(Contempt Case U/s.10 to 12 of Contempt of Courts Act to punish the Respondents herein for violating, disobeying the Order of the High Court dated 09/04/2004 in CMP No.523/2004 in CRP No.3332/2001)

1. Heard Sri Mohd.Ghulam Rasool, counsel representing the petitioner-landlord and Sri P. Venugopal, counsel representing the tenants.

2. These two contempt cases are filed by the landlord as against the respective tenants for non-compliance of the directions made by this Court in C.M.P.No.523 of 2004 in C.R.P.No.3332 of 2001 and in C.M.P.No.547 of 2004 in C.R.P.No.3520 of 2001 respectively. The said order reads as hereunder:

Heard both sides.

Tenant is directed to pay fair rent fixed by the Rent Controller and agreed so far within one month from today.

3. The grievance of the landlord is that the direction issued by this Court had not been complied with and hence, the landlord is entitled to invoke the jurisdiction of the Court under the contempt of Courts Act, 1971 hereinafter in short referred to as the for the purpose of convenience.

4. Sri Mohd. Ghulam Rasool the learned counsel representing the petitioner-landlord would contend that in the light of the definition of the civil contempt and criminal contempt under Section 2(b) and 2(c) of the inasmuch as the positive direction had not been complied with this would fall under civil contempt and hence, these contempt cases can be maintained for violation of directions issued by this Court, and the respective respondent-tenants are liable to be punished.

5. Per contra, Sri P. Venugopal, the learned counsel representing the respective respondents-tenants in both the matters would maintain that in such cases the powers under the cannot be exercised since there is no willful disobedience on the part of the respective tenants. Even otherwise, the contempt jurisdiction may have to be exercised cautiously and sparingly and where yet another remedy is available to the landlord he cannot be permitted to invoke the jurisdiction under the provisions of the for the purpose getting an order or direction issued by this court executed. The counsel would maintain that the remedy is elsewhere. The learned counsel also would maintain that under the framework of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 specific remedies are available even to throw the tenant out in view of the non-compliance of a direction or for non-payment of rent and for other like reasons. When that being so, the landlord is not justified in invoking the jurisdiction of this Court under this Act.

6. The Act, Act 70 of 1971 is an Act to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto. Section 2(a) of thedefines contempt of Court as hereunder:

2(a) In this Act, unless the context otherwise requires, contempt of court means civil contempt or criminal contempt.

Section 2(b) of thedefines civil contempt as hereunder:

2(b) civil contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.

Section 2 (c) of thedefines criminal contempt as hereunder:

2(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner;

7. In the present case the direction issued by the Court already had been specified supra. It is not in serious controversy that this direction had not been complied with. However, the learned counsel representing the respective tenants had put forth some explanation. These aspects need not be gone into in the present contempt proceedings for the reasons specified infra. Here is a case where the tenant was directed to pay the rents and the same had not been complied with. It is needless to say that under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 the remedies are available in this regard. The learned counsel representing the petitioner-landlord placed strong reliance on a decision of the learned judge of this Court in Atavala Chinnamanna and Others Vs. Bobbadi Chinnammadu 2005 (2) ALD 78 [LQ/TelHC/2004/1421] and on the strength of the said decision submissions at length were made that in a case of this nature irrespective of the fact that the landlord is having yet another remedy he can definitely invoke the jurisdiction under the provisions of the. In the said decision, the learned judge of this Court held as follows:

Respondent filed E.P.No.43 of 1989 in O.S.No.71 of 1986 on the file of the Principal Subordinate Judge, Srikakulam, seeking arrest of the revision petitioners for noncompliance with the order dated 4.10.1988 in CMP No. 12983 of 1988 and CMP NO.15196 of 1988 in A.S.No.2248 of 1988 on the file of this Court, whereunder they were directed to pay certain amounts to the respondent. Revision petitioners filed a counter in E.P.No.43 of 1989 contending that the order dated 4.10.1988 in CMP No.12983 of 1988 and CMP No.15195 of 1988 is not an executable order. After recording the evidence of the respondent and the ninth revision petitioner and after taking into consideration the documents produced by them, the Executing Court overruled the objections of the revision petitioner and directed their arrest. Hence, this revision contending that since the order dated 4.10.1988 in CMP No.12983 of 1988 and CMP No.15196 of 1988 is not a decree within the meaning of Section 2(2) of the code of Civil Procedure, it cannot he executed and that their remedy is to file a petition for contempt. When a conditional order passed by this court is not complied with, the beneficiary thereunder can seek its enforcement by filing an E.P. in view of Section 36 of CPC which lays down that the provisions in the Code relating to execution of decrees would apply to execution of orders including payment under an order. So, irrespective of the fact that the respondent has the remedy of filing a petition for contempt also, she is entitled to seek execution of the decree under Order 21 CPC, by virtue of Section 36 CPC.

8. The Division Bench of Madras High Court in Abdul Razack Sahib V. Azizunnissa Begum & Others AIR 1970 Madras 14 held as follows:

It is submitted that there was only noncompliance with a simple order, no doubt of this court, for payment of money claimed by the landlord as due for rents and such noncompliance does not carry with it penal sanctions as contempt of court. From the record it does not appear that the appellant before us which had succeeded in the final court and who was only the respondent here had even bargained to deposit these arrears of rent and continue to deposit the future rent pending the civil revision petition, as a condition of his being allowed to continue in possession of the lands undisturbed till the disposal of the civil revision petition. His answer to that petitioner for deposit was that he was not in possession of the lands. We do not find recorded any undertaking by him to the court at any stage of the proceeding to deposit the moneys into court. The petitioners in the civil revision petition moved for committal of the appellant for contempt only for disobedience of the order dated 28.1.1966 in C.M.P.No.5345 of 1965. The learned Judge appears to be of the view that the failure to deposit the amount as directed by this Court is itself contempt of court, for the learned Judge observes-

Till now, it does not appear that the respondent has deposited any amount as directed by this court. The respondent is, therefore, guilty of contempt of courts.” We fail to see how mere failure to deposit into Court moneys claimed by the opposite party and ordered to be deposited can amount to contempt of Court. Counsel for the petitioners cannot place a single decision before us: nor do we recollect a single instance where default of an order for payment of money has been held to constitute contempt of Court and the defaulting party sent to prison. While it is difficult to rigidly define contempt, in a general way contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice parties litigation. For an act to amount to contempt punishable under the summary jurisdiction of this Court, it must fall within the principle of those cases in which the power to punish has been decided to exist, the unfailing criterion being whether or not there has been an interference or a tendency to interfere with the administration of justice. Contempt jurisdiction is reserved and exercised for what essentially brings the administration of justice into contempt, or unduly weakens it, as distinguished from a wrong that might be inflicted on a private party by infringing a decreetal order of Court.

In Ramalingam V. Mahalinga Nadar (AIR 1966 Mad 21 [LQ/MadHC/1965/41] at p.22) we formulated the principle of contempt jurisdiction thus-

Essentially contempt of Court is a matter which concerns the administration of justice and the dignity and authority of judicial tribunals; a party can bring to the notice of Court, facts constituting what may appear to amount to contempt of Court, for such action as the Court deems it expedient to adopt. But, essentially, jurisdiction in contempt is not a right of a party, to be invoked for the redressal of his grievances; nor is it a mode by which the rights of a party, adjudicated upon by a tribunal, can be enforced against another party.

If we may use what may be considered an irrelevant expression, having regard to the high function of a Court of justice, proceedings by way of contempt of Court should not be used as a legal thumbscrew by a party against his opponent for enforcement of his claim. But that is what the petitioners have attempted in this case.

The inapplicability of contempt process to an order like the one before us, is too well established to require any citation. We shall, however, refer to one case where the principle is neatly brought out. In Buckley V. Crawford, 1893-1 QB 105 at p.107 in Volume I, an application was made for an order to commit the plaintiff in the action for disobedience to an order which had been made directing him to pay a sum of money to the claimant in inter-pleader proceedings. It was argued in that case that there was a bargain and an undertaking, and a breach of the undertaking to pay amounted to contempt of Court which may be punished by attachment, just as a breach of an injunction may. Wills, J., with whom Lord Coleridge C.J. concurred, holding that there was no jurisdiction in the Court in such a case to make an order for attachment for contempt, observed-

This was a simple order to pay money, but it is sought to treat the default in obeying the order as a contempt of Court, on the ground that the order for payment was made in pursuance of an undertaking which had been given by the plaintiff. There is however, no difference between an order to pay money made in pursuance of an undertaking and any other order to pay a sum of money. It is true that the undertaking is the original ground of the liability but attachment is never granted except for disobedience of an order to do or abstain from doing some specific thing.

It follows that the non-compliance by the appellant with the order of this Court directing him to deposit the arrears of rent due to the petitioners within the time prescribed and continue to deposit the future rent, does not amount to any contempt of Court the Penal sanction under the contempt procedure should not be invoked for default of compliance with such an order. It is not for us to suggest the processes that may be resorted to in such a case. The appeal is, therefore, allowed.

9. The learned Judge of this Court in Mohd. Afzal vs. M/s. Common Wealth Hotel Pvt. Ltd. (1993 (1) ALT 35) dealing with a similar direction issued in C.R.P. observed at paras-13 to 16 as hereunder:

In the present case, pending suit for eviction, an application was filed by the petitioner-landlord to direct the respondent-tenant to deposit the rent. The same was dismissed by the trial court and on revision, this court directed the respondent-tenant to deposit the rent as indicated in the order in the revision. Suit is still pending. Failure to deposit the amount as per the orders of this court will not attract the provisions of the Contempt of Courts Act and the respondent-tenant cannot be said to have committed any contempt. However, the order of this Court cannot be treated as a scrap of paper and it cannot be said that the petitioner-landlord has no remedy whatsoever. Petitioner-landlord is entitled to execute the order of this Court passed in C.R.P.No.240 of 1990 and if such an application for execution of the order in revision is filed, the lower court will be bound to execute the same treating the order in revision as a decree. It is open to the petitioner to execute the said order as per the provisions of the Code of Civil Procedure.

Contempt proceedings cannot be used as a lever for obtaining speedy and immediate relief prayed for in the suit even before the suit is decided one way or the other without resorting to the usual normal procedure prescribed. Contempt proceedings should not be used as a legal thumbscrew by a party against his opponent for enforcement of his claim as held in Ramalingam Vs. Mahalinga Nadar (AIR 1966 Mad.21 ).

It is also well settled that mere disobedience of an order will not amount to Contempt of Court. Breach or disobedience must be willful and contumacious signifying clearly disrespect to the Court. It is also well settled that jurisdiction to punish for contempt should be exercised with great care and caution and only in exceptional case.

16. In the present case, I am of the view that even assuming that there is disobedience of the orders of this Court, it is not a contumacious signifying clearly disrespect to the Court.

10. In Babu Ram Gupta Vs. Sudhir Bhasin and Another (AIR 1979 SC 1528 [LQ/SC/1979/238] =1979 Crl.L.J.952) while dealing with disobedience of compromise decree or consent order and contempt of court, the Apex Court at para-10 of the judgment observed as hereunder:

These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court, a few examples would show how sustainable in law the view taken by the High court is. Take the instance of a suit where the defendant agrees that a decree for Rs.10,000/- may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decreetal amount he is guilty of contempt of court The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court Here also the answer must be in the negative and the remedy of A would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that noncompliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practiced by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemnor or incorporated by the court in its order, there can be no question of willful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

11. The decision in R.N. Dey and Others vs. Bhagyabati Pramanik and Others (2000) 4 SCC 400 [LQ/SC/2000/744] also may be well referred to in this context where the Apes Court had dealt with the powers to be exercised under the and the misuse of the jurisdiction. The learned Judges of the Apex Court while dealing with the exercise of powers under the observed that the weapon of contempt cannot be used for the purpose of execution of the decree or implementing an order of which law providers appropriate procedure and the purpose of discretion granted to the Court is to maintain the dignity of Courts and majesty of law. In the said case the appellants filed first appeal against the award under the land Acquisition Act in favour of respondents-claimants for acquisition of Ac.39.02 cents of land and the appellate court-High Court ordered interim payment by the appellants. But, however, in view of the information which came to light indicating fraud by respondents in obtaining award in their favour, an application to vacate the order also had been moved. The respondents filed contempt application against the appellants for not making payments ordered by the Court and appellants tendered unqualified apology which was accepted by the High Court and the High Court not discharging the rule issued in contempt application by directing appellants to deposit payments with Registrar, while first appeal remained pending, it was held that on facts contempt proceedings were not required to be initiated at all.

12. In K.M. Shiva Kumar vs. Kanak Raj Mehta (2000) 10 SCC 519 [LQ/SC/2000/437] , in relation to non-compliance with a courts order where the court ordered jail sentence to appellants on his failure to pay the amount ordered by the court and appellant tendering unconditional apology by undertaking to pay all the amount due to Government in installment and after considering all the aspects, the apology was accepted and jail sentence was set aside on condition that if he fails to abide by his undertaking even in regard to the payment of one monthly installment he would be liable to serve the remaining period of sentence as per the impugned order.

13. A decision of the learned Judge of the Delhi High Court also may be referred to in this contest. In Indian Oversees Bank vs. Lalit Kumar Aggarwal and Another 2001 Crl.L.J. 545 the learned judge while dealing with a money decree passed against the respondents where interim stay was granted on certain conditions and respondent giving an undertaking to deposit, but failure to deposit the same and consequences thereof, observed at paras-4 and 5 as hereunder:

As it is, respondent undertaking requires to be seen and read in its proper context and perspective. They had executed it to meet the condition for grant of stay order and once they failed to adhere to its terms, it consequently led to vacation of the stay order obtained by them. The nature of undertaking executed by them was different than the usual undertaking given by an executants to do or refrain from doing something and in the later case an executant would render himself liable to action.

Respondent undertaking in the present case, on the contrary, was offered to meet the condition for grant of stay order. It was a matter between them and the Court and had nothing to do with the petitioner Bank. In other words, the undertaking was not executed in favour of Bank but was given to obtain a conditional stay order and if respondents failed to abide by its terms, they would be deprived of the benefit of stay order thereby exposing themselves to execution of decree. This apart, it appears, that petitioner Bank was using contempt action either to bypass execution process or to user it as its substitute to ensure speedy recovery of its money which had nothing to do with the dignity or majesty of the court or its order. Needless to emphasis that contempt is a matter between the court and the alleged contemnor and is not to be used for the purpose of recovery of money or executing a decree, more so where a law provides a procedure or mechanism and alternative remedy for it

14. In the light of the fact that the resultant consequences for non-compliance of the order have been well provided for even under different provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and also in view of the fact that this is only a simple direction, it cannot be said that the non-compliance of such direction by the respondents-respective tenants would amount to contempt so as to attract the provisions of the. Even otherwise, this court is not inclined to exercise the powers of contempt under the in view of the peculiar facts and circumstances inasmuch as the other remedies are available to the petitioner-landlord. Viewed from any angle, this court is of the considered opinion that these contempt cases are devoid of merit and accordingly, the same shall stand dismissed at the stage of admission.

15. Accordingly, the contempt cases are hereby dismissed. No costs. It is needless to say that the landlord is at liberty to pursue the other remedies available to him under law.