Nazeehudeen M vs. M. Basheer (Cont.Case(C).No.14 of 2018) in RFA No.53/2016(F), High Court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 1ST DAY OF MARCH 2018 / 10TH PHALGUNA, 1939 Cont.Case(C).No. 14 of 2018 IN RFA. NO.53/2016(F) (ORDER DATED 11.11.2016 IN IA NO.2674/2016 IN RFA NO. 53/2016 of HIGH COURT OF KERALA) ## PETITIONER/2ND APPELLANT NAZEEHUDEEN. M AGED 51 YEARS,S/O.MOHAMMED KASIM,CHINNU MANZIL, KIZHUVILOM.P.O,MAMAM,ATTINGAL. BY ADV.SRI.G.S.REGHUNATH ## RESPONDENT/2ND RESPONDENT M. BASHEER, AGED 71 YEARS,S/O.MOHAMMED KASIM, NAVABHARATH H.S.SCHOOL, KIZHUVILOM.P.O.,ATTINGAL-695104. BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL KUM.ANAGHA LAKSHMY RAMAN THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 21.02.2018, THE COURT ON 01-03-2018 DELIVERED THE FOLLOWING: CONT. CASE (C) NO.14 OF 2018 ## APPENDIX ## PETITIONER'S EXHIBITS: ANNEXURE I TRUE COPY OF JUDGMENT DATED 18.8.2015 IN OP NO.433/2011 & O.S.NO.1/2013 OF THE II ADDL. DISTRICT JUDGE, KOLLAM ANNEXURE II CERTIFIED COPY OF ORDER DATED 11.11.2016 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE III TRUE COPY OF THE ORDER DATED 19.1.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE IV TRUE COPY OF THE ORDER DATED 1.2.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE V TRUE COPY OF THE ORDER DATED 8.2.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE VI TRUE COPY OF THE ORDER DATED 16.2.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE VII TRUE COPY OF THE ORDER DATED 22.2.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE VIII TRUE COPY OF THE ORDER DATED 27.2.2017 IN IA NO.2674/2016 IN RFA NO.53/2016(F) OF THIS COURT ANNEXURE IX TRUE COPY OF JUDGMENT DATED 20.03.2017 IN RFA NO.53/2016 & CROSS OBJECTION NO.22/2017 OF THIS COURT ANNEXURE X COPY OF THE RELEVANT PAGES OF THE MINUTES BOOK PRODUCED BY RESPONDENT BEFORE THE DISTRICT COURT. ANNEXURE XI TRUE COPY OF THE COMPLAINT DATED 1.5.2017 FILED BEFORE THE POLICE ANNEXURE XII TRUE COPY OF THE COMPLAINT DATED 27.1.2017 FILED BEFORE THE POLICE ANNEXURE XIII TRUE COPY OF THE COMPLAINT DATED 27.1.2017 FILED BEFORE THE POLICE ANNEXURE XIV TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 15.5.2017 ISSUED TO SRI.SAJEEV S. APPOINTING HIM AS PRINCIPAL DATED 15.3.2017 ANNEXURE XV TRUE PHOTOCOPY OF THE ADVERTISEMENT APPEARED IN MALAYALA MANORAMA DAILY NEWSPAPAER DATED 2.4.2017 ANNEXURE XVI TRUE PHOTOCOPY OF THE COVERING LETTER AND THE RECORDS RECEIVED UNDER RIGHT TO INFORMATION ACT. RESPONDENT'S EXHIBITS NIL //TRUE COPY// P.S. TO JUDGE ## **A.HARIPRASAD, J. -------------------------------------Cont. Case (C) No.14 of 2018 -------------------------------------Dated this the 1[st] day of March, 2018** ## **JUDGMENT** 2[nd] appellant in R.F.A.No.53 of 2016 (F) is the petitioner in this contempt case, filed under Sections 10 and 12 of the Contempt of Courts Act, 1971 read with Rules 3 and 4 of the Contempt of Courts (High Court of Kerala) Rules. 2. Gist of allegations in the petition are thus: Petitioner herein is the 2[nd] petitioner in O.P.No.433 of 2011 on the file of the Additional District Judge, Kollam. The original petition is filed under Section 25 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 to remove the respondents 2 to 4, who illegally acted as office bearers of 1[st] respondent society, to appoint new office bearers and to frame a scheme for governing the society. 3. The society is conducting a higher secondary school in the name of Navabharath Residential School in 3.45 acres of land. According to the allegations, the respondent herein illegally acted as manager of the school and defalcated money belonging to the society. He kept other members away from administration of the society by using muscle power. 4. The Additional District Judge partly allowed the petition and directed a scheme to be prepared for the society. A suit, considered along 2 Cont.Case (C) No.14 of 2016 with the above original petition, was dismissed holding that the petitioner is a member of the trust. Annexure-I is copy of the common judgment in the original petition and original suit. 5. Challenging the said judgment, the petitioner and others filed R.F.A.No.53 of 2016 before this Court. Respondents filed cross objection in the matter. In the appeal the petitioners filed I.A.No.2674 of 2016 for a temporary injunction restraining the respondents 2 to 7 therein from meddling with the assets of the society or pledging its properties and taking loans from any institution or doing anything to change the secular fabric and conduct of the society and its institutions by conducting any religious classes or courses or doing anything to obstruct the petitioners from entering the premises of the Navabharath School, its office and also restraining the respondents 2 to 7 from interfering with the conduct of the school or its assets pending disposal of the appeal. As per order dated 11.11.2016 on I.A.No.2674 of 2016, this Court passed an interim order as prayed for. Annexure-II is copy of the order. The order was extended from time to time. Annexures-III to VIII are copies of the orders extending the interim order. 6. Thereafter the appeals were heard on merits and as per Annexure-IX common judgment this Court remanded the case to the lower court for a fresh disposal. 3 Cont.Case (C) No.14 of 2016 7. It is the allegation that when the injunction order referred to above was in force, the respondent herein (2[nd] respondent in R.F.A.No.53 of 2016) flagrantly and willfully violated the orders. Though the respondent approached the Supreme Court with S.L.P.Nos.13919-13921 of 2017, the Court dismissed the same by order dated 04.05.2017. 8. In paragraph 11 of the petition the contumacious acts said to have been done by the respondent are narrated as follows: _“The respondent in flagrant violation of the injunction order passed by this Honourable Court as Annexures II to VIII, meddled with the affairs of the society. The petitioners in the O.P. Were not allowed to enter inside the premises of the school in flagrant violation of the orders of this Honourable Court. The respondent was conducting the affairs of the school which became clear to the petitioner only when the respondent produced an illegal minutes book before the District Court when evidence was taken after remand. Copy of the relevant pages of the minutes book is produced as Annexure-X.”_ 9. It is further contended that the petitioner and other members were obstructed from entering the premises of the school for which they filed Annexures-XI to XIII complaints before the police. According to the petitioner, the act of respondent is a wanton disobedience of the order and therefore, he is liable to be proceeded under the provisions of the 4 Cont.Case (C) No.14 of 2016 Contempt of Courts Act. 10. Respondent entered appearance and filed a counter affidavit opposing the allegations in the petition. In paragraph 2, the respondent has clearly stated that he had understood the scope of the order passed by this Court. According to the respondent, the petitioner sought injunction in a specific manner, that is to say that the respondent shall not meddle with the assets of the society, of which he is the secretary. However, in the absence of any order restraining him from discharging lawful duties like managing the affairs of the society, no violation or contempt of the orders of this Court has been made out. Respondent would further contend that managing affairs of the society is different from meddling with the assets of the society. Petitioner had no dispute that the respondent was managing the affairs of the society. 11. According to the respondent, petitioner seems to have equated the clauses “meddling with the affairs” and “meddling with the assets”. Assuming that the allegations in the petition are true, there is no violation of Annexure-II order or any other order of this Court. 12. Allegation that the petitioners in the original petition were not allowed to enter the school premises in flagrant violation of the orders of this Court is not correct. According to the respondent, he has not committed any act of contempt and has not violated any orders of the 5 Cont.Case (C) No.14 of 2016 court. He has also stated that per chance if this Court finds that the respondent has violated any orders of this Court, he would submit that it was not willful or deliberate. It is the submission that the respondent always endeavoured to respect the majesty of the court. For these reasons, he sought dismissal of the petition. 13. Heard the learned counsel for the petitioner and the respondent. 14. Annexure-II order, which is said to have been deliberately violated, would show that the respondents are restrained by an order of injunction from (i) meddling with the assets of the 1[st] respondent society or pledging its properties and taking loans from any institution, (ii) doing anything to change the secular fabric and conduct of the 1[st] respondent and its institution by conducting any religious classes or courses, (iii) doing anything to obstruct the petitioners from entering the premises of Navabharath School and its office and (iv) interfering with the conduct of the school or its assets. 15. Learned counsel for the petitioner contended that the respondent has meddled with the affairs of the society against the terms of the injunction order. The averments in the petition quoted above would show that the respondent in flagrant violation of the injunction order meddled with the affairs of the society. What is sought for in the injunction 6 Cont.Case (C) No.14 of 2016 petition is to restrain the respondents from meddling with the assets of the society, which has been amplified by the subsequent clauses like restriction on pledging assets or taking loans from any institution, etc. Learned counsel contended that the respondent, being the secretary of the institution, has to function as per the stipulations in the bylaw and therefore there cannot be a complaint that he, in violation of the terms of the injunction order, meddled with the affairs of the society. In other words, managing the society as secretary is a bounden duty for the respondent and it cannot be termed as an act in violation of the terms of injunction order. In fact, no injunction is passed against the respondent from discharging his functions touching upon the affairs of the society. After hearing both sides, I am satisfied that the contention of the petitioner that the respondent has meddled with the affairs of the society can never be a ground to hold him guilty for contempt of court. There is no material placed on record to show that in violation of the temporary injunction order passed as per Annexure-II, the respondent has meddled with the assets of the 1[st] respondent society. The arguments advanced by the learned counsel for the petitioner based on Annexure-X that the respondent functioned as secretary and at times unauthorisedly as manager of the institution cannot be described as an act in violation of the terms of injunction order warranting any action against him under the Contempt of Courts Act. 7 Cont.Case (C) No.14 of 2016 16. Another point highlighted by the learned counsel for the petitioner is that the respondent prevented the petitioner and his wife (3[rd] appellant in the R.F.A.) from entering the school and discharging their functions as the office bearers of the trust. Police complaints were filed as evidenced from Annexures-XII and XIII alleging obstruction caused by the respondent. Annexures-XII and XIII are dated 27.01.2017. Except producing the complaints no other material is produced to show that after investigation the police laid a charge against the respondent for causing obstruction to the petitioner and his wife. In the counter affidavit, the contentions have been specifically refuted by the respondent. Therefore, this contention is also not established against the respondent. 17. Learned counsel for the respondent contended that if at all the petitioner was serious, he could have moved a petition before the court below under Order XXXIX Rule 2-A of the Code of Civil Procedure, 1908 alleging disobedience, instead he has approached this Court with a petition of this sort by raising falsehood. Reliance is placed by the learned counsel for the respondent on **Kanwar Singh Saini v. High Court of Delhi ((2012) 4 SCC 307)** to urge the following propositions: _“17.Application under Order 39 Rule 2-A CPC lies only where disobedience/breach of an injunction granted or order complained of was one that is granted by the court under Order 39 Rules 1 and 2 CPC, which is_ 8 Cont.Case (C) No.14 of 2016 _naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. (Vide: Dr. A.R. Sircar v. State of U.P. - 1993 Supp (2) SCC 734 : 1993 SCC (L&S) 896: (1993) 24 ATC 832; Shiv Shanker v. U.P. SRTC - 1995 Supp (2) SCC 726 :1995 SCC (L&S) 1018 : (1995) 30 ATC 317; Arya Nagar Inter College v. Sree Kumar Tiwary – (1997) 4 SCC 388 : 1997 SCC (L&S) 967 : AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India - (1998) 3 SCC 376 : AIR 1998 SC 1566; and Jaipur Municipal Corpn. v. C.L. Mishra - (2005) 8 SCC 423). 18. In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt_ 9 Cont.Case (C) No.14 of 2016 _proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39 Rule 2-A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree._ _19. In Food Corporation of India v. Sukh Deo Prasad ((2009) 5 SCC 665 : (2009) 2 SCC (Civ) 639 : AIR 2009 SC 2330), this Court held that the power exercised by a court under Order 39 Rule 2-A is punitive in nature, akin to the power to punish for civil contempt under the 1971 Act. Therefore, such powers should be exercised with great caution and responsibility. Unless there has been an order under Order 39 Rule 1 or 2 CPC in a case, the question of entertaining an application under Order 39 Rule 2-A does not arise. In case there is a final order, the remedy lies in execution and not in an action for_ Cont.Case (C) No.14 of 2016 10 _contempt or disobedience or breach under Order 39 Rule 2-A. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit._ Having regard to the facts and circumstances as borne out from the petition and counter affidavit, I am of the view that the petitioner failed make out any ground for initiating contempt of court action against the respondent. Hence the petition is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**