H Neelavathi Lalitha vs H Venkataramappa
2021 Latest Caselaw 3778 AP

                                                                      MVR,J
                                                          C.C.No.1422 of 2020
                                     1


              HON'BLE SRI JUSTICE M. VENKATA RAMANA

                CONTEMPT CASE No.1422 of 2020
                                IN
     S.A.M.P.No.36 of 2016 in SECOND APPEAL No.302 of 2013


ORDER:

The appellant in Second Appeal No. 302 of 2013 is the

petitioner. The respondents 1 to 3 therein are the respondents

herein.

2. The 4th respondent was added, though she is not a party to this

second appeal, as per the orders of this Court dated 09.08.2021 in

I.A.No.1 of 2021.

3. All these parties are closely related. The first respondent died

during pendency of this second appeal. The fourth respondent is his

wife. Respondents 2 and 3 and Sri Mohan Kumar, who is the husband

of the petitioner, are their children. Sri Mohan Kumar died long ago

within 1 ½ years of his marriage and of the petitioner.

4. The petitioner laid O.S.No.85 of 2006 on the file of the Court of

learned Senior Civil Judge, Adoni, Kurnool District, for partition of

the plaint schedule properties therein into four equal shares and to

allot one such share to her claiming that these properties belonged to

the joint family managed by the deceased first respondent. On

contest, it was decreed as prayed.

5. A.S.No.50 of 2011 was preferred by the respondents 1 to 3

against the decree and judgment of the trial Court on the file of the

Court of learned II Additional District Judge, Kurnool, at Adoni. It

was partly allowed holding that Serial No.1 in Item - 2 of the plaint MVR,J C.C.No.1422 of 2020

schedule, viz., the extent of Ac.4.23 cents in Sy.No.667/A2 was not

joint family property and excluded the same from partition, by the

decree and judgment dated 26.12.2012.

6. Aggrieved thereby, the appellant presented S.A.No.302 of 2013

and respondents 1 to 3 filed S.A.No.182 of 2013, which are now

pending on the file of this Court. By interim orders, passing of final

decree was stayed pending disposal of these appeals. Both these

second appeals are admitted.

7. Contending that the respondents 1 to 3 were attempting to

alienate the plaint schedule properties during pendency of the second

appeal, the petitioner filed S.A.M.P.No.36 of 2016 in S.A.No.302 of

2013 under Order 39 Rules 1 and 2 CPC to grant a temporary

injunction restraining them from alienating items 1 to 3 of the plaint

schedule properties. By an order dated 07.01.2016, this Court passed

the following order:

"This application is filed to restrain the respondents from alienating items 1 to 3 of schedule property which are subject matter of suit in O.S.No.85 of 2006.

Advocate for respondents sought time for filing counter and the learned counsel for petitioner submitted that suit is for partition and respondents are trying to alienate the property and if the property is alienated, it will lead to multiplicity of proceedings and 3rdparties rights would be involved in the suit.

Considering the submissions of both sides and in view of ensuing Pongal Vacation, post this matter on 22.01.2016 for counter, till then, there shall be interim injunction as prayed for."

8. By another order dated 03.02.2016, the above order of granting

interim injunction was extended until further orders.

MVR,J C.C.No.1422 of 2020

9. Now, the complaint of the petitioner is that inspite of the

above orders, which are prohibitory orders, the respondents

deliberately violated and alienated an extent of Ac.4.00 cts out of

Ac.9.32 cents in Sy.No.75, which is item No.1 of the plaint schedule

lands in favour of Sri Bathula Hanumanthu under a registered sale

deed dated 26.06.2019 through the 4th respondent. She further

complained that Ac.16.16 cents covered by Sy.Nos.222/A and 223 was

mortgaged to State Bank of India and the KDCC Bank, Kurnool raising

huge loans. Therefore, the petitioner requested to punish the

respondents under Sections 10 to 12 of Contempt of Courts Act for

wilfully and deliberately violating the order of interim injunction.

10. The respondents 2 and 3 resisted this version of the petitioner

denying the alleged act of contempt. In the counter affidavit of the

second respondent, it is stated that Ac.4.00 out of Ac.9.32 cents in

Sy.No.75 was sold by his mother, viz. the 4th respondent under

registered sale deed dated 26.06.2019 and that he was not the

executant of the same nor he received sale consideration thereunder

or any part of it. He further stated that this extent is owned by his

mother, who sold without his consent or knowledge to meet the

expenses of the family including medical expenditure for treatment

of their father, who was bedridden due to paralysis etc.

11. It is further stated that the third respondent is a married

woman, who is living away with her family at a different place, who

did not know this transaction as well as the order of this Court. It is

further contended by the second respondent that on account of

draught, to meet the domestic expenditure as well as the expenses MVR,J C.C.No.1422 of 2020

relating to agriculture it became inevitable to borrow loans from

private individuals and upon mortgaging the lands to the banks. He

further stated that during lifetime of Sri Mohan Kumar, husband of

the petitioner, he had borrowed about Rs.25.00 lakhs from private

individuals, which they had to discharge after his death. Denying that

they deliberately violated the orders of this Court, it is requested to

close this contempt case against them.

12. In the separate counter affidavit, the fourth respondent denied

that she deliberately and wilfully violated interim injunction orders of

this Court in entering into sale transaction with Bathula Hanumanthu

of Ac.4.00 cts., out of Ac.9.32 cents in Sy.No.75. She further

contended that she is not a party to this second appeal and at no

point of time the order of this Court was served to her. She further

claimed that she was not aware of the earlier orders of this Court till

filing of this contempt case. She too referred to the expenditure

incurred by the family for the purpose of treatment of her husband

and to meet the domestic needs, on account of serious drought

conditions.

13. Heard Sri A.V.Sivaiah, learned counsel for the petitioner, Sri

Butta Vijaya Bhaskar, learned counsel for respondents 1 to 3 and Sri

G.Subhash, learned counsel for the 4th respondent.

14. Now, the point to determine is „Whether the action of the

respondents with reference to the plaint schedule properties is in

contempt of the order of the Court granting interim injunction and if

they are liable for the same?‟ MVR,J C.C.No.1422 of 2020

15. The unfortunate widow of one of the sons of the first and 4 th

respondents had to institute the suit for partition claiming a share in

the alleged joint family properties and was successful at the trial

stage. In appeal, the first appellate Court confirmed the decree and

judgment of the trial Court with slight modification as stated above

and which she has chosen to challenge in this second appeal.

16. The dispute confined to the second appeal No.302 of 2013 is in

relation to Sl.No.1 of item 2 of plaint schedule, viz. Ac.4.23 cents in

Sy.No.667/A2. Other plaint schedule properties are not subject

matter of this second appeal. All the plaint schedule properties are

subject matter in S.A.No.182 of 2013. The petitioner is the first

respondent to S.A.No.182 of 2013. She did not choose to seek an

order of interim injunction in S.A.No.182 of 2013. Instead, she

choose such relief in S.A.No.302 of 2013 to which none of the

properties are concerned, regarding which the respondents are

allegedly alienating or encumbering. Nonetheless, the order of this

Court in S.A.M.P.No.36 of 2016 granting interim injunction is

continuing. The respondents 1 to 3 did not choose to file a petition

to vacate such order. Therefore, it is in force. The fist respondent

during his lifetime and respondents 2 and 3 being parties to this

second appeal are bound by this order.

17. Sale of Ac.4.00 cents in favour of Sri Bathula Hanumanthu by

the 4th respondent under a registered sale deed dated 26.06.2019 is

not in dispute. The 4th respondent is not a party to any of these

second appeals as of now. Obviously she was not served the orders in

S.A.M.P.No.36 of 2016 dated 07.01.2016.

MVR,J C.C.No.1422 of 2020

18. Sri A.V.Sivaiah, learned counsel for the petitioner referring to

her complaint and the conduct of the respondents in relation to the

facts and circumstances stated above, strenuously contended that

even though the 4th respondent is not a party to the second appeal,

she is bound by the orders of this Court in the circumstances, since

the sale of the land by her was a collusive transaction with the

assistance of respondents 1 to 3. In support of this contention,

learned counsel for the petitioner relied on PAVAN TALKIES,

NIZAMABAD v. SRI RAJESH KUMAR AND OTHERS1.

19. Sri C.V.Nagarjuna Reddy, J, in the above ruling upon

consideration of various judgments of Hon‟ble Supreme Court, Madras

High Court as well as a Division Bench of this Court covering Indian

Law and certain English decisions held that when there is a deliberate

attempt to over reach the court‟s order and wilfulness in the matter

to disregard such order when is apparent on the face, violated the

same, such party is equally liable for punishment along with other

parties to the proceedings.

20. The facts considered in the above ruling are completely

different from the present case on hand. Basing on the evidence, it

was found that there was wilful and deliberate contravention of the

order of the Court, whereby the contemnors were found guilty.

21. The fourth respondent is a rustic villager and stated to be 65

years old. In the circumstances, it is rather hard to find that she had

knowledge of any of the proceedings pending in this Court,

(2008) 6 ALT 279 MVR,J C.C.No.1422 of 2020

particularly, the restraint order passed grating an interim injunction

against her husband and her children. This circumstance has

a profound effect, more so having regard to the manner by which

S.A.M.P.No.36 of 2016 was filed in this second appeal 302 of 2013

concerning the properties, which are not it‟s subject matter.

22. The fourth respondent has also set out the reasons for entering

into such sale transaction with a third party to meet the expenses

relating to the treatment of her husband and the domestic needs

pointing out the draught situation then prevailing in their area. The

petitioner did not file any rejoinder to it nor questioned these

circumstances.

23. Respondents 2 and 3 undisputedly are not parties to this sale

transaction entered into between the fourth respondent and Sri

Bathula Hanumanthu. A mere allegation that it was entered into on

account of collusion among all the respondents on the part of the

petitioner in the circumstances, is not sufficient. In a contempt

action, proof required is of a higher standard than usually found in

civil action basing on principle of preponderance of probabilities.

24. Added to it, in respect of violation of interim injunction which

is granted under Order 39 Rules 1 and 2 CPC, there is a specific

provision in Order 39 Rule 2 A CPC to seek punishment for violation of

such order.

25. The petitioner instead of invoking Order 39 Rule 2A CPC, for

the reasons best known, has chosen to file this contempt action MVR,J C.C.No.1422 of 2020

against the 4th respondent, who is not as of now a party to S.A.No.302

of 2013.

26. Therefore, in the above circumstances, no liability in the first

place can be fastened upon the respondents 2 and 3 for this alleged

action of the 4th respondent. The 4th respondent as such cannot be

made to face this contempt action for the very same reasons.

27. Another complaint of the petitioner is encumbering the lands

stated in the plaint schedule in favour of State Bank of India and

KDCC Bank. In support of it, a copy of Encumbrance Certificate is

filed on behalf of the petitioner.

28. From this Encumbrance Certificate, it is seen that a mortgage

loan was raised from State Bank of India, Aspari Branch, by the first

respondent and a simple mortgage deed was executed on 22.06.2004

covering Sy.Nos.222/A and 223, which are Sl.Nos.2 and 3 in item - 2

of the plaint schedule. Thus, this loan was borrowed long prior to the

institution of the suit and the orders passed by this Court granting

interim injunction. This Encumbrance Certificate further reflected

that this loan was discharged and a registered receipt was obtained

from State Bank of India, by the deceased first respondent on

19.01.2016. Therefore, this is not a transaction covered by the

present contempt action.

29. Further, on the security of the very same lands, the

respondents 1 and 2 as well as the minor children of the second

respondent raised a loan from KDCC bank, Aluru Branch and executed

a mortgaged deed on 30.01.2016 that was registered on 02.02.2016.

MVR,J C.C.No.1422 of 2020

It was for Rs.8.00 lakhs. Similar loan was raised on the security of

the very same lands from KDCC Bank, Aluru by the first and second

respondents as well as his minor children of Rs.25.00 lakhs and a

mortgage deed was executed on 06.09.2016 that was registered on

29.09.2016. Contention of the 2nd respondent in this context is that

the orders of this Court prohibited alienation of the plaint schedule

properties but not encumbering the same.

30. The order of this Court did not state that encumbering the

plaint schedule properties is restrained. It was not even the plea of

the petitioner in S.A.M.P.No.36 of 2016. Therefore, the second

respondent is right in contending so. Thus, it did not amount to

violating the orders of this Court.

31. Both the second appeals are pending disposal. Needless to say

that any action of the parties in relation to the plaint schedule

properties is subject to the result in these second appeals. Any

unilateral act on the part of any of the parties to these proceedings,

is subject to result in these second appeals. Even the third parties,

who entered into such transactions, are bound by the result in these

second appeals. If they had entered into any transactions with the

parties to this second appeal though they are not parties, it is nothing

but inviting the effect of the result in these second appeals.

32. Therefore, finding that the 4th respondent cannot be made

liable for the alleged violation of the order of this Court in

S.A.M.P.No.36 of 2016 dated 07.01.2016 that was extended by the

order dated 03.02.2016, this contempt petition has to be dismissed.

MVR,J C.C.No.1422 of 2020

Similarly, respondents 2 and 3 cannot be made liable for this

contempt action.

33. In the result, the contempt petition is dismissed. No costs.

___________________ M. VENKATA RAMANA, J Dt: 27.09.2021 Rns MVR,J C.C.No.1422 of 2020

HON'BLE SRI JUSTICE M. VENKATA RAMANA

CONTEMPT CASE No.1422 of 2020 IN S.A.M.P.No.36 of 2016 in SECOND APPEAL No.302 of 2013

Date:27.09.2021

Rns