Madras High Court
Sunil Kumar @ M.Kannan vs Latha Nair on 21 December, 2023
Author: S.S. Sundar
Bench: S.S. Sundar
Cont.P.No.656 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Cont.P.No.656 of 2023
and
Sub Application (OS) Nos.668 & 682 of 2023
Sunil Kumar @ M.Kannan ... Petitioner
Vs.
1.Latha Nair
2.Chinthu Nair
3.Chanchu Nair ... Respondents
Contempt Petition filed under Section 10 of the Contempt of Courts
Act, 1971, to issue notice to the respondents 1 to 3 and to punish them for
the acts of contempt committed by them for disobeying the judgment and
decree dated 04.12.2009 in O.S.No.4671 of 2007 passed by the IV Assistant
Judge, City Civil Court, Chennai, and confirmed in A.S.No.33 of 2011,
dated 11.03.2013, passed by the II Additional Judge, City Civil Court,
Chennai.
Page 1 of 9
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Cont.P.No.656 of 2023
For Petitioner : M/s.Sudharshana Sundar
for Mr.Ravi Raja Bappu
For Respondents : Mr.N.Muralikrishnan
Senior Counsel
for Mr.E.C.Ramesh
ORDER
(Order of the Court was made by S.S. SUNDAR, J.)
The above Contempt Petition is filed alleging that the respondent is
liable for punishment for contempt for disobeying the judgment and decree,
dated 04.12.2009, in O.S.No.4671 of 2007, passed by the learned IV
Assistant Judge, City Civil Court, Chennai, which is also confirmed in the
appeal in A.S.No.33 of 2011, by judgment dated 11.03.2013, passed by the
II Additional Judge, City Civil Court, Chennai.
2.Brief facts that are necessary for the disposal of this Contempt
Petition are as follows :
2.1.The petitioner is the 2nd plaintiff in the suit in O.S.No.4671 of
2007. The property which is the subject matter of the suit is the property of
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the petitioner's mother who purchased the same under a registered sale deed
dated 03.04.1970. It is the case of the petitioner that the marriage between
his mother and father was dissolved under a Deed of Dissolution dated
07.04.1972. It was at that time, the petitioner's mother executed a
settlement deed granting life interest to the petitioner's father and after his
life time, in favour of the petitioner.
2.2.After the death of petitioner's mother, the petitioner filed a suit in
O.S.No.4671 of 2007 before the City Civil Court, Chennai, against his
father and the respondents herein, who are the second wife and children of
first defendant through his second wife, for permanent injunction restraining
his father from alienating the property. The suit was contested and
ultimately, the trial Court granted a decree restraining the father of petitioner
from alienating the property, after holding that he has only a limited interest
to enjoy the property during his life.
2.3.Thereafter, an appeal in A.S.No.33 of 2011 was also filed by the
petitioner's father along with the respondents in this Contempt Petition. The
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appeal was also dismissed, confirming the judgment and decree of the trial
Court in O.S.No.4671 of 2007.
2.4.It appears that, after the lifetime of the petitioner's father, the
petitioner caused a legal notice calling upon the respondents to vacate the
property and hand over possession. However, the respondents appear to
have issued a reply stating that their father had redeemed a previous
mortgage in respect of the property and therefore, they are entitled to be in
possession of the property till the mortgage money is settled.
2.5.It is in that context, the petitioner has come by way of this
Contempt Petition before this Court, alleging that the respondents have
willfully disobeyed the judgment and decree of the trial Court in
O.S.No.4671 of 2007.
3.Heard the learned counsel on either side and perused the entire
materials available on record.
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4.This Court, going through the documents and the admitted facts, is
unable to find a cause for contempt. Even though a Contempt Petition will
lie even for disobeying the order of the Subordinate Court, the nature of
judgment and decree in the suit filed by the petitioner in O.S.No.4671 of
2007 does not warrant initiation of contempt. In the suit in O.S.No.4671 of
2007, the petitioner obtained a decree for permanent injunction restraining
the father of the petitioner and the respondents from dealing with the
property or to create any encumbrance. By virtue of the judgment and
decree of the trial Court, the respondents are not supposed to create any
kind of third party interest, lien, or charge over the property, which will
affect the interest of the petitioner. However, the decree is not for
mandatory injunction or for recovery of possession upon the death of the
father. In such circumstances, it is open to the petitioner to file a suit for
recovery of possession, in case, the respondents do not hand over
possession. This Court finds that there is no disobedience of the judgment
and decree of the trial Court in the suit.
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5.Learned counsel appearing for the petitioner as well as the
respondents admit that the petitioner has filed a suit in C.S.No.214 of 2023
before this Court for recovery of possession and for mesne profits. In such
circumstances, we leave it open to the petitioner to pursue his remedy in the
suit in C.S.No.214 of 2023. This Court finds that there is no cause for
contempt.
6.During the pendency of the proceedings, the petitioner wanted
mediation and expressed his willingness to give 1/3rd of the suit property.
However, the respondents took a stand that, in view of the fact that the
mortgage created by the petitioner's father was redeemed by the father who
is the 1st defendant in the suit in O.S.No.4671 of 2007, they have a right of
subrogation, as the entire mortgage was setlled by the father himself. It may
be true. However, the petitioner, by virtue of the findings in the previous
suit, is entitled to get a decree in the suit as a matter of course, as the
respondents' contention in this proceedings does not indicate any subsisting
right. Even assuming that there was a mortgage that was redeemed by the
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father, it is admitted before us that a sum of Rs.15,000/- alone was paid by
the petitioner towards redemption. Assuming that the father had redeemed
the earlier mortgage, the father or the respondents, at the best, could only
recover a sum of Rs.15,000/- with interest at the rate of 12% p.a. as agreed
under the Mortgage Deed, which will not be more than Rs.75,000/- as on
date on a rough calculation. Further, the alleged mortgage itself is void as
against the petitioner, since the life estate holder has no right to alienate or
transfer a right in immovable property beyond his life time. Therefore, this
Court finds no valid defence or triable issue in the suit having regard to the
findings in the previous suit.
7.Considering the findings in the previous suit and the facts, this
Court is inclined to request the Registry to list the suit for trial before the
Hon'ble Judge hearing suits, so as to dispose of the suit in C.S.No.214 of
2023 as early as possible, preferably within a period of six months from the
date of receipt of a copy of this order. The Hon'ble Judge may dispose of
the suit on merits, uninfluenced by any of the observations made in this
order touching the merits.
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8.In view of the conclusions reached above, this Contempt Petition is
dismissed. Consequent to the dismissal of the Contempt Petition, connected
Sub-Applications are also dismissed.
(S.S.S.R., J.) (S.M., J.)
21.12.2023
mkn
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
To
1.The II Additional Judge,
City Civil Court,
Chennai.
2.The IV Assistant Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
S.S. SUNDAR, J.
and
SUNDER MOHAN, J.
mkn
21.12.2023
https://www.mhc.tn.gov.in/judis
