C.Shakunthala & Ors vs H.P.Udayakumar & Anr

C. Shakunthala & Ors. .... Appellant(s)

Versus

H.P. Udayakumar & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 18.06.2008 passed by the Division Bench of the

High Court of Karnataka at Bangalore in Criminal CCC No. 32

of 2005 whereby the High Court dismissed the petition of the

appellants herein.

1 3) Brief facts:

(a) The appellants herein are the children and legal

representatives of late M. Channappa, who was the original

complainant/landlord before the High Court. Late M.

Channappa was the owner of the property bearing Old Survey

No. 39/2A, Yediur Village, Bangalore South Taluk. He let out

the eastern half portion of the said property to one Kachu

Krishna Achari and western portion to one P.V. Lingaiah on

rent. In view of the extension of the City, the property fell into

the Bangalore City limits and is presently situated on the K.R.

Road and bears No. 2038/A.

b) Late M. Channappa initiated eviction proceedings against

both the said tenants and Kachu Krishna Achari came to be

evicted pursuant to the decree granted by the competent

court. The order of eviction was challenged by P.V. Lingaiah in

HRRP No. 559 of 1996 before the High Court of Karnataka

which came to be dismissed on 29.02.2000 granting two years

time to vacate the tenanted premises subject to filing an

undertaking by him.

2 c) Pursuant to the said order, Lingaiah filed an undertaking

to vacate the tenanted premises and deliver vacant possession

to late M. Channappa. In the meantime, Lingaiah approached

this Court by way of a special leave petition which also came

to be dismissed.

d) Mr. Lingaiah failed to adhere to the undertaking given by

him to vacate the premises within two years, instead in

collusion with his son L. Suresh and H.P. Udayakumar,

respondent No.1 herein, he created a sale deed dated

22.02.2001 whereby respondent No.1 is purported to have

acquired a portion of the tenanted premises. Significantly,

respondent No.1 is the business partner of L. Suresh, son of

Lingaiah.

e) Thereafter, late M. Channappa initiated contempt

proceedings against Lingaiah, his son Suresh and H.P.

Udayakumar, respondent No.1 herein. Since respondent No.1

and Suresh were not parties to the earlier petition, contempt

proceedings were dropped against them and the High Court by

its order dated 06.02.2004 convicted and sentenced Mr.

Lingaiah to undergo simple imprisonment for three days.

3 Being aggrieved with the order of the High Court, late

Channappa filed an appeal before this Court for enhancement

of the sentence awarded to Mr. Lingaiah which is still pending.

f) As Mr. Lingaiah failed to vacate the tenanted premises,

late Channappa also filed execution proceedings before the

Court of Small Causes, Bangalore under Order 21 of CPC.

The Court of Small Causes issued delivery warrant for delivery

of possession of the tenanted premises.

g) While the matter was pending, on 18.12.2004, the

respondent No.1 herein filed an application under Order 21

Rule 97 to 101 read with Section 151 CPC in Execution

Petition No. 2658 of 2004 seeking adjudication of his right,

title and interest in respect of the property in question

contending that he was the absolute owner of the said

property in terms of the sale deed dated 22.02.2001 and that

late M. Channappa had no interest in the said property. He

also contended that as late M. Channappa attempted to

interfere with the property, he filed O.S.No. 15265 of 2002

before the Civil Court for permanent injunction wherein the

court had granted an ad interim order of status quo.

4 h) It is evident that respondent No.1 is the business partner

of the son of Lingaiah and he has been set up to file

application to protract the proceedings.

i) In the light of the stand taken by respondent No.1,

Channappa filed O.S. No. 3814 of 2005 against respondent

No.1 for delivery of the vacant possession of the property.

j) The Executing Court vide judgment dated 08.06.2005

dismissed the application filed by respondent No.1 after

adverting to the material on record. Respondent No.1

questioned the said order before the High Court by filing HRRP

No. 285 of 2005.

k) The High Court by judgment dated 30.06.2005 dismissed

the said petition on the ground that eviction order having

passed in the year 1996, respondent No.1 who was

obstructing the execution of the decree having purchased the

property subsequently in the year 2001 interfered with the

order of the Executing Court which is not warranted.

l) On 26.09.2005, respondent No.1 and his brother H.P.

Ashok Kumar, respondent No.2 filed another application in the

said Execution Petition opposing the same.

5 m) In the circumstances, late M. Channappa filed a petition

under Section 11(2) of the Contempt of Courts Act, 1971

before the High Court. After hearing both the parties, the High

Court by its order dated 09.06.2006 held that there was a

prima facie case against the respondents to proceed further

and frame charge and try them for criminal contempt for

abuse of the process of the law. On 17.01.2008 M.

Channappa passed away and the High Court permitted the

petitioners therein to come on record.

n) The High Court, by final impugned judgment dated

18.06.2008 dismissed Crl. CCC No. 32 of 2005 and acquitted

the respondents by holding that the grounds made out in the

second application is under different circumstances, the

identity of the property is disputed and that the respondents

cannot be attributed with unlawful intention for abuse of the

process of the court.

o) Being aggrieved, the appellants herein preferred this

appeal by way of special leave.

6 4) Heard Mr. Basava Prabhu S. Patil, learned senior counsel

for the petitioners and none appeared for the respondents.

5) The point for consideration is whether the impugned

judgment of the High Court dismissing Crl. CCC No. 32 of

2005 after recording that prima facie case was made against

the respondents, thereafter framing charges and recording

evidence of the parties, without adverting to the plea of the

parties and evidence on record, by concluding that the second

application was under different circumstance being contrary to

Rule 13 of the High Court of Karnataka (Contempt of Court

Proceedings) Rules 1981 (in short `the Rules') read with

Section 264 occurring in Chapter XXI of the Code of Criminal

Procedure, 1973 (in short `the Code) is legally sustainable.

6) Since we have already narrated the facts of the case,

there is no need to refer the same once again. Mr. Basava

Prabhu S. Patil. learned senior counsel for the appellants

submitted that even as early as on 09.06.2006, the Division

Bench of the High Court based on the materials placed

concluded that a prima facie case against the

respondents/accused have been made out for proceeding

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further and directed framing of charge to try them for criminal

contempt for abuse of process of law, another coordinate

Bench while passing the impugned order dated 18.06.2008,

without reference to any of the materials, simply dismissed the

petition filed by the petitioners therein-appellants herein.

Perusal of the initial order dated 09.06.2006 shows that the

Division Bench considered the contempt petition filed against

the accused after obtaining the consent of the learned

Advocate General in writing under Section 15-1(a) of Contempt

of Courts Act, 1971. Pursuant to service of notice on the

respondents, they submitted their objections along with

certain documents in support of their defence. It was

contended that the action complained of do not constitute

abuse of process of the Court for taking cognizance in the

matter and to proceed further for framing the charge.

7) As rightly pointed out by the Division Bench in the order

dated 09.06.2006 in terms of Rule 8(ii)(a) of Contempt of

Courts Rules, 1981, the matter was heard initially to find out

whether there is a prima facie case to frame the charge against

the accused persons. The complainant placed strong reliance

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on the allegations made in the complaint and also the order

passed by the trial Court in the earlier application filed by the

first accused-Udaya Kumar in respect of property against

which a decree is sought to be executed by the complainant in

the execution proceedings. In the preliminary order, the Court

had also referred to the observation of the Executing Court

dated 08.01.2005. Ultimately, the Executing Court has

convicted the judgment debtor and others. The matter is still

pending before this Court. The complainant has also alleged

that after the order passed on the application filed by the first

accused became final, a decree was sought to be executed to

take the possession of the premises. At this juncture, the

second accused has filed another application taking another

plea and according to his counsel, the subject matter covered

in the application is different from the earlier one and that the

identity covered in the eviction petition and the claim made in

the application filed by the first accused before the Executing

Court is entirely different. In other words, it is the defence

that the order passed on the earlier application filed by the

first accused does not come in the way of Executing Court to

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independently consider the application of the second accused

in order to determine the rights of the parties. In the

preliminary order, the Division Bench rejected the said

contention and prima facie found that it is untenable in law in

view of the earlier application filed under Order XXI Rule 9 of

Civil Procedure Code, 1908 by the first accused and concluded

that the earlier application and the present application have to

be treated as one and the same. After adverting to the

respective stand of the parties, various decisions of this Court,

in the preliminary order dated 09.06.2006, the Division Bench

has concluded thus:

"10. We have carefully perused the record and the

documents produced by the complainant and also the

accused persons. After careful perusal of the averments

made in the complaint and the statement of objections and

the orders passed by this court in the eviction proceedings

and also the order passed in the proceedings and the law

laid down by the Supreme Court in the cases referred to

supra, upon which strong reliance is rightly placed by the

complainant, we feel that there is prima facie case against

the accused to proceed further, frame charge and to try them

for criminal contempt for abuse of the process of law.

11. Call after two weeks for framing charges against the

accused."

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That was the position on 09.06.2006. Meanwhile, Mr. M.

Channappa, who was the complainant in CCC No. 32 of 2005

passed away and his children were brought on record as his

legal representatives. Inasmuch as the impugned order does

not contain adequate reasons and materials as found in the

preliminary order by another coordinate Bench dated

09.06.2006, it is useful to extract the exact impugned order of

the Division Bench which is as follows:

"Without reference to merit of the contents taken in the

second application, we hold to suffice that the grounds made

out in the second application is under different

circumstances. The identity of the property is disputed.

Factually, we find that the accused cannot be attributed with

unlawful intention of abuse of process of the court. In the

view of the matter we do not find any good ground to hold

the contempt u/s 2(e) of the Contempt of Courts Act.

Accordingly, petition is dismissed and the accused is

acquitted."

8) We have already referred to the stand of the complainant,

his specific assertion with reference to earlier orders and the

defence of the respondents/accused as well as the prima facie

conclusion by the Division Bench that the complainant has

made out a case against the accused to proceed further and

adjourned the matter for two weeks for framing charges.

When such is the position, it is not understandable how

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another coordinate Bench after two years without any

discussion and adverting to the relevant materials relied on by

earlier coordinate Bench passed a cryptic order by dismissing

the contempt petition. We are satisfied that when the

coordinate Bench on earlier occasion, that is, on 09.06.2006,

based on the acceptable materials prima facie concluded that

charges have to be framed, it is but proper by the present

Bench to arrive and take a final decision in the light of the

materials formulated by the earlier Bench. We are not saying

that the complainant has made out a case for guilty of

contempt of courts but the prima facie conclusion arrived by

the earlier Bench in the year 2006, based on the acceptable

materials, cannot be ignored by another Bench at the time of

the passing the final order as if it is an Appellate Court. In

view of the same, we have no other option except setting aside

the impugned order and remitting the matter to the High

Court for passing fresh order.

12 9) In the light of what is stated above, the impugned order

of the High Court dated 18.06.2008 made in Crl. CCC No. 32

of 2005 is set aside and the matter is remitted to it for fresh

disposal. We request the High Court to restore Crl. CCC No.

32 of 2005 on its file and dispose of the same on merits in

accordance with law by passing a speaking order after

affording opportunity to both the parties. The appeal is

allowed to this extent.

...........................................J.

(P. SATHASIVAM)

...........................................J.

(J. CHELAMESWAR)

NEW DELHI;

JANUARY 16, 2012.

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