Madras High CourtCONT A/3/2023closed

Lodd Ramgopal v. Stella

2023-06-23Honourable Mr Justice M. Sundar,Honourable Mr.Justice R.Sakthivel23 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.06.2023 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Contempt Appeal No.3 of 2023 and C.M.P. Nos.7312 and 8726 of 2023 in Contempt Appeal No.3 of 2023 and Contempt Petition No.1204 of 2023 1.Lodd Ramgopal 2.Krishna Kumar Desai .. Appellants vs.

1.Stella 2.Veerasamy, Inspector of Police, D2 Anna Salai Police Station, Chennai - 2.

.. Respondents Cont. P. No.1204 of 2023 Stella .. Petitioner vs.

1.Lodd Ramagopal 2.Krishnakumar Desai 3.Veerachamy, The Inspector of Police, D2 Anna Salai Police Station, Chennai - 2.

.. Respondents 1/23

Prayer in Cont. A. No.3 of 2023: Contempt Appeal filed under Section 19 of Contempt of Courts Act, 1971 against the order dated 03.03.2023 made in Sub Application (OS) No.134 of 2023 in Contempt Petition No.365 of 2023.

Prayer in Cont. P. No.1204 of 2023: Contempt Petition filed under Section 11 of Contempt of Courts Act, 1971 to punish the respondents herein for their wilful disobedience and defiance of the order of this Court dated 17.04.2023 in Contempt Appeal No.3 of 2023 and C.M.P.Nos.7312 and 8726 of 2023.

For Appellants :

Mr.Sharath Chandran For Respondents :

Mr.Naveen Kumar Murthi for Mr.V.P.K.Gowtham for R1 Mr.E.Raj Thilak, Additional Public Prosecutor for R2 Cont. P. No.1204 of 2023:

For Petitioner :

Mr.Naveen Kumar Murthi for Mr.V.P.K.Gowtham For Respondents :

Mr.Sharath Chandran for R1 and R2 Mr.E.Raj Thilak, Additional Public Prosecutor for R3 2/23

COMMON ORDER [Order of the Court was made by M.SUNDAR, J.] This common order will now dispose of captioned Contempt Appeal, Contempt Petition and the captioned two Civil Miscellaneous Petitions i.e., C.M.P. Nos.7312 and 8726 of 2023. 2.

We deem it appropriate to reproduce the orders/proceedings made by this Bench in the listing on 24.03.2023 when the captioned main contempt appeal was listed for the first time along with four C.M.Ps.

Proceedings/orders made on 24.03.2023 read as follows:

'Read this in conjunction with and in continuation of separate common proceedings made today (24.03.2023) in main Contempt Appeal SR No.40000 of 2023 and CMP SR Nos.40001, 40002, 40003 and 40004 of 2023 which reads as follows:

'Captioned contempt appeal has been filed by two individuals assailing a 'common order dated 03.03.2023 made by a Hon'ble Single Judge in contempt petition No.365 of 2023 and Sub Application (OS) No.134 of 2023 thereat' [hereinafter 'impugned order' for the sake of convenience and clarity].

2. Four CMPs have been filed with prayers to (i) grant third party leave (ii) accept cause title (iii) dispense with production of original impugned order and (iv) for interim stay of the impugned order.

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3. Captioned contempt appeal and captioned 4 CMPs have been listed before us under the cause list caption 'FOR MAINTAINABILIY' as Registry has entertained doubts about the maintainability of the captioned contempt appeal primarily on the ground that there appears to be no order of punishment. In removing this objection, learned counsel on record has pressed into service an order dated 08.06.2022 made by a Hon'ble Division Bench of this Court in Contempt Appeal No.1 of 2020.

It may not be necessary to go into the objection as learned counsel for appellants took us through the impugned order and we prima facie find that it cannot be gainsaid that it is not a punishment at all as there is a direction to register an FIR on the ground that the appellants before us have unauthorizedly and illegally occupied immovable property when appellants were not before the Court. To be noted, we make it clear that this is a prima facie view. At this prima facie stage, we are inclined to accept the submission of learned counsel for appellants that the impugned order has all the trappings of a punishment, as a directive qua registration of a FIR against appellants has been given in a contempt complaint where appellants were not parties.

We also make it clear that this being a prima facie view this maintainability issue is subject to further scrutiny, if necessary and we also make it clear that it is left open to the respondents to raise this maintainability issue and we may entertain it depending on the merits and the manner in which it is raised. Therefore, the Registry shall process the captioned contempt appeal, captioned four CMPs and assign the numbers to the same if otherwise in order.

2. The nucleus of the captioned contempt appeal is an 'immovable property situate at No.74, General Patters Road, Chennai being land admeasuring 23 grounds or thereabouts with a superstructure thereon' [hereinafter 'said property' for the sake of convenience and clarity].

3. We are informed that said property fell to the share of one Mr.Lodd Gopalkrishnadas in / by decrees dated 21.08.1939 and 09.09.1963 made in C.S.Nos.176 of 1923 and 210 of 1947 respectively. It is submitted that the demise of this Mr.Lodd Gopalkrishnadas was on 14.07.1966, his last Will is dated 07.12.1943 and the same was probated in testamentary jurisdiction of the 4/23

Original Side of this Court vide order dated 07.03.1968 made in O.P.No.186 of 1967. Pursuant to this Will, Mr.Lodd Mohanakrishnadas, the legatee under the Will created a Trust in the name and style of 'Shri Vallabhacharya Charities' in and by a Trust deed dated 11.11.1969. To be noted, first appellant in the captioned contempt appeal is this Lodd Mohanakrishnadas's son and second appellant is his grand-son. To put it differently, second appellant is the nephew of first appellant.

4. There is a rival claim to said property and this rival claim was originally by one Ms.Sundari and subsequently, her two daughters Lakshmi and Stella are now continuing the rival claim. At this prima facie stage, we make it clear that this has been set out only for capturing factual matrix and we are not expressing any view or opinion one way or the other qua this factual matrix.

5. One daughter of Sundari filed Crl.OP.No.22334 of 2022 with a prayer for registration of a FIR inter alia alleging that the appellants are interfering with the possession qua said property. This Crl.OP is dated 12.09.2022, appellants 1 and 2 are respondents 4 and 5 respectively in this Crl. OP. We are informed that notice was ordered on 15.09.2022 in this Crl. OP and the same is pending. We are also informed that appellants herein in their capacity as respondents 4 and 5 brought to the notice of this Court the aforesaid facts qua rival claim and it is the emphatic say of the learned counsel for the petitioner that the shallow and untrue rival claim stood exposed.

Further submission of learned counsel for petitioner is, owing to this, another daughter of Sundari namely, Stella (first respondent before us in the captioned contempt appeal) has filed another petition i.e., W.P.No.25131 of 2022 with a prayer for police protection qua representation dated 08.09.2022 without arraying the appellants herein as co-respondents. Learned counsel draws our notice to the factual position that the representation is dated 08.09.2022 and writ petition for mandamus complaining of inaction is dated 12.09.2022. In this writ petition, appellants were not made parties and only official respondents figured as three respondents i.e.

(iii) The Inspector of Police, Chennai-600 002. Learned counsel submits that this has been so devised as appellants (according to learned counsel) called the bluff in another criminal original petition filed by sister of the first respondent (Lakshmi) vide Crl.O.P.No.20286 of 2021 which is also with a prayer seeking police protection. To be noted, this Crl.O.P.No.20286 of 2021 was closed / disposed of in and by an order dated 09.06.2022 made by Hon'ble single Judge of this Court is his further say. As regards this writ petition, WMP being WMP No.24077 of 2022 thereat was taken out and an order came to be made on 16.09.2022 which reads as follows:

'The Registry is directed to post the matter along with W.P.No.22334 of 2022 on 28.09.2022.

2. In the meantime, the third respondent is directed to ensure the safety of the petitioner.'

6. Complaining of violation of 16.09.2022 order, contempt petition No.365 of 2023 and Sub Application (OS) No.134 of 2023 (alluded to and referred to supra in this order) were filed by the first respondent before us and the following order came to be made :

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7. To be noted, the above is the impugned order.

8. After hearing learned counsel for appellants, we are inclined to grant an order of interim stay of impugned order that has been sought for and prima facie reasons for the same are as follows:

(i) Appellants have not been made as parties to the aforementioned writ petition though they were made as parties in criminal original petition;

(ii) Prima facie, impugned order appears to be beyond the legal perimeter of contempt that has been complained of and relief sought for in the main writ petition;

(iii) Balance of convenience is in favour of grant of interim order as prima facie case has been made out and possibility of irreparable legal injury is writ large and an interim stay would balance the rights of all concerned and a decision can be taken after hearing the respondents.

9. Issue notice to respondents returnable in three weeks i.e., returnable by 17.04.2023.

10. In the light of the narrative thus far, there shall be an order of interim stay as prayed for in CMP No.7312 of 2023. To add clarity and specificity, we make it clear that there shall be an order of interim stay of the operation and all further proceedings pursuant to the impugned order being order dated 03.03.2023 made in Contempt Petition No.365 of 2023 and Sub Application 7/23

(OS) No.134 of 2023 thereat till the next listing which shall be three weeks hence.

11. For self same reasons adumbrated in paragraph No.8 supra, more particularly sub-paragraph (i) thereat, CMP Nos.7304, 7307 and 7309 of 2023 are ordered as prayed for.

12. List three weeks hence. List on 17.04.2023.' 3.

We deem it appropriate to reproduce the orders/proceedings made on 17.04.2023 when the captioned contempt appeal was listed along with captioned CMPs and the same reads as follows:

'This proceedings has to be read in conjunction with and in continuation of earlier proceedings made in the captioned matters (to be noted, two separate proceedings were made) dated 24.03.2023 which read as follows:

'Proceedings made in Cont.A.SR.No.40000 of 2023 Captioned contempt appeal has been filed by two individuals assailing a 'common order dated 03.03.2023 made by a Hon'ble Single Judge in contempt petition No.365 of 2023 and Sub Application (OS) No.134 of 2023 thereat' [hereinafter 'impugned order' for the sake of convenience and clarity].

objection as learned counsel for appellants took us through the impugned order and we prima facie find that it cannot be gainsaid that it is not a punishment at all as there is a direction to register an FIR on the ground that the appellants before us have unauthorizedly and illegally occupied immovable property when appellants were not before the Court. To be noted, we make it clear that this is a prima facie view. At this prima facie stage, we are inclined to accept the submission of learned counsel for appellants that the impugned order has all the trappings of a punishment, as a directive qua registration of a FIR against appellants has been given in a contempt complaint where appellants were not parties.

'Proceedings made in Cont.A.No.3 of 2023 Read this in conjunction with and in continuation of separate common proceedings made today (24.03.2023) in main Contempt Appeal SR No.40000 of 2023 and CMP SR Nos.40001, 40002, 40003 and 40004 of 2023 which reads as follows:

3. Captioned contempt appeal and captioned 9/23

4 CMPs have been listed before us under the cause list caption 'FOR MAINTAINABILIY' as Registry has entertained doubts about the maintainability of the captioned contempt appeal primarily on the ground that there appears to be no order of punishment. In removing this objection, learned counsel on record has pressed into service an order dated 08.06.2022 made by a Hon'ble Division Bench of this Court in Contempt Appeal No.1 of 2020. It may not be necessary to go into the objection as learned counsel for appellants took us through the impugned order and we prima facie find that it cannot be gainsaid that it is not a punishment at all as there is a direction to register an FIR on the ground that the appellants before us have unauthorizedly and illegally occupied immovable property when appellants were not before the Court.

To be noted, we make it clear that this is a prima facie view. At this prima facie stage, we are inclined to accept the submission of learned counsel for appellants that the impugned order has all the trappings of a punishment, as a directive qua registration of a FIR against appellants has been given in a contempt complaint where appellants were not parties. We also make it clear that this being a prima facie view this maintainability issue is subject to further scrutiny, if necessary and we also make it clear that it is left open to the respondents to raise this maintainability issue and we may entertain it depending on the merits and the manner in which it is raised. Therefore, the Registry shall process the captioned contempt appeal, captioned four CMPs and assign the numbers to the same if otherwise in order.

3. We are informed that said property fell to the share of one Mr.Lodd Gopalkrishnadas in / by decrees dated 10/23

21.08.1939 and 09.09.1963 made in C.S.Nos.176 of 1923 and 210 of 1947 respectively. It is submitted that the demise of this Mr.Lodd Gopalkrishnadas was on 14.07.1966, his last Will is dated 07.12.1943 and the same was probated in testamentary jurisdiction of the Original Side of this Court vide order dated 07.03.1968 made in O.P.No.186 of 1967. Pursuant to this Will, Mr.Lodd Mohanakrishnadas, the legatee under the Will created a Trust in the name and style of 'Shri Vallabhacharya Charities' in and by a Trust deed dated 11.11.1969. To be noted, first appellant in the captioned contempt appeal is this Lodd Mohanakrishnadas's son and second appellant is his grand-son. To put it differently, second appellant is the nephew of first appellant.

complaining of inaction is dated 12.09.2022. In this writ petition, appellants were not made parties and only official respondents figured as three respondents i.e., (i) The Commissioner of Police, Chennai-600 007 (ii) The Assistant Commissioner of Police, Chennai-600 005 and (iii) The Inspector of Police, Chennai-600 002. Learned counsel submits that this has been so devised as appellants (according to learned counsel) called the bluff in another criminal original petition filed by sister of the first respondent (Lakshmi) vide Crl.O.P.No.20286 of 2021 which is also with a prayer seeking police protection. To be noted, this Crl.O.P.No.20286 of 2021 was closed / disposed of in and by an order dated 09.06.2022 made by Hon'ble single Judge of this Court is his further say. As regards this writ petition, WMP being WMP No.24077 of 2022 thereat was taken out and an order came to be made on 16.09.2022 which reads as follows:

'The Registry is directed to post the matter along with W.P.No.22334 of 2022 on 28.09.2022.

2. In the meantime, the third respondent is directed to ensure the safety of the petitioner.'

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7. To be noted, the above is the impugned order.

8. After hearing learned counsel for appellants, we are inclined to grant an order of interim stay of impugned order that has been sought for and prima facie reasons for the same are as follows:

(i) Appellants have not been made as parties to the aforementioned writ petition though they were made as parties in criminal original petition; 13/23

(ii) Prima facie, impugned order appears to be beyond the legal perimeter of contempt that has been complained of and relief sought for in the main writ petition;

9. Issue notice to respondents returnable in three weeks i.e., returnable by 17.04.2023.

11. For self same reasons adumbrated in paragraph No.8 supra, more particularly sub-paragraph (i) thereat, CMP Nos.7304, 7307 and 7309 of 2023 are ordered as prayed for.

12. List three weeks hence. List on 17.04.2023.'

2. Today, Mr.Dama Seshadri Naidu, learned Senior Advocate appearing on behalf of learned counsel on record for appellants, Mr.Naveen Kumar Murthi, learned counsel representing the counsel on record for first respondent and Mr.E.Raj Thilak, learned State Additional Public Prosecutor representing second respondent (to be noted, second respondent is also present in Court) are before us.

3. The first respondent has moved a vacate interim order petition and it is captioned C.M.P.No.8726 of 2023.

4. As regards vacate interim order, learned counsel for first respondent in the main contempt appeal submits that the urgency is qua putting up further construction in the said property. To be noted, short forms used in the earlier proceedings continue to be used in the instant proceedings also 14/23

for the sake of convenience.

5. We make it clear that as regards superstructure in the said property there will be no further construction and in other words status-quo as of today shall be maintained. Learned Senior counsel for appellants on instructions submits that appellants would maintain status-quo as regards superstructure construction qua said property. This puts to rest the anxiety of the first respondent who is the petitioner in the vacate interim order petition.

6. Learned Additional Public Prosecutor for second respondent submits that an F.I.R. was registered on 24.03.2023 at 11.00 hours before orders were made by this Court but nothing has been precipitated. Let this position continue and we make it clear that the impugned order already granted on 24.03.2023 shall continue to operate until further orders.

7. Let the parties complete pleadings.

8. Appellants and first respondent through their respective Senior counsel / counsel submit that they will not precipitate matters in any manner.

9. It is made clear that every effort will be made by all concerned to have main appeal heard out in the next listing.

10. List captioned matters after summer vacation. List on 08.06.2023.'

For the sake of completion of the trajectory the matter has taken, we deem it appropriate to set out the proceedings made in the Vacation Bench sitting as well as this Court on 17.05.2023 and 12.06.2023 which read as follows:

'17.05.2023 Post these matters before the regular Bench on 8.6.2023.

In the meanwhile, counter affidavit may be filed in C.M.P.No.11144 of 2023.'

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'12.06.2023 Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 17.05.2023.

2. Mr.Sharath Chandran, learned counsel on record for appellants, Ms.S.Varsha, learned counsel representing Mr.Naveen Kumar Murthi counsel on record for first respondent and Mr.E.Raj Thilak, learned Additional Public Prosecutor for second respondent are before us.

3. Ms.Geethi Ara, learned counsel of M/s.S.Ramasubramaniam and Associates (Law Firm), who is before this Court submits that a petition in C.M.P.No.11144 of 2023 in C.M.P.No.8726 of 2023 in the captioned Contempt Appeal has been taken out with a prayer to implead the petitioner thereat saying that the interim order is hurting the petitioner.

4. We are informed that there is bereavement for Mr.Naveen Kumar Murthi, arguing counsel for first respondent in Contempt Appeal.

5. Re-notified. List on 22.06.2023.'

Be that as it may, in the aforementioned proceedings dated 17.05.2023, besides captioned contempt appeal and contempt petition, impleading petition by a third party being C.M.P. No.11144 of 2023 also features in the caption and we are making separate order in that CMP today.

The aforementioned proceedings/orders shall be read as an integral part and parcel of this order. This means that the short forms/short references/abbreviations used in the previous 16/23

proceedings/orders shall continue to be used in the instant order also.

The aforementioned proceedings/orders capture the crux and gravamen of the entire matter before this Court and they also capture the trajectory the matter has taken thus far. Therefore, we do not propose to set out the same again in this order. To put it differently, we do not propose to burden this order with facts and trajectory by setting out the same again. 8.

While the crux and gravamen has been captured, the nucleus of the issue is as captured in paragraph 5 and paragraph 8.1 of our first proceedings dated 24.03.2023. Most relevant portions are as follows:

'5. In this writ petition, appellants were not made parties and only official respondents figured as three respondents i.e., (i) The Commissioner of Police, Chennai-600 007 (ii) The Assistant Commissioner of Police, Chennai-600 005 and (iii) The Inspector of Police, Chennai-600 002. Learned counsel submits that this has been so devised as appellants (according to learned counsel) called the bluff in another criminal original petition filed by sister of the first respondent (Lakshmi) vide Crl.O.P.No.20286 of 2021 which is also with a prayer seeking police protection. To be noted, this Crl.O.P.No.20286 of 2021 was closed / disposed of in and by an order dated 09.06.2022 made by Hon'ble single Judge of this Court is his further say. As regards this writ petition, WMP being WMP No.24077 of 2022 thereat was taken out and an order came to be made on 16.09.2022 which reads as follows:

'The Registry is directed to post the matter 17/23

along with W.P.No.22334 of 2022 on 28.09.2022.

2. In the meantime, the third respondent is directed to ensure the safety of the petitioner.' 9.

Paragraph 8.1 reads as follows:

'8. After hearing learned counsel for appellants, we are inclined to grant an order of interim stay of impugned order that has been sought for and prima facie reasons for the same are as follows:

(i) Appellants have not been made as parties to the aforementioned writ petition though they were made as parties in criminal original petition...'

10.

Mr.Sharath Chandran, learned counsel on record for both the appellants in the main contempt appeal and Mr.Naveen Kumar Murthi, learned counsel representing the counsel on record for first respondent in the main contempt appeal and Mr.E.Raj Thilak, learned State Additional Public Prosecutor for second respondent in the main contempt appeal are before us {to be noted learned counsel representing the counsel on record for first respondent in the contempt appeal is also representing counsel on record for the petitioner in the captioned contempt petition (Cont. P. No.1204 of 2023)}. Contempt Petition No.1204 of 2023 has been filed complaining of breach of our interim order of status quo made in the 17.04.2023 proceedings which has been extracted and reproduced supra. In the light of the trajectory the matter has 18/23

taken, Contempt Petition No.1204 of 2023 is also now given a closure. To be noted, the matter is now being remitted to the Honourable Single Judge with a request to hear the matter afresh after adding two appellants in captioned contempt appeal as parties to W.P. (Crl.) No.25131 of 2022. This is more so, as we are informed that Crl.O.P.No.20286 of 2021 and 22334 of 2022 are also scheduled to be listed before Honourable Single Judge on 13.07.2023.

11.

We make it clear that we are adopting the aforementioned course in the case on hand as the core complaint was that the two appellants were not made parties to the aforementioned W.P. (Crl.) No.25131 of 2022 though they were made parties in the Criminal Original Petitions. Once that is redressed, we are of the considered view that it is entirely the remit of the Honourable Single Judge to consider the matter afresh on its own merits and in accordance with law untrammeled by any observation that has been made in this order as this order has been made for the limited purpose of disposing of captioned matter. We make it clear that as regards this course of remitting the matter to Honourable Single Judge (which we are adopting) there is consensus between learned counsel for appellants, learned 19/23

counsel for first respondent and the learned State Additional Public Prosecutor for second respondent in main contempt appeal viz., Contempt Appeal No.3 of 2023. Therefore, to this limited extent, it is a consent order.

12. The order of Honourable Single Judge is being set aside for the purpose of facilitating the Honourable Single Judge to have a re-look at the matter after giving opportunity of being heard to the two appellants. As a adjunct to this, two aspects of the matter come into play. One aspect is the impugned order is not set aside on merits and no view has been expressed on merits; all questions are left open and set aside is merely to facilitate the Honourable Single Judge to redo the legal drill after hearing the two appellants. The second adjunct aspect is when Honourable Single Judge embarks upon redoing the legal drill, this order will not serve either as an impediment or as an impetus with regard to any aspect other than our request to hear the two appellants and then arrive at a conclusion.

13.

Considering the trajectory the matter has taken, we deem it appropriate to say that the status quo order made vide our aforementioned proceedings/orders dated 17.04.2023 will continue 20/23

to operate for three weeks from today i.e., upto 14.07.2023. We also make it clear that the FIR being FIR No.61 of 2023 registered by second respondent in the contempt appeal on the file of Chennai CCB - I will also be kept in abeyance three weeks hence i.e., upto 14.07.2023.

14.

Aforementioned interim orders, continuance of the same, modification of the same or vacating the same will also be the remit of the Honourable Single Judge notwithstanding the fact that these interim orders have been made/continued by this Division Bench. We deem it appropriate to make this position clear considering the intra-court hierarchy.

15.

As regards the two impleading petitions about which we have made a mention supra, separate proceedings are being made in the same. To be noted, Contempt Petition No.1204 of 2023 is closed preserving all rights of all concerned. 16.

Captioned contempt appeal, captioned contempt petition and captioned CMPs are disposed of as closed albeit with the observations, directives and the aforementioned continuance of interim orders which will be operating for a period of three weeks 21/23

from today.

(M.S.,J.) (R.S.V.,J.) 23.06.2023 Index : Yes 1/3 mmi 22/23

M.SUNDAR, J., and R.SAKTHIVEL , J., mmi Contempt Appeal No.3 of 2023 and Contempt Petition No.1204 of 2023 23.06.2023 23/23