Heard both sides.
2.Plaintiff is the applicant in all these applicants. A.No.588 of 2009 is filed by the applicant/plaintiff, seeking to punish the respondents for having willfully disobeyed the order of this Court, dated 12.1.2009 in O.A.No.14 of 2009 in C.S.No.32 of 2009.
3.The applicant/plaintiff filed the suit in C.S.No.32 of 2009, seeking for a mandatory injunction, directing the defendants to conduct election as per
Article 49 of the Constitution of the Church of South India, Madras Diocese in all future sessions of Madras Diocesan Council including the present session for 2009 in the presence of an Advocate Commissioner, who may be appointed by this Court. A further relief of mandatory injunction directing the defendants to issue the list of voters along with the copy of the amended Constitution of Church of South India, Madras Diocese to all the voters well in advance with an intimation of the session of Madras Diocesan Council as per the Constitution of Church of South India.
4.The suit was admitted on 9.1.2009. Pending the suit, O.A.Nos.14 of 2009, A.Nos.102 and 103 of 2009 were filed for interim relief. Even as per the averments in the plaint, it was stated that the first defendant had issued an invitation in respect of the 32nd Sessions of Madras Diocesan Council meeting to be held between 13th and 16th January, 2009. It is at that meeting, the office bearers have to be elected. The first defendant had nominated Tellers for conducting the election. It was stated that such nominations are done only with the henchmen of the first defendant. Therefore, for restoring purity in election, the suit and the application were filed.
5.In O.A.No.14 of 2009, the prayer is for an interim injunction, restraining the respondents and their men or any one authorised by them, from declaring the results of the election to be held for various committees of CSI Madras Diocesan during the 32nd Session of Madras Diocesan Council to be held between 13th and 16th January, 2009.
6.A.No.102 of 2009 is for the appointment of an Advocate Commissioner to be present during the Sessions to be held between 13th and 16th January, 2009 at the Life Auditorium, No.17, Balfour Road, Kilpauk, Chennai-10. A.No.103 of 2009 is for a direction to the Commissioner of Police, Chennai to render police protection to the Advocate Commissioner.
7.When the application for interim injunction in O.A.No.14 of 2009 came up for hearing, this Court, by an order, dated 12.1.2009, passed an ex-parte order. It expressed an opinion that it was not inclined to appoint an Advocate Commissioner for overseeing the election. But it was directed that the results of the election for various committees of CSI Madras Diocesan Council shall be declared only with permission of this Court. Notice was directed to be issued to the respondents returnable by 19.01.2009 and the order copy was directed to be issued on 12.01.2009 itself.
8.It is the stand of the applicant/plaintiff that this ex-parte order was issued and the order copy was obtained from this court on the same night. The counsel sent the order copy along with the copy of the plaint, affidavit and the judges summons by Speed Post with acknowledgment due. It was alleged that having come to know about the order passed by this Court, the respondents delayed receiving the said post as well as the telegram and the Fax message sent by the counsel. The elections for the post of Vice President, Secretary and Treasurer were held on 13.01.2009 at the notified place. One of the member of the plaintiff Association, who was present, informed the first respondent about the passing of the order by this Court and requested him to comply with the order. When he tendered a copy of the order along with a covering letter, the first respondent refused to receive the same with oblique motive.
9.It was alleged that the first respondent stated that he will not receive the letter unless it is served at the official address of the first respondent at No.226, Cathedral Road, Chennai-89. A telegram was also sent to the respondents at the venue of the 32nd Session which was being held from 4.00 p.m. onwards on 13.01.2009. At about 7.30 p.m., though the respondents were aware of the order of this court, he declared the results without seeking permission from this court. Many members who were present at that time objected for declaration of results.
10.A protest letter was also sent to the first respondent by registered post with acknowledgment due. It was also stated that on 14.01.2009, the order of prohibiting the results was published in the newspapers including The Hindu, Times of India and Dina Malar. It was also stated that without complying with the order, the results were declared on 13.01.2009 and 15.01.2009. The respondents' receiving the letters sent by the counsel, belatedly was motivated. Since the respondents were regular readers of newspapers, they cannot feign ignorance about the order passed by this court. There were several contempt petitions pending against the respondents in various courts. Because of the willful disobedience of the order of this court, the respondents should be punished.
11.On notice from this Court, both respondents have filed counter affidavits. The first respondent in his counter affidavit, dated 16.02.2009 denied that he was aware of the court's order. It was stated that the applicant/plaintiff association had no locus standi to institute any proceedings. It was also stated that the materials sent by the counsel for the applicant was received by the respondents only on 17.01.2009 at the office of the respondents. Between 13.01.2009 and 16.01.2009 were holidays for the office and all the employees of the Diocesan office were absent. The office itself was closed in view of the council meeting. No officials were available at the office to receive any communication. The allegation that the respondents had prior knowledge about the order passed by this court was denied. It was also stated that the respondents never had intention to disobey the order of this court. He did not receive the fax message or telegram sent by the applicant. Mr.Albert Jeyaraj, who is the member of the council, never informed him about the order passed by this court and he had not chosen to swear to an affidavit to that effect.
12.It was also denied that a copy of the order along with the covering letter was given to him and that he refused to receive the same. No such incident had taken place on that day. The proceedings on 13.01.2009 took place in the Auditorium. The members have registered their names at 8.30 a.m. and subsequent to breakfast, there was inaugural worship. After confirmation of the minutes of the earlier committee meeting, elections were conducted in the afternoon after following due procedure. A review of the committee was also conducted. No one in the meeting had objected to the declaration of results. The respondents did not read the newspapers containing this news item. It was due to long holidays, postmen never visited the office. The respondents also filed the minutes of the proceedings to show that they are innocent and have not violated the order of this court. The supporting affidavit of Mr.S.D.Soundararaj cannot be believed. Since Soundararaj had contested in the Bishopric election against the first respondent in the year 1995 and lost it, may be with wreak vengeance, he must be coming with such falsehood. The entire congregation members were awaiting for the result of the 32nd Session Diocesan council. The respondents are law abiding citizens and having greatest respect and regard for this court and they have not committed any violation of the court's order.
13.Likewise, the second respondent has also filed his counter affidavit, dated 16.02.2009 with similar averments.
14.Ms.Lita Srinivasan, learned counsel appearing for the applicant submitted that a telegram was sent at the office of the respondents including covering letter. An affidavit filed as proof of service disclosed that a copy of the order being sent privately. But there is no acknowledgment receipts from the respondents was produced.
15.The respondents have also produced a letter, dated 16.01.2009 addressed by Mr.S.D.Sundararaj and Albert Jeyaraj to the first respondent allegedly informing him about the court's order. The said letter though said to have been given on 16.01.2009 at 10.00 a.m., the acknowledgment in the letter shows that it was received by the respondents on 19.01.2009. The supporting affidavit of S.D.Sundararaj in para 3 shows that it was given at 14.30 hours on 16.01.2009 but the letter produced shows the time as 10.00 AM. Further, it also reveals that it was posted to the first respondent. Therefore, it can be safely said that there is no credible evidence to show that the respondents were made aware of the order of this court and despite the same that the respondents have committed any willful disobedience of the order of this court. Hence they are not liable to be punished under Order 39 Rule 2(A) CPC.
16.In case of an order of injunction, unless a party has knowledge of injunction, he could not be penalized for disobeying it. It is in this context necessary to refer to the judgment of the Supreme Court in Mulraj Vs. Murti Raghunathji Maharaj reported in AIR 1967 SC 1386. The relevant passage found in paragraph 8 of the said judgment may be usefully reproduced below:
"8....There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it...." (Emphasis added)
17.The Supreme Court has also laid down guidelines as to how an ex-parte order of injunction can be passed by the court in terms of Order 39 Rule 1 and the compliance of Order 39 Rule 3, vide its judgment in A.Venkatasubbiah Naidu Vs. S.Chellappan and others reported in (2000) 7 SCC 695. It is necessary to refer to paragraphs 14 and 15 of the said judgment, which is as follows:
"14.Learned Senior Counsel for the respondents then contended that an order granting injunction without complying with the requisites envisages in Rule 3 of Order 39 be void. Rule 3 reads thus:
"3.The court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-
(a)to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
(i)a copy of the affidavit filed in support of the application;
(ii)a copy of the plaint; and
(iii)copies of documents on which the applicant relies, and
(b)to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."
15.What would the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39. In our view such an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party. "
(Emphasis added) The said procedure contemplates a personal delivery of the order and the same being sent by post. Since the applicant had sent the order only by post he takes the risk of attributing knowledge to the opposite party. The applicant was fully aware that between 13.01.2009 and 16.01.2009 it was Pongal holidays and that the Department of Posts may not function.
18.When a person complains breach of court's order, he must allege deliberate and contumacious disobedience of the court's order. Unless those allegations are proved, a contempt cannot be said to have been made out. The disobedience of the order, the act or omission have to be judged having regard to the facts and circumstances of each case. The Supreme Court vide its judgment in C.Elumalai and others Vs. A.G.L.Irudayaraj and another reported in (2009) 4 SCC 213 dealt with the scope of punishing a person under Order 39 Rule 2-A. It is necessary to extract the following passage found in paragraph 6 of the said judgment, which is as follows:
"6."56.The next question is whether for disobedience of the order passed by this Court, the respondent contemnors are liable to punishment. In this connection, we may refer to some of the legal provisions.
Article 129 of the Constitution declares this Court (Supreme Court) to be 'a court of record [having] all the powers of such a court including the powers to punish for contempt of itself'.
57.Clause (c) of Section 94 of the Code of Civil Procedure, 1908 enacts that in order to prevent the ends of justice from being defeated, the court may, commit the person guilty of disobedience of an order of interim injunction to civil prison and direct his property to be attached and sold. Rule 2-A of Order 39 as inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) reads thus:
'2-A. Consequence of disobedience or breach of injunction.- (1)In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the court granting the injunction or making the order, or any court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.
(2)No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.' * * *
60.In Ashok Paper Kamgar Union v. Dharam Godha this Court had an occasion to consider the concept of 'wilful disobedience' of an order of the Court. It was stated that 'wilful' means an act or omission which is done voluntarily and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. According to the Court, it signifies the act done with evil intent or with a bad motive or purpose. It was observed that the act or omission has to be judged having regard to the facts and circumstances of each case.
61.In Kapildeo Prasad Sah V. State of Bihar it was held that for holding a person to have committed contempt, it must be shown that there was wilful disobedience of the judgment or order of the court. But it was indicated that even negligence and carelessness may amount to contempt. It was further observed that issuance of notice for contempt of court and power to punish are having far-reaching consequences, and as such, they should be resorted to only when a clear case of wilful disobedience of the court's order is made out. A petitioner who complains (sic of a) breach of court's order must allege deliberate or contumacious disobedience of the court's order and if such allegation is proved, contempt can be said to have been made out, not otherwise. The Court noted that power to punish for contempt is intended to maintain effective legal system. It is exercised to prevent perversion of the course of justice."
In the present case, there is no proof that the respondents have willfully disobeyed the order of this Court.
19.The Supreme Court also dealt with the scope of Order 39 Rule 2-A CPC and held that only when there is disobedience of an injunction granted or breach of terms, an application under Order 39 Rule 2-A is maintainable and the person, who complains of disobedience or breach, has to clearly make out beyond any doubt that there was an injunction or order and there was disobedience of such an order. The court cannot proceed on the basis of surmises, suspicions and inferences. The power under Order 39 Rule 2-A should be exercised with great caution and responsibility. In this context, it is necessary to refer to the latest judgment of the Supreme Court in Food Corporation of India Vs. Sukh Deo Prasad reported in (2009) 5 SCC 665. It is useful to refer to paragraphs 24 and 38 of the said judgment, which is as follows:
"24.An application under Order 39 Rule 2-A of the Code is maintainable only when there is disobedience of any "injunction" granted or other order made under Rule 1 or Rule 2 of Order 39 or breach of any of the terms on which the injunction was granted or the order was made.
38.The power exercised by a court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act that that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the "order", on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility."
(Emphasis added)
20.If it is seen in this context of the above legal precedents, in the present case, the applicant has failed to establish that respondents were aware of the order passed by this Court. It is too dangerous for the Court to proceed on the basis that the respondents are newspaper readers and therefore, they must be aware of the order of this court. Even otherwise, there was no attempt to serve the respondents by any personal service. The order sent by the post in terms of Order 39 Rule 3 had admittedly reached the respondents only on 17.01.2009.
21.It was also an admitted case that there was postal holidays between 13.01.2009 and 16.01.2009 due to Pongal and therefore, one cannot blame the delayed postal service. The respondents have also stated that they have closed their office due to holidays and for the ensuing council session and that statement cannot be disbelieved.
22.In the light of the above facts and the legal precedents, the application in A.No.588 of 2009 cannot be countenanced by this Court. This Court had accepted the explanation offered by the respondents about their implicit faith in the court. Therefore, application in A.No.588 of 2009 stands dismissed.
23.With reference to O.A.No.14 of 2009 and A.Nos.102 and 103 of 2009, it is the admission of the applicant themselves that elections have taken place on the notified date and results have been announced. Therefore, at this juncture, these three applications have become infructuous. In the light of the same, all these three applications stand dismissed. However, there will be no order as to costs.
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