Mrs. Shobhana Radhakrishnan v. Mr.R. Krishnamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.01.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHContempt Appeal No.13 of 2002andC.M.P.No.17736 of 2002 1. Mrs. Shobhana Radhakrishnan2. Mrs. Mohana Nair .. Appellants/Respondents-vs-Mr.R. Krishnamoorthy.. Respondent/Petitioner Contempt Appeal under Section 19(1) of the Contempt ofCourts Act, 1971 against the order dated 30.10.2002 made inContempt 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 SridevanJUDGMENTD.MURUGESAN, J.1. The Contempt Appeal is directed against the order dated30.12.2002 passed in Contempt Application No.481 of 2002.2. A brief resume of the facts leading to the presentContempt Appeal may be stated as follows:i) The parties are referred to as arrayed in the ContemptAppeal. The respondent filed a suit in C.S.No.733 of 1997 beforethis Court and pending the said suit he also filed an applicationNo.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 interferingwith the free access to the terrace described in 'B' Schedule tothe plaint. On 08.01.1998, learned single Judge passed thefollowing Order: ''Learned counsel for the Respondents 1 and 2given an undertaking that his client will be availablein the house in all reasonable hours and the keys toopen the grill-door leading to the terrace is alwayskept by him and in case of any requirement, he would goand open the door for the benefit of the other tenants.It is also stated that in case he leaves the place forany reason, he would see to it that the keys are handedover to the watchman who is there engaged by all theflat owners. The key will be given for attending to therepairs or break-down in the lift or for access tooverhead tank and also for adjusting the televisionantennas.With this undertaking, the matter is adjourned forhearing after four weeks.''ii) By subsequent Order dated 09.11.1998, the learned Judgemodified the above order and the said order reads as follows:“As per the earlier order passed on08.01.1998, an arrangement has come into effectand both sides agree that the matter is beingdealt with smoothly without any complication. Therespondents 1 and 2 have undertaken to handoverthe keys to the watchman whenever they are notavailable and this is being done now. The learnedcounsel for the respondents 1 and 2 now state thatthey have been handing over the keys to theSecretary of the Flat Owners' Association of whichthe applicant is a member and this arrangement maybe continued. Both sides agree and therefore, fortill the disposal of the suit, this arrangementwill continue and this application is closed.”iii) When the respondent complained to the Court as to thebreach of undertaking given by the Appellants, this Court, on26.04.2000, had ordered as follows:“when the matter is brought before thisCourt as “Being mentioned”, it is represented by https://hcservices.ecourts.gov.in/hcservices/ the counsel for the plaintiff/applicant that theearlier order passed by this Court permitting thePlaintiff/Applicant to use the terrace, has not beencomplied with by Defendants/Respondents. Now, thecounsel appearing for the Respondents 1 and 2 wouldundertake that he would give proper advice to theparty to comply with the order referred to above.Post the matter after vacation.”iv) The respondent approached this Court by way of ContemptApplication No.481 of 2002 on the ground that in spite of theundertakings, the appellants did no allow the access to therespondent to the terrace for the purpose of effecting repairs. ByOrder dated 30.10.2002, learned Judge after holding that theappellants herein did not honour the undertaking given before thisCourt also found that there had been a breach of undertaking. Thelearned Judge had also noted the submission made on behalf of theappellants that “there will have no objection if the respondentwanted to effect repairs at his own cost and no right should bedeemed to be conferred on him, merely because he is permitted toeffect the repairs” and let the appellants with warning withoutimposing any other punishment.3. Aggrieved by the Order of warning, the present contemptappeal is filed. Mr. Sriram Panchu, learned Senior Counsel wouldsubmit that there had been no breach of undertaking as could beseen from the various communications exchanged between theappellants and the respondents. He would submit that initially byOrder dated 08.01.1998, this Court had recorded the undertakinggiven by the appellants that they will be available in the house inall reasonable hours and the keys to open the grill door leading tothe terrace is always kept by him and in case he leaves the placefor any reason, the keys will be handed over to the watchman forattending the repairs or break-down in the lift or for access tooverhead tank and also for adjusting the television antennas. Theundertaking relates to handing over of the keys to the watchman wasmodified and the appellants undertook to handover the keys to theSecretary of the association of the flat owners of which therespondent is also a member. When the respondent had issued noticeon 09.10.2001 alleging the breach of undertaking and the refusal ofthe appellants to handover the keys to open the terrace to haveaccess, by a reply dated 15.10.2001 the appellants had denied suchallegations of violation of undertaking given before this Court.By a subsequent letter dated 11.06.2002 addressed to the appellantson 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 carryout the repair and to do necessary precaution before the summerrain starts as there had been some cracks and water seepage in theroof portion. In response a letter dated 26.06.2002 from theappellants counsel it was informed that such repairs can be carriedon by the appellants themselves on getting an expert Engineer'sestimate.4. Learned counsel therefore submitted that there had beenno intention on the part of the appellants to disobey theundertaking given before this Court and in any case there was nowillful disobedience of the undertaking. Therefore, learnedcounsel submitted that the finding that the appellant had breachedthe undertaking is liable to be set aside and consequently thewarning also to be set aside.5. On the other hand, Mr.R. Krishnaswamy, learned SeniorCounsel would submit that the appeal itself is not maintainableunder Section 19(1) of Contempt of Courts Act 1971, since, “awarning” cannot be considered to be a punishment. In support ofthe above, learned Senior Counsel relied on the Judgment of theApex Court in D.N. Taneja vs. Bhajan Lal reported in (1988) 3Supreme Court Cases 26. 6. In so far as the merit is concerned the learned SeniorCounsel would submit that in spite of repeated request to hand overthe keys to have access to terrace portion as well as to carry outthe repairs, the appellants had refused to handover the keys on theone pretext or the other and thereby disobeyed the undertakinggiven before the Court. He would also submit that letter dated26.06.2002 said to have been issued on behalf of the appellants wasnot served on the respondent and in the absence of any suchcommunication the appellants cannot claim now that they had notdisobeyed the undertaking given before the Court.7. We carefully considered the rival contentions. In sofar as the objections raised by the learned Senior Counsel for therespondent as to the maintainability of the appeal, it is to benoted that in terms of section 12 of Contempt of Courts Act, 1971,this court could impose a punishment on the person who is foundguilty of contempt of Court including disobedience of undertaking.An appeal can be preferred under Section 19(1)(a) of the Contemptsof Courts Act, 1971, against the order or decision of a singleJudge, to a Bench of not less than two Judges of the Court. TheJudgment of the Apex Court reported in [(1988) 3 Supreme CourtCases 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 Article215 of the Constitution of India. While considering such power theApex Court in paragraph 8 has held as follows:“8. The right of appeal will be availableunder sub-section (1) of section 19 only against anydecision or order of a High Court passed in theexercise of its jurisdiction to punish the contempt.In this connection, it is pertinent to refer to theprovisions of Article 215 of the Constitution whichprovides that every High Court shall be a court ofrecord and shall have all powers of such a Courtincluding the power to punish for contempt of itself.Article 215 confers on the High Court the power topunish for contempt of itself. In other words, theHigh Court derives its jurisdiction to punich forcontempt from Article 215 of the constitution. Ashad been noticed earlier, an appeal will lie underSection 19(1) of the Act only when the High Courtmakes an order or decision in exercise of itsjurisdiction to punish for contempt. It is submittedon behalf of the respondent and in our opinionrightly, that the High Court exercises itsjurisdiction or power as conferred on it by Article215 of the Constitution when it imposes a punishmentfor contempt. When the High Court does not imposeany punishment on the alleged contemnor, the HighCourt does not exercise its jurisdiction or power topunish for contempt. The jurisdiction of the HighCourt is to punish. When no punishment is imposedby the High Court, it is difficult to say that theHigh Court has exercised its jurisdiction or power asconferred on it by Articles 215 of the Constitution.”8. The decision of the Apex Court is that an appeal shallalso lie to a Division Bench under Section 19(1) of the Contempt ofCourts Act 1971, questioning the Order of punishment passed inexercise of powers under Article 215 of the Constitution of India.As a necessary corollary it must be also understood that the powerof the court to entertain under Section 19 of the Act the appealcannot be considered to be excluded. In case, the order ofpunishment is not imposed in exercise of the power under Article215 of the Constitution of India, the power vested in the HighCourt under Section 19(1) of the Contempt of Courts Act, 1971,against a decision or an order passed by the High Court in exerciseof 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 thecommon law. The power to punish for its own contempt is aninherent power of this court as it is a court of record and suchpower is an essential auxiliary to the administration of justice.The power to institute a proceedings for contempt seems to be andnot outside the sweep of Article 215 of the Constitution of India.Article 215 of the constitution does not define or enumerate allthe powers which the High Court enjoys as a court of records as itonly refer to the power of the High Court to punish the contempt ofitself while it recognises that there are also other powersavailable to the High Court as a court of record. 10. It is argued that unless the High Court in exercise ofthe power under Article 215 of the Constitution of India imposes ofpunishments, 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 ofthe Constitution of India and imposes any punishment, an appeal ismaintainable under Section 19(1)(a) of the Act or not. To beprecise as in this case whether an appeal is maintainable asagainst a warning which, according to the counsel for therespondent is not a punishment.11. Section 2(a) of the Act defines that the "Contempt ofCourt" means Civil contempt or Criminal contempt. Civil Contempt iswillful disobedience to any judgment, decree, direction, order,writ or other process of a court or wilful breach of an undertakinggiven to a Court. Criminal contempt is defined in Section 2(c) ofthe Act. Section 12 of the Act relating to the imposition ofpunishment which reads as follows:"12(1). Save as ortherwise expressly provided inthis Act or in any other law, a contempt of court may bepunished with simple imprisonment for a term which mayextend to six months, or with fine which may extend totwo thousand rupees, or with both.Provided that the accused may be discharged or thepunishment awarded may be remitted on apology being madeto the satisfaction of the Court.Explanation – An apology shall not be rejected merely onthe ground that it is qualified or conditional if theaccused makes it bona fide. https://hcservices.ecourts.gov.in/hcservices/

2. Notwithstanding anything contained in any lawfor the time being in force, no court shall impose asentence in excess of that specified in sub-section (1)for any contempt either in respect of itself or of acourt subordinate to it.3. Notwithstanding anything contained in thissection, where a person is found guilty of a civilcontempt the court, if it considers that a fine will notmeet the ends of justice and that a sentence ofimprisonment is necessary shall, instead of sentencinghim to simple imprisonment, direct that he be detained ina civil prison for such period not exceeding six monthsas it may think fit." 12. An appeal is provided under Section 19(1)of the Act andthe same reads as under : "19(1) An appeal shall lie as of right from anyorder or decision of High Court in the exercise of itsjurisdiction to punish for contempt - (a) where the order or decision is that of aSingle Judge to a bench of not less than two judges ofthe Court; (b) Where the order or decision is that of aBench, to the Supreme Court:Provided that where the order or decision is that ofthe court of Judicial Commissioner in any unionterritory, such appeal shall lie to the Supreme Court." 13. Whenever a decision or order culminated into one ofpunishment made under Section 12 of the Act, an appeal ismaintainable under Section19(1)(a) of the Act. Similarly when thisCourt imposes a punishment under Article 215 of the Constitution ofIndia, an appeal is maintainable to a bench of not less than twoJudges. Section 19(1) does not say that an appeal lies onlypunishment for contempt but uses rather a wider expression that anappeal lies from any order or decision passed in exercise of thejurisdiction to punish for contempt. The expression "any order ordecision" in this connection purports to connote prima facie avariety of orders or decisions that may be passed by the court inexercise of its jurisdiction to punish for contempt. Restrictedinterpretation to the words "order or decision" confining only to https://hcservices.ecourts.gov.in/hcservices/ the punishment will be tantamount to delete such words orexpressions used in Section 19 of the Act. The expression 'orderof decision' in Sub-Section (a) of Section 19 also includessomething other than punishment is it appears from a reading ofsub-section (2)(a) of section 19 which provides that pending anyappeal the appellant court may order that "the execution of thepunishment or order appeal against be suspended". The section doesnot restricts an appeal against a punishment since the sectionincludes "or order" as well. If the order of punishment is alonemade appealable, there would have been no necessity of using thewords 'or order' in the expression 'the execution of the punishmentor order appealed against' as used in sub-section 2(a) ofSection 19.14. On a plain reading of Section 19 fo the Act providesthat an appeal shall lie from any order or decision of High Courtin 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 passesin exercise of its jurisdiction to punish for contempt. "Any order"is not independent of the expression "decision" and they have beenput in an alternative form saying "order" or "decision". Adecision or order holding the contemnor guilty of either an orderof the Court or breach of undertaking could be questioned by way ofappeal under Section 19(1) of the Act. Of course when a decisiontaken by the Court to reject the contempt petition, appeal is notmaintainable. Such law has been laid on the principle that thecontempt proceedings are between the Court and the Contemnor andthe complainant stands only as a person to bring to the notice ofthe Court, the alleged contempt. Though warning is not apunishment if a restricted meaning is given to the order and tohold that the appeal is not maintainable against a warning woulddeviate the very right of the person since such an order of warningmay affect adversely or cause prejudice to the contemnor. 15. A reading of the order of the learned Judge shows thatthe appellants were found guilty of the contempt as the learnedJudge has observed, “I am of the view that the respondents 1 and2 have not honoured the undertaking which had beengiven by them and therefore there had been a breachof undertaking which had culminated in the order ofthe 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 adecision, the learned Judge having regard to the submissions madeby the learned counsel for the appellants herein that they wouldhave no objection if the respondent wanted to effect repairs at hisown and the respondent will be permitted to effect the repairs,the learned Judge did not impose any other punishment exceptwarning. Warning is not specifically enumerated as a punishmentunder Section 12 of the Contempt of Courts Act, 1971.Nevertheless, when such warning may also cause serious prejudice oradversely affect the contemnor, an order imposing warning can alsoquestioned by preferring appeal since such warning is ordered onlyafter holding the appellant guilty of contempt. Hence we hold thatthe present appeal is maintainable. 17. Coming to the merits, it is true, that when theapplication was made before this Court on behalf of the respondent,an undertaking was given by the appellants on 8.1.98 to the effectthat they will make available in all reasonable hours and the keysto open the grill-door leading to the terrace is always kept by himand case of any requirement he would go and open the door for thebenefit of the other tenants and further undertake that the keywill be given for attending to the repairs or break-down in thelift or for access to overhead tank and also for adjusting thetelevision antennas. This undertaking was subsequently modified on9.11.1998 that the keys would be handed over to the Secretary ofthe flat owners Association, wherein the respondent was also amember. Even before the second order came to be passed , itappears that on the date of first order was passed, a letter wasaddressed to the Secretary of the Flats owner's Association onbehalf of the appellants expressed their wish to hand over theterrace keys for safe keeping to the Secretary of the flat ownersAssociation. In the said communication it has been mentioned thatthe keys can be given to the flat owners permitting them to accessthe terrace for the specific purpose of attending water tank, Liftrepairs and adjusting television antennas if required. The saidnotice was communicated to all the flat owners.18. When it was reported before this Court that theundertaking was not complied with, learned counsel for theappellants submitted that he would undertake to give proper adviseto the parties to comply with the order, subsequent order waspassed on 26.4.2000. Pursuant to the said order, on 06.05.2001the appellants had also informed the respondents that the keys havebeen left with the watchman for specific use of the respondent toopen the terrace and for free access. There is no dispute tillthis 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 appellantshad not given the keys and permitted free access. The letter of theAdvocate for the respondent dated 11.6.2002 is strongly relied uponby the respondent wherein it was mentioned that due to some cracks,water seepage developed he required the key. To this the appellantshad replied through their Advocate dated 26.06.2002 that therepairs can be carried on by the appellants at their expense ongetting an expert Engineer's estimate. The respondent has disputedthe service of such a letter. On the other hand the appellantsclaimed that they had sent the letter but unable to produce theacknowledgment. It is true, the appellants have not produced therecords to show that such letter was in fact served on therespondent. Nevertheless for the purpose of contempt application.when there is a dispute, merely because the appellants could notproduce the acknowledgment for service of such letter and when suchletter was addressed by the counsel appearing for the appellant itcannot be presumed the the appellants willfully created such aletter only for the purpose of defending the case.19. For all the above reasons, we are of the considered viewthat the appellants have not disobeyed the undertaking given beforethis Court and the decision that they have not honoured theundertaking is liable to be set aside. 20. Accordingly the order passed in Contempt ApplicationNo.481 of 2002 dated 30.10.2002 is set aside and the contemptappeal is allowed. Consequently, connected Miscellaneous Petitionis closed.ggsSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. 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 200210.01.2008