IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:19.02.2009
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD)No.2844 of 2008 and
M.P.No.1 of 2008
1. V.Surendaran
2. V.Krishnabai
3. V.Lalithabai
4. V.Donabai
5. V.Geethabai ... Petitioners
vs.
S.D.Sabari Shankar ... Respondent
Civil revision petition filed under Article 227 of the Constitution of India against the order and decree made in CMA No.30 of 2007 dated 6.11.2007 on the file of I Additional District Court, Erode confirming the order and decree made in I.A.No.157 of 2006 in O.S.No.219 of 2005 dated 13.03.2007 on the file of
For Petitioners : Mr.D.Ravichander
For Respondent : Mrs.Hema
for Mrs.R.Meenal
O R D E R
Inveighing the order and decree made in CMA No.30 of 2007 dated 6.11.2007, passed by the I Additional District Court, Erode in confirming the order and decree passed in I.A.No.157 of 2006 in O.S.No.219 of 2005 dated 13.03.2007 by the
2. Heard both sides.
3. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The respondent/plaintiff herein filed the suit O.S.No.219 of 2005 seeking the following reliefs:
"a) Declaring the plaintiff as the adoptive son of J.V.Gomathi, D/o T.G.V.Raj, resident of Sri Sabari Nillayam, 103,
b) restraining the defendants, their men, agents and assigns from interfering with the peaceful possession and enjoyment of the suit properties by the plaintiff by means of a permanent injunction;
c) restraining the defendants, their men,a gents and assigns from alienating or from encumbering the suit properties in any manner by means of a permanent injunction;
d) directing the defendants to pay the costs of the suit and
e) granting the plaintiff such other and further reliefs as this Honourable Court may deem fit and proper in the circumstances of the case rendering justice."
(ii) While so, during the pendency of the suit, I.A.No.487 of 2005 was filed by the plaintiff and obtained an order of injunction so as to restrain the defendants from alienating the suit property. However, violating the said order of injunction, the defendants sold away a part of the suit property, namely item No.5. Whereupon, I.A.No.157 of 2006 was filed under Order 39 Rule 2(A) of CPC for punishing the defendants for they having violated the order of the Court. Whereupon, the lower Court after hearing both sides and marking Ex.P1, the sale deed dated 02.03.2006, found the defendants guilty of having violated the Court's order passed order to the effect that the revision petitioners should be in prison for a period of two weeks in civil jail and that the sale effected as per Ex.P1 is void and that the revision petitioners should not alienate the suit properties till pending disposal of the suit.
4. Being aggrieved by and dissatisfied with the order of the lower Court, the defendants preferred CMA No.30 of 2007 before the I Additional District Court, Erode, for nothing but to be dismissed confirming the order of the lower Court. Being disconcerted by the order of both the Courts below, this revision has been focussed on various grounds.
5. The learned counsel for the revision petitioners would develop his argument to the effect that out of five defendants, four are ladies and the first respondent alone is the male member who helped them in the litigation; it so happened that one Ramasamy, the Power of Attorney of the defendants did certain acts which ultimately boomeranged as against the defendants and that the petitioners should be viewed sympathetically and that if they are sent to jail as ordered by both the Courts below, their reputation would go down in the eye of the public.
6. The learned counsel for the revision petitioners also would submit that the defendants owing to compelling circumstances were forced to execute the Power of Attorney in favour of Ramasamy and that too on the specific undertaking by the latter in favour of the former that pending disposal of the suit and the injunction order of the Court, he would not alienate the said property. However, it appears that he violated his promise and put the defendants in a quandary and now they are in soup. The learned counsel also would advance his argument that since there is no wilful disobedience, they do not deserve such harsh punishment of they being sent to jail.
7. Whereas, the learned Senior Counsel for the respondent/plaintiff by way of torpedoing the specious argument of the learned counsel for the revision petitioners would set forth and put forth her argument to the effect that there is wilful disobedience on the part of the defendants in violating the order of the Court; it is not as though they simply on the alleged compelling circumstances executed the power deed in favour of Ramasamy; by way of adding fuel to the fire, during the pendency of the contempt proceedings the defendants themselves mortgaged Item No.6 of the suit property on 28.12.2007 in favour of one S.Muthusamy by way of Registered document No.6744 of 2007 of Sub Registrar Office, Erode; the defendants also as revealed by the Encumbrance Certificate found enclosed in the additional typed set of papers filed by the respondents, sold the said Item No.6 in favour of Kumar on 31.01.2008 and as such, there is wilful disobedience on the part of the defendants in violating the Court's order; it is obvious that after the appellate Court dismissed the said CMA, they did choose to effect such sale referred to supra. Accordingly, the learned Senior Counsel for the plaintiff would pray for confirming the order of the Courts below and dismiss the civil revision petition.
8. The point for consideration is as to whether there is wilful disobedience of the injunction order and whether there is any infirmity in the order passed by both the Courts below.
9. The Sub Court at paragraph 10 of its order threadbare discussed the factual aspect of the matter and highlighted that the defendants in violation of the injunction order executed a power deed in favour of Ramasamy; thereafter the defendants themselves executed the sale deed Ex.P1 dated 02.03.2006 in favour of Gopal, when the injunction order was in force.
10. The First Appellate Court adverting to the factual aspects highlighted by the lower Court, clearly in paragraph 14 of its judgment pointed out as to how the defendants illegally and shrewdly chosen the date 02.03.2006 as the date for executing Ex.P1, because during the relevant time, the case was transferred from one Court to another Court as per Order of the learned Principal District Judge. But in fact, the transferor Court before transferring the case bundle extended the order of injunction during the transit period and the transferee Court further extended it and to that effect, the trial Court as well as the Appellate court clearly gave their findings. Both the Courts below correctly arrived at the conclusion by observing that the defendants had wilful and illegal intention to violate the Court order; and assuming that there might not be any extension of interim injunction during the transit period, the revision petitioners thought of taking illegal shelter, but it boomeranged, back fired as against them, in addition to having brought forth on themselves unwelcome repurcussions.
11. The very execution of the power deed and the subsequent execution of the sale deed by the defendants would clearly fasten them with liability. Absolutely there is nothing to indicate and exemplify as to what prevented the defendants to approach the Court which granted injunction, explaining their difficulties in view of allegedly said Ramasamy having pressurised them to execute such a power deed in view of some earlier indebtedness. No litigant in
12. However, the learned counsel for the respondent/plaintiff herein has also brought to the knowledge of this Court as to how during the pendency of the contempt proceedings including the proceedings pending before this Court in the form of revision, the defendants indulged in violating the Court order further. I am fully aware of the fact that this Court has to consider normally the happenings which took place before the filing of the I.A.No.157 of 2006 under Order 39 Rule 2(A) of CPC. However, in this case since the petitioners have gone to the extent of very much relying on the plea of absence of wilful contempt on their part, this Court is constrained to look into their subsequent conduct also.
13. It is also a common or garden principle of law that the subsequent conduct of the litigant could be rightly taken into consideration to find out as to whether the said litigant had any respect for law. Hence, I proceed to look into the subsequent events also.
14. I call up and recollect the following maxim also:
Acta exteriora indicant interiora secreta External acts indicate undisclosed thoughts.
15. At this juncture, I would like to narrate the juridical acts performed by the defendants in violation of the Court order in seriatim:
The order of injunction by the lower Court was passed on 22.07.2005. Subsequently, the said interim injunction was made absolute on 12.07.2006 after elaborate enquiry. The defendants executed the Power of Attorney in favour of Ramasamy on 03.02.2006. Thereafter it appears the said item was sold by the power agent to one Gopal on 02.03.2006, so to say, during the currency of the injunction granted by the lower Court. C.M.A.No.30 of 2007 was filed by the defendants as against the order of the lower Court dated 12.07.2006. During the pendency of the said C.M.A., the defendants sold item No.6 vide the sale deed as per Document No.6744 of 2007. Subsequently, CMA was dismissed on 06.11.2007 confirming the order of the lower Court. Those facts are unassailable and incontrovertible as they are all borne by records.
16. Now the core question arises as to whether from the available facts, any Court would be in a position to arrive at the conclusion that the violation of the injunction order was not wilful. The answer is at once clear that no law abiding litigant would ever venture to effect such alienations glaringly and high handedly in violation of the injunction order and that too even during the pendency of contempt proceedings. But in this case, even during the pendency of IA for punishing the defendants, they indulged in such alienations. By way of adding fuel to the fire, even after the lower Court passed the order sentencing them to undergo imprisonment, they did choose to effect alienations. The principle of "Res ipsa loquitur" - the thing speaks for itself, would squarely applicable in the facts and circumstances of this case. The facts would speak by themselves that they had no regard for law and the Court order. They not only flouted the Court's order but they had the audacity to indulge in such sort of alienation in a dare devil type of manner which will not earn the sympathy of this Court in passing any order so as to mitigate the rigour of the order passed by the lower Court. No doubt, the ladies in the litigative process should be viewed sympathetically, but here in this case, the manner in which the ladies joined with the first respondent would leave no doubt in the mind of the Court that the defendants conjointly had that wilful mental element to flout the order of this Court by having no respect for it.
17. At this juncture, the learned Senior Counsel for the respondent would bring to the knowledge of this Court that relating to mortgaging and sale of Item No.6 as set out supra there is one other I.A. pending before the lower Court and already while disposing of the I.A.No.157 of 2007 under Order 39 Rule 2(A) of CPC, for having sold Item No.5 of the suit properties, orders were passed by both the Courts below; relating to Item No.6 is concerned, so far no order has been passed and no attachment has been effected and hence this Court itself might order for attachment of Item No.6 also.
18. Whereas, the learned counsel for the defendants would submit that so far as I.A. relating to alienation of item No.6 is concerned, the lower Court has not yet passed orders and the defendants should be given opportunity of defending that I.A. and any order that would be passed relating to Item No.6 by this Court would prejudice the lower Court.
19. This is a singularly singular case wherein while deciding the defendants' violation of the order of the lower Court relating to item No.5, this Court was constrained to look into their subsequent conduct and hence this Court also dealt with alienations relating to item No.6 of the suit properties. In such a case, I am of the considered opinion that there would be no harm if further direction is given to the lower Court to see that pending disposal of that I.A. relating to Item No.6, the interest of the plaintiff is protected by passing necessary orders relating to attachment of item No.6 as an interim measure, so that the matter would not get further complicated. Accordingly, the matter is disposed of.
20. As prayed by the learned counsel for the defendants, so far as the I.A. concerning Item No.6 of the suit property is concerned, the lower Court is directed to look into the matter untrammelled and uninfluenced by any of the observations made in the order passed by this Court while dismissing this civil revision petition. No costs. Consequently, connected miscellaneous petition is closed.
gms
To
1. I Additional District Court, Erode
2. II Additional
Erode
