Matter is taken in the revised cause list.
None present on behalf of the respondents.
Heard Sri D.K. Raizada, learned counsel for the applicants and perused the record.
Brief facts of the present case are to the effect that petitioners filed a Suit for permanent injunction registered as Regular Suit No. 633 of 1999 (Chhabiley and others Vs. Vice Chairman LDA) in the court of Civil Judge(J.D.), Hawali, Lucknow. In the said matter, an application under Order XXXIX Rule 1 & 2 read with Section 151 supported with an affidavit has been filed for grant of temporary injunction.
On 26.04.2000, a temporary injunction has been granted in favour of the applicant-plaintiffs. Thereafter, an ex-parte judgment and decree has been passed in favour of the applicants-plaintiffs on 09.01.2001(Annexure no. 6) thereby restraining the defendants-respondents from interfering in the peaceful possession of the plaintiffs-applicants as per the submission made by the learned counsel for the applicants.
As the ex-parte order dated 09.01.2001 passed in Regular Suit has not been complied with, so the present contempt petition has been filed under Section 12 of the Contempt Court Act for alleged non-compliance of the same.
I have heard learned counsel for the applicants and gone through the record.
Core question which is to be decided in the present case is whether the present contempt petition filed by the applicants is maintainable under Section 12 of the Contempt Court Act, 1972 in view of the availability of efficacious alternative remedy under Order XXI Rule 32(5) C.P.C. of the Code of Civil Procedure.
In order to decide the controversy involved in the present case, it is necessary to quote the relevant provisions of Section 12 of the Contempt Court Act and Order XXI Rule 32(5) C.P.C.
Section 12 of the Contempt Court Act, 1971:-
Section 12. Punishment for contempt of court :- (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with find which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person.
Provided that nothing contained in this sub section shall render any such person liable to such punishment if he proves that ht contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5)Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer."
Order XXI Rule 32(5) C.P.C.:-
"(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree."
From the bare reading of the above two provisions, it is clear that the proceedings under both the provisions are analogous. The only distinction is that as the legislature, in its wisdom, has enacted a special provision enacting the provisions of Order XXI Rule 32(5) C.P.C., it would prevail over the provisions of the contempt of Courts Act. Though the High Court, by virtue of the provisions of Section 10 or 12 of the Act, 1972 can initiate the contempt proceeding even for disobedience of the injunction order granted by the Civil Court, but the exercise of such power is discretionary and generally does not require to be exercised in view of the special power conferred upon the Civil Court.
In the case of Andre Paul Terence Ambard Vs. Attorney General for Trinidad and Tabago, AIR 1936 PC 141, the Privy Council has observed that the proceedings under the Contempt of Courts Act are quasi-judicial in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. In Sukhdeo Singh Vs. Hon'ble the Chief Justice Teja Singh and Hon'ble Justice the Par Pepsu High Court at Patila, AIR 1954 SC 186, the Supreme Court has taken the same view.
A Full Bench of Punjab and Haryana High Court, in Sher Singh Vs. R.P. Kapoor, AIR 1968 pb. 217, has held that the contempt proceedings are by all means, a quashi-criminal in nature. The applicant must prove his allegations beyond reasonable doubt and the alleged contemnors are entitled to the benefit of doubt. The same view has been taken by the Division Bench of Madras High Court in B. Yegnaryaniah, AIR 1974, Mad. 313, and by the Lahore High Court in Homi Rustom G. Pardiawala Vs. Sub-Inspector Baig and others, AIR 1941 Lah. 196.
In Jawand Singh Hakum Singh Vs. Om Prakash, AIR 1959 pb 632, the Punjab and Haryana High Court, while dealing with a contempt matter, had observed that guilt of a person of having committed contempt of Court, must rest on reasonable certainly, Suspicion, no matter how strong and speculative.
In Chhotu Ram Vs. Urvashi Gulati and others, (2007) 7 SCC 530, the Hon'ble Supreme Court held that the burden and standard of proof in contempt proceeding, being quasi-criminal in nature is the standard of proof required in criminal proceedings for the reason that contempt proceedings are quasi-criminal in nature.
For the foregoing reasons, I am of the opinion that as in the present case, the applicants have got efficacious remedy available under Order XXI Rule 32(5) C.P.C., so for alleged violation of the judgment and decree dated 09.01.2001 passed by the Civil Judge(J.D.), Hawali, Lucknow in Regular Suit No. 633 of 1999, the present contempt petition filed under Section 12 of the Contempt Court Act is not maintainable, accordingly the same is dismissed.
No order as to costs.
Order Date :- 10.2.2011 krishna/*