W.S.Seetharam v. V.K.John

2committed contempt of court by flouting the orders ofinjunction dated 22.07.1996 made in A.No.293 of 1995 inC.S.No.423 of 1995.For Petitioner :M/s.King & PatridgeFor RespondentS : Mr.AR.Nixon (R2)COMMON ORDERThese two contempt petitions have been filed allegingwillful disobedience and violation of the order of thiscourt dated 22.07.1996 made in A.No.293 of 1995 inC.S.No.4231/1995 by Appu John, the first defendant in theabove suit, shown to be the first contemnor in both thecontempt petitions. Mansoor Ali Khan is alleged to haveabetted the act of contempt of the above said firstcontemnor and hence he has been arrayed as the secondcontemnor. Yet another person by name R.Premanayagam isalso alleged to have abetted the act of contempt committedby the first contemnor Appu John. He is sworn as the thirdcontemnor in contempt petition No.757 of 2007 alone.2. Contempt Petition No.474 of 2007 has been filed byV.K.John, the plaintiff in the above said suit. As thefirst defendant Appu John and Mansoor Ali Khan alone weremade parties respondents/contemnors 1 and 2 in contemptpetition Nos.474 of 2007 and yet another alleged contemnor https://hcservices.ecourts.gov.in/hcservices/ 3by name Premanayagam was left out, the petitioner in thesaid contempt petition (plaintiff in the suit) has comeforward with sub application No.96 of 2008 to implead thesaid Premanayagam as the third respondent/third contemnorin the said contempt petition. He has also filed anotherapplication, namely sub application No.140 of 2007 to orderthe removal of encroachment allegedly made by Mansoor AliKhan (second contemnor).3. Contempt Petition No.757 of 2007 has been filed byW.S.Seetharam, the third defendant in the suit. Theplaintiff in the suit has been arrayed as the firstrespondent in the said contempt petition. The firstdefendant Appu John and the alleged abettors Mansoor AliKhan and Premanayagam have been arrayed as contemnors 1 to3 respectively (respondents 2 to 4 in contempt petitionNo.757 of 2007).4. All the parties in contempt petition No.474 of 2007are also parties to contempt petition No.757 of 2007. Inaddition, two more persons, namely W.S.Seetharam (thirddefendant) and Premanayagam (third contemnor) also appearas parties in contempt petition No.757 of 2007. The saidpetition is more comprehensive than the other contemptpetition and hence it shall be convenient to refer theparties, especially the contemnors, in the order found incontempt petition No.757 of 2007. https://hcservices.ecourts.gov.in/hcservices/

45. V.K.John, the petitioner in contempt petitionNo.474 of 2007 (first respondent in contempt petitionNo.757 of 2007), had filed the above said suit C.S.No.423of 1995 for partition against 1) Appu John (firstdefendant/first contemnor) and 2) Mrs.Leelie Seetharam(second defendant in the suit). The plaintiff had alsofiled O.A.No.293 of 1995 in the said suit seeking an orderof interim injunction restraining the defendants thereinfrom in any way alienating, altering or demolishing thesuit properties. This court, initially granted an ad-interim injunction for 12 weeks by an order dated25.04.1996. The said order was later on made absolute tillthe disposal of the suit by order dated 22.07.1996. 6. While so, the first contemnor Appu John, inviolation of the above said order of injunction, enteredinto an agreement with one S.P.Goenka to sell as well asmortgage the suit properties to the said Goenka. Hence, atthe instance of the plaintiff he was proceeded against forcontempt in a former contempt petition, namely contemptpetition No.632 of 2003. The said S.P.Goenka was alsoarrayed as a co-contemnor. At the conclusion of enquiry,both of them were found guilty by an order of a learnedsingle judge of this court dated 25.02.2005. However,accepting the apology tendered and the undertaking given by https://hcservices.ecourts.gov.in/hcservices/ 5the first contemnor herein/first defendant that the orderof the court would not be violated in future, the courtrefrained from imposing any substantive punishment andimposed a cost of Rs.5,000/- to be paid by each one ofthem. The above said order was unsuccessfully challengedbefore a Division Bench of this court in contempt appealNo.15/2005. The Division Bench passed an order in the saidcontempt appeal on 30.08.2005 upholding the order of thelearned single judge dated 25.08.2005 and dismissing thecontempt appeal. The above said Goenka had also given anundertaking not to stake any claim based on the agreementtill the disposal of the suit.7. Meanwhile, Mansoor Ali Khan (second contemnorherein) filed a suit O.S.No.1242 of 2007 in the City CivilCourt, Chennai for permanent injunction against V.K.John,W.S.Seetharam and Premanayagam (third contemnor) for apermanent injunction not to disturb his possession andenjoyment of the properties described in 'A' schedule tothe plaint in C.S.No.423 of 1995. He also filedI.A.No.3198 of 2007 for a temporary injunction pendingdisposal of the suit. The said suit (O.S.No.1242 of 2007)and interlocutory application (I.A.No.3198 of 2007) werefiled based on the alleged leasehold right obtained by thesecond contemnor from the first contemnor under aregistered lease agreement dated 01.12.2006. He had https://hcservices.ecourts.gov.in/hcservices/ 6claimed that the entire first floor portion of the buildingand the vacant land in the 'A' schedule property wereleased out to him by the first contemnor. He had alsoclaimed that a sum of Rs.2,00,000/- was paid as advancewith an understanding the same shall carry no interest andat the same time no rent shall be payable by him to thefirst contemnor. It is his further contention that afurther sum of that the interest for the said amount shallbe treated as rent and that a further sum of Rs.8,00,000/-was spent by him for carrying out repairs to the building.The above said act of leasing out the property to thesecond contemnor is cited as the act of contempt on thepart of the first contemnor. The act of getting theproperty on lease from the first contemnor is cited as theact of abetment of contempt on the part of the secondcontemnor herein. 8. The third contemnor is said to have obtained apower of attorney (a registered one) from the firstcontemnor. Based on the power of attorney, the thirdcontemnor is in possession of the ground floor portion ofthe suit 'A' schedule property. 9. During the pendency of these contempt petitions,the first contemnor, namely Appu John passed away.Therefore the charge of contempt against the first https://hcservices.ecourts.gov.in/hcservices/ 7contemnor shall be taken to have abated. However, thecontempt petitions are proceeded further against theremaining contemnors. The contemnors 2 and 3 have taken aplea that they got the lease deed and the power of attorneyrespectively without having any knowledge of the orderpassed by this court granting an injunction restraining thedefendants in the suit from alienating, altering ordemolishing the suit properties.10. The respective pleadings of the parties and thesubmissions made by the respective counsel for the partieshave been taken into consideration.11. Contempt petition No.474 of 2007 has been filed bythe plaintiff in the suit against the first and secondcontemnors alone. Hence sub application No.96 of 2008 hasbeen filed for impleading the third contemnor Premanayagam.However, the very same act on the part of the thirdcontemnor in getting a registered deed of power of attorneyfrom the first contemnor amounted contempt of court,according to the petitioner in both contempt petitions.W.S.Seetharam who was impleaded after the death of thesecond defendant Leelie Sitharam as third defendant in thesuit, has filed contempt petition No.757 of 2007. As it isnot denied that the petitioner in the said contemptpetition, namely contempt petition No.757 of 2007, is https://hcservices.ecourts.gov.in/hcservices/ 8diligently prosecuting the said contempt petition, thiscourt feels it shall not be necessary to implead the thirdcontemnor in the contempt petition filed by the plaintiff,(contempt petition No.474 of 2007), as the same can becanvassed in the other contempt petition. In fact theplaintiff who has been arrayed as the first respondent inthe contempt petition filed by the third defendant,(contempt petition No.757 of 2007), has filed a counteraffidavit supporting the plea of the petitionertherein/third defendant and seeking punishment of thecontemnors 2 and 3 as well. Therefore, this court is ofthe considered view that sub application No.96 of 2008 hasto be closed as no orders are necessary.12. It is not in dispute that this court granted an adinterim injunction for 12 weeks by an order dated25.04.1996 made in A.no.293 of 1995 in C.S.No.423 of 1995restraining the first contemnor and Leelie Seetharam fromalienating, altering or demolishing the suit properties andthat the said order was made absolute till the disposal ofthe suit by an order dated 22.07.1996. It is also theadmitted case of the parties that subsequently, the seconddefendant Mrs.Leelie Seetharam passed away and the thirddefendant W.S.Seetharam was impleaded as her legalrepresentative. It is also not in dispute that thoughthere was some controversy regarding the alleged contempt https://hcservices.ecourts.gov.in/hcservices/ 9which was the subject matter of the earlier contemptpetition, namely contempt petition No.632 of 2003 regardingimputation of knowledge to the respondents therein,ultimately this court, in the said contempt petition and inthe consequent contempt appeal, held that the contemnorstherein, namely first contemnor herein and one S.P.Goenkawere guilty of contempt as they had violated the order ofinjunction. That itself is enough to hold that the firstcontemnor (first defendant) did have sufficient notice ofthe order of injunction. 13. It transpires that the first contemnor, notcontent with the earlier act of contempt, made a subsequentattempt to alienate the property in favour of the secondcontemnor and other persons through the third contemnor byexecuting a registered lease agreement in favour of thesecond contemnor and a registered Power of attorney infavour of the third contemnor. Admittedly, the secondcontemnor got a registered lease agreement from the firstcontemnor on 01.12.2006. A perusal of the copy of the sameproduced in the typed set of papers will make it abundantlyclear that it is a scheme devised by the first contemnor incollusion with the second contemnor to virtually alienatethe property in the form of creation of a lease. In facteven in the previous contempt petition, the Division Benchhas held that an encumbrance in the property, namely https://hcservices.ecourts.gov.in/hcservices/ 10mortgage will amount to alienate. The deed executed infavour of the second contemnor is still worse than theearlier attempt made by the first contemnor. The entirefirst floor portion of the suit 'A' schedule property hasbeen leased out under the above said registered leaseagreement to the second contemnor. In addition to that thevacant land in suit 'A' schedule property which is notoccupied by the building has also been leased out to thesecond contemnor. A reading of the lease agreement willshow that allegedly receiving a sum of Rs.2,00,000/- asadvance, the said property was leased out free of rent tothe second contemnor. The said amount of Rs.2,00,000/- wasalso agreed to be repaid without interest when the secondcontemnor would hand over vacant possession. There is nospecific clause in the agreement that the interest accruedon the deposited amount shall be treated as rent. However,the second contemnor would contend that the same was theagreement between the first contemnor and the secondcontemnor. Even assuming that such an arrangement wouldhave been made, the same shall be far below the reasonablerent for the first floor portion and the vacant land of thesuit 'A' schedule property, as rightly contended by thelearned counsel for the petitioners in the contemptpetitions. The further contention of the second contemnorthat he spent eight lakhs rupees, even withoutauthorisation in writing for repair works, is nothing but https://hcservices.ecourts.gov.in/hcservices/ 11an attempt to meet the contention of the petitioners in thecontempt petitions that the very lease deed is unnatural.It is an attempt to show that the amount to be spent forrepair works/renovation was also taken into account at thetime of entering into the lease agreement. But the 2ndcontemnor has miserably failed in such attempt.14. Clause 7 of the Lease Agreement reads as follows:"7. Lessee agrees to carry out minor repairsof the let out portion and agree to keep it neatand good condition." For carrying out minor repairs such a huge sum shallnot be necessary. Therefore this court accepts thecontention of the petitioners in the contempt petitionsthat the above said contention of the second contemnor isnothing but an attempt to show that the lease agreement isnatural and reasonable. The very arrangement made thereinwill show that the second contemnor also did have theknowledge of the order passed by this court. Thereforethis court, without any hesitation whatsoever, comes to theconclusion that the second contemnor has chosen to enterinto a lease agreement with the first contemnor with theknowledge of the order of this court and thus has abettedthe act of contempt committed by the first contemnor.Accordingly he is to be held liable as if he himself has https://hcservices.ecourts.gov.in/hcservices/ 12committed the act amounting to contempt. 15. It is true that the second contemnor in hiscounter affidavit has incorporated a paragraph tenderingunconditional apology for what he has done. However, inview of the above said finding that the second contemnorentered into the lease agreement with knowledge of theorder of this court, this court deems it fit to convict himfor the act of contempt. But this court proposes to punishhim not with a substantive punishment of imprisonment. Thiscourt is of the considered view that awarding a fine ofRs.1,000/- shall be sufficient. The fine must be paidwithin two weeks failing which the 2nd contemnor shallundergo civil imprisonment for one month. 16. Sub application No.140 of 2007 has been filed forremoval of the alleged encroachment made by the secondcontemnor. Strictly speaking it cannot be termed as anencroachment. It is a kind of alienation made by the firstcontemnor in favour of the second contemnor. The secondcontemnor is in possession of the first floor portion ofthe building and the vacant land in suit 'A' scheduleproperty by virtue of the lease agreement dated 01.12.2006.The said deed has been brought to effect by the act ofcontempt. Any transaction between the parties in violationof the order of the court, which will amount to contempt, https://hcservices.ecourts.gov.in/hcservices/ 13can be declared null and void by the court using its powersunder Section 151 C.P.C. In All Bengal Excise LicenseesAssociation vs. Raghavendra Singh and others reported in2007 (II) SCC 374, the Hon'ble Supreme Court has held that"the court not only has the power but also has the duty toset-right the wrong done in disobedience of a restraintorder or an injunction and not to allow the perpetuation ofthe wrong doing". " Relying on the said observation made by the Hon'bleSupreme court, this court hereby comes to the conclusionthat the interest of justice requires declaration of thelease agreement dated 01.12.2006 between the first andsecond contemnors to be null and void and that thecontinued possession of the second contemnor of theproperty shall be unauthorised. This court also comes tothe conclusion that besides declaring the said leaseagreement null and void, a direction shall be issued to thesecond contemnor to hand over possession to any one of theparties to the suit (admitted to be a co-owner) or thelegal heirs of the first defendant. Admittedly, the firstdefendant is no more and it is not in dispute that theproperty was in his possession before the date of leaseagreement.17. Admittedly, the third defendant has obtained a https://hcservices.ecourts.gov.in/hcservices/ 14power of attorney from the first contemnor on 21.10.2005.The contention of the third contemnor is that he did nothave the knowledge of the order of injunction passed bythis court on the date of obtaining the power of attorney.It is not his contention that the said power of attorneywould not amount to a violation of the order of injunctiongranted by this court. This is so because the said powerof attorney has been couched in such term that it is anirrevocable power of attorney. The third respondent hasbeen given power to negotiate, get advance, enter intoagreement for sale, execute sale deeds and hand overpossession of the properties to the intending purchasers.As per the contents of the deed of power of attorney thesale proceeds can also be appropriated by the thirdcontemnor for his own use. The terms found in the power ofattorney will show that it is also a deliberate attemptmade by the first contemnor in collusion with the thirdcontemnor to have the properties alienated and come with aplea that the alienations were made by the power ofattorney holder without the knowledge of the order ofinjunction. When the third contemnor has not paid anyamount as per the recitals found in the power of attorney,the power given should not have been termed an irrevocablepower of attorney. The further clause empowering the thirdcontemnor to appropriate the advance amount and the saleconsideration and use it according to his will and https://hcservices.ecourts.gov.in/hcservices/ 15pleasure, will show that there is a hidden agenda which hasnot been spelt out in the deed of power of attorney.Therefore, the mere fact that no sale has been effected inpursuance of the power of attorney will not be enough tohold that no alienation has been made. The very fact thatthe first contemnor has given an irrevocable power ofattorney with a right to collect and appropriate the saleproceeds will show that it is nothing but an alienation inthe guise of power of attorney. Therefore this court holdsthat the third contemnor is also guilty of contempt ingetting an irrevocable power of attorney from the firstcontemnor. However, considering the fact that the thirdcontemnor has not effected any alienation in pursuance ofthe power of attorney and that the third contemnor has alsotendered an unconditional apology, this court comes to theconclusion that convicting the third contemnor and imposinga fine shall meet the ends of justice. Accordingly a fineof Rs.1,000/- is imposed. The fine must be paid within twoweeks failing which they will undergo simple imprisonmentfor one month. As a necessary corollary the deed of powerof attorney dated 21.10.2005 shall be declared null andvoid and the third contemnor shall be directed to hand overpossession of the property to either of the parties to thesuit or to the legal representatives of the deceased firstdefendant from whom he got possession. However, it iscontended on behalf of the petitioner in the contempt https://hcservices.ecourts.gov.in/hcservices/ 16petition that there is no legal representative of thedeceased first contemnor/first defendant other than thepetitioners in the contempt petitions/plaintiff and thethird defendant. Hence it shall be directed that in caseany other person would claim to be the legal representativeof the deceased first defendant, the contemnors 2 and 3 mayhand over possession to him/her. In such an event it shallbe open to the petitioners in the contempt petitioners tomove necessary application for appointment of a partyreceiver or third party receiver.18. In the result,I)Sub-applicatiion No.96 of 2008 is dismissed asunnecessary.II)Contempt Petition No.474 of 2007 and 757 of 2007and Sub-application No.140 of 2007 are disposed of with thefollowing order/directions:a)the contemnors 2 and 3 are found guilty ofcontempt and are convicted by imposing a fine of Rs.1,000/-on each one of them to be paid within two weeks from todayand directing them to undergo civil imprisonment for aperiod of one month in case of default in payment of fine.b)the lease agreement dated 01.12.2006 registeredas document No.1164 of 2006 in the office of the SubRegistrar, Thousand Lights is declared null and void. https://hcservices.ecourts.gov.in/hcservices/ 17c)the deed of power of attorney dated 21.10.2005registered as document No.469 of 2005 in the office of theSub Registrar, Thousand Lights is declared null and void.d)The 2nd and 3rd contemnors are directed to handover the respective portion of the suit 'A' scheduleproperty (in their possession) to either of the parties tothe suit or to the legal representatives of the deceasedfirst defendant/first contemnor, as their continuedpossession shall amount to a continuing act. It shall bedone within a period of four weeks. In case any personother than the petitioners in the contempt petitions (firstand third defendant in the suit) would claim to be thelegal representatives of the deceased first contemnor/firstdefendant, the contemnors 2 and 3 may hand over possessionto him/her. In such an event it shall be open to thepetitioners in the contempt petitioners to move necessaryapplication for appointment of a party receiver or thirdparty receiver. sd/P.R.S.J19.01.2009//Certified to be true copy//Dated at Madras this the day of 2008.COURT OFFICER(O.S.)From 25th Day of September 2008 the Registry is issuingcertified copies of the Orders/Judgments/Decrees in thisformat.