permanentinjunction.2. that the plaintiff be and hereby is alsoentitled to get a declaration that the 4' lanebelonging to her exclusively.3. that the plaintiff be and hereby is alsogranted the relief of mandatory injunctiondirecting the 1st defendant to close down the doorway situated on the eastern wall opening into the4' lane and to remove the bath room, stair caseand other coverings put up over the 4' lane in aperiod of three months. 4. that in other respects the suit be andhereby is dismissed.5. that there will be no order as to costs inthis second appeal." 7. The petitioner has submitted that inspite of the decree passedby this Court, on 12.7.2002, the respondent has not implemented thesame. Thus, he has committed contempt of Court by wilfully disobeyingthe said decree, dated 12.7.2002.8. It was submitted on behalf of the respondent in the contemptpetition that the decree was passed by this Court, on 12.7.2002, inthe second appeal No.751 of 1990. The said decree had been madeready, on 29.7.2002. As it was felt by the respondent that they werecertain ambiguities in the judgment and errors apparent on the faceof the record, a review application had been filed, on 28.10.2002. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the contempt notice issued by the petitioner had beenreceived by the respondent. Since there was a delay in filing thereview application, a petition had been filed to condone the delay.The delay in filing the review application had been condone by thisCourt. Thereafter, the review application had been admitted by thisCourt and notice had been ordered in the Interlocutory Applicationsfiled by the petitioner, praying for an order of interim stay, forappointment of an Advocate Commissioner and for letting inadditional documentary evidence. 9. The respondent had filed a common counter affidavit only inthe month of January, 2008. Since the three months time, granted bythis Court for implementing the decree, would commence only from25.10.2002, when the respondent had received the copy of the judgmentand decree from his counsel, the time granted by this Court would betill 24.1.2003. However, the review application had been filed, on28.10.2002. In such circumstances, the respondent had not committedcontempt of Court as there was no wilful disobedience of the judgmentand decree of this Court, dated 12.7.2002, made in S.A.No.751 of1990. The respondent had also tendered his unconditional apology, ifthis Court finds that the respondent had committed contempt of Court,as alleged by the petitioner. 10. The learned counsel appearing for the petitioner hadsubmitted that the filing of the review application by the respondentis immaterial. The respondent has committed contempt of Court bywilfully disobeying the decree of this Court, dated 12.7.2002, as hehad not removed the overhanging toilet and stair case built over the4 feet lane, within the period 3 months stipulated by this Court,commencing from the date of the decree. Since the judgment waspronounced in the open Court, the respondent cannot justify hismistake by contending that he had obtained a copy of the judgment anddecree from his counsel only, on 25.10.2002. The review applicationis frivolous and vexatious. Even otherwise, the pendency of theReview Application would not cure the illegal act committed by therespondent. 11. In view of the submissions made by the learned counselsappearing for the petitioner as well as the respondent and in view ofthe records available, this Court is of the considered view that thepetitioner has not shown sufficient cause or reason for this Court topunish the respondent for contempt of Court, as alleged in thecontempt petition. It is clear that the respondent had filed a reviewapplication in Review Application No.89 of 2003, on 28.10.2002,raising various grounds for the review of the judgment and decreepassed by this Court, on 12.7.2002, in the second appeal No.751 of1990. Further, the learned counsel appearing for the respondent isready and willing to demolish the offending structures, if this Court https://hcservices.ecourts.gov.in/hcservices/ so orders, while disposing of the review application. The respondenthas also tendered his unconditional apology in case this Court findsthat he has committed contempt of Court by some act or omission. 12. Further, it is seen that the dispute is between the siblingsnamely, the sister and the brother and serious attempts had been madeto arrive at an amicable settlement. The decree of this Court, dated12.7.2002, made in S.A.No.751 of 1990, is an executable decree andtherefore, it is open to the petitioner to execute the same in themanner known to law. Hence, the contempt petition stands closed.Consequently, connected Sub Application No.17 of 2003 is also closed.No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Contempt Petition No.26 of 2003MRD {CO}TP/13.6.08.