Contempt of court - sec.2 (b) and rule 7 of contempt of courts Act & Rules - Willful disobedience of orders must be pleaded and petition should be as per rule 7 of Contempt rules - absence of pleading and further more the order is for not to sale where as the contempt petition is on allegation of trespass - Trial court failed to notice the same and order for contempt of court - Their Lordships of High court set aside the orders of lower court and allowed the appeal with costs = S.V. Bhaksar Reddy,Kurnool.... Appellant Smt.C.Devaki,W/o. C. Bhaskar,Kurnool and others.... Respondents=2014 (Feb.Part ) judis.nic.in/judis_andhra/filename=10936

Contempt of court - sec.2 (b) and rule 7 of contempt of  courts Act &  Rules - Willful disobedience of orders  must be pleaded and petition should be as per rule 7 of Contempt rules - absence of pleading and further more the order is for not to sale where as the contempt petition is on allegation of trespass - Trial court failed to notice the same and order for contempt of court - Their Lordships of High court set aside the orders of lower court and allowed the appeal with costs =

Order of Trial court

"In view of the facts and circumstances, both the parties are directed

not to create any third party interests and shall not execute any documents with

regard to the suit schedule land."

Allegations in contempt application

that "after obtaining the said orders, I made representations to the respondent

Nos. 1 to 3 and asked to implement the orders of this Hon'ble Court.  But till

date not doing the same.  In the meantime, the 4th respondent and his men had

illegally trespassed into my property and also trying to stop me not to enter

into my lands."

What is civil contempt – How the application be presented

"Civil Contempt" means willful disobedience to any judgment, decree, direction,

order, writ or other process of a court or willful breach of an undertaking

given to a Court.

        In our view, unless there has been a prima facie statement and averment

with the words "willful disobedience" there cannot be any prima facie case of

contempt.  Moreover, the Contempt of Courts (Andhra Pradesh High Court)

Rules,1980 (for short 'the Rules')  have also stated how a statement has to be

made with regard to the contempt proceedings by a petitioner. Rule 7 of the

Rules mandates as follows:

 "7. (1)  Every petition under Rule 5(b) and (c) shall contain:

(a) the name, description and place of residence of the petitioner or

petitioners and of the person charged:

(b)  the nature and details of the contempt alleged, and such material facts,

including the date or dates of commission of the alleged contempt, as may be

necessary for the proper determination of the case;

(c)  the details of the petition previously made by the petitioner on the same

facts, if any, and the result thereof.

(2) Where the petitioner relies upon a document or documents in his possession

or power and refers to them in the petition in support thereof, he shall file

such document or documents or true copies thereof duly authenticated along with the petition.

(3) No Court-fee shall be payable on the petition or on any documents filed in

the contempt proceedings."

        It is clear from the said affidavit that there are no such particulars as

required under the aforesaid Rules.  Unless the statements and averments are

made in complete compliance of Section 2(b) read with Rule 7 as above, there

cannot be any prima facie disclosure of commission of contempt.

Order is for one thing – contempt petition  is for another thing

More over, the

allegations are made not in relation to the execution or non-execution of a

document, on creation of a third party interest or execution of a document on

the allegations made with regard to possession. The Hon'ble First Court while

passing the order in respect of which contempt application has been filed, as we

have already noted, has not ordered regarding possession.  Therefore, the

allegations are absolutely unrelated to the order passed earlier. 

conclusion

Therefore, the order is passed without any jurisdiction.  The contempt

application was also filed without having any foundation under the law.

Accordingly, we set aside the order and dismiss the contempt case and the

contempt case shall not be proceeded with. And allowed the appeal with  costs.

2014 (Feb.Part ) judis.nic.in/judis_andhra/filename=10936

THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON'BLE SRI JUSTICE SANJAY KUMAR               

Contempt Appeal No.2 of 2014 

28-02-2014

S.V. Bhaksar Reddy,Kurnool.... Appellant

Smt.C.Devaki,W/o. C. Bhaskar,Kurnool and others.... Respondents 

For the appellant: Sri B.Narasimha Sarma, Advocate.

For the Respondents 1 and 2 : Jayasree Wazeer 

<Gist:

>Head Note:

?CITATIONS: 

THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            

 AND

THE HON'BLE SRI JUSTICE SANJAY KUMAR        

Contempt Appeal No.2 of 2014 

DATED:28.2.2014 

Judgment: (per the Hon'ble the Chief Justice Sri Kalyan Jyoti Sengupta)

        This appeal is admitted and notice has been served upon the learned

counsel for the respondents, who appears to contest this matter.  The scope of

the appeal is very very limited, for which, no formal hearing of the appeal on a

future date is required.

  Learned counsel for the appellant drawing our attention to the allegations

made in the affidavit filed in support of the contempt application, namely,

paragraph-4 of the affidavit submits that the allegations contained therein have

no correlation with the order passed by the Hon'ble trial Judge. He submits

drawing our attention to the order of the Hon'ble trial Judge that there has

been no order restraining his client from entering into the land.  The order

relates to something else. He also submits drawing our attention to Section 2(b)

of the Contempt of Courts Act, 1971 (for short 'the Act') that there is no prima

facie allegation of commission of contempt going by the definition as above.

According to him, the impugned order is a separate one and has got nothing to do

with the first order in relation to which, the contempt application is said to

have been made.

 Learned counsel for the respondents has not been able to give answer to the

definition pointed out by the learned counsel for the appellant.  She goes on

saying some other subject, for which, her clients have grievance.  She says that

it will appear from the records that the appellant is not supposed to enter into

or use the land for agricultural activities and as a result whereof, her clients

have suffered loss and damages. In view of the aforesaid submission of the

learned counsel, we examine the first order, which was passed by the Hon'ble

trial Judge and it appears to us on a reading thereof, that Hon'ble trial Judge

has not passed any order in relation to the possession of any property, but has

passed an order directing the parties not to create third party interest and not

to execute any document with regard to the suit schedule land.  We, therefore,

set out the relevant portion of the order.

       

       "In view of the facts and circumstances, both the parties are directed

not to create any third party interests and shall not execute any documents with

regard to the suit schedule land."

        On a reading of the same, we examined the statements and averments made in  

the affidavit of the contempt case.  Apart from the allegations made in

paragraph-4 of the affidavit filed in support of the contempt case, there is no

other allegation.  In paragraph-4, the 1st respondent-petitioner has alleged

that "after obtaining the said orders, I made representations to the respondent

Nos. 1 to 3 and asked to implement the orders of this Hon'ble Court.  But till

date not doing the same.  In the meantime, the 4th respondent and his men had

illegally trespassed into my property and also trying to stop me not to enter

into my lands."

        Firstly, we observe while agreeing with the argument of

Mr.B.Narasimha Sarma, learned counsel for the appellant that there has been no

disclosure of prima facie commission of contempt as required under Section 2(b)

of the Act.  We reproduce the said provision herein below:

 "Civil Contempt" means willful disobedience to any judgment, decree, direction,

order, writ or other process of a court or willful breach of an undertaking

given to a Court.

        In our view, unless there has been a prima facie statement and averment

with the words "willful disobedience" there cannot be any prima facie case of

contempt.  Moreover, the Contempt of Courts (Andhra Pradesh High Court)

Rules,1980 (for short 'the Rules')  have also stated how a statement has to be

made with regard to the contempt proceedings by a petitioner. Rule 7 of the

Rules mandates as follows:

 "7. (1)  Every petition under Rule 5(b) and (c) shall contain:

(a) the name, description and place of residence of the petitioner or

petitioners and of the person charged:

(b)  the nature and details of the contempt alleged, and such material facts,

including the date or dates of commission of the alleged contempt, as may be

necessary for the proper determination of the case;

(c)  the details of the petition previously made by the petitioner on the same

facts, if any, and the result thereof.

(2) Where the petitioner relies upon a document or documents in his possession

or power and refers to them in the petition in support thereof, he shall file

such document or documents or true copies thereof duly authenticated along with the petition.

(3) No Court-fee shall be payable on the petition or on any documents filed in

the contempt proceedings."

        It is clear from the said affidavit that there are no such particulars as

required under the aforesaid Rules.  Unless the statements and averments are

made in complete compliance of Section 2(b) read with Rule 7 as above, there

cannot be any prima facie disclosure of commission of contempt. More over, the

allegations are made not in relation to the execution or non-execution of a

document, on creation of a third party interest or execution of a document on

the allegations made with regard to possession. The Hon'ble First Court while

passing the order in respect of which contempt application has been filed, as we

have already noted, has not ordered regarding possession.  Therefore, the

allegations are absolutely unrelated to the order passed earlier.  The Hon'ble

trial Judge, in our considered view, with great respect, has not checked up the

aforesaid fatal lacuna and without looking into the same, His Lordship has been

pleased to pass an order at the interlocutory stage, which again is a separate,

different order. This was done because proper assistance was not rendered to His

Lordship, otherwise, His Lordship would not have passed such an order.  Be that

as it may, a mistake is a mistake.   Whether mindful or unmindful, a mistake

cannot be allowed to remain.  We therefore, hold that the learned trial Judge

ought not to have entertained the contempt application.  Unless those

allegations are maintained, the Court cannot assume the jurisdiction. Therefore,

the First Court lacks jurisdiction as jurisdictional fact was not mentioned.

Therefore, the order is passed without any jurisdiction.  The contempt

application was also filed without having any foundation under the law.

Accordingly, we set aside the order and dismiss the contempt case and the

contempt case shall not be proceeded with.

Learned counsel for the respondents argued unnecessarily, which is unrelated to

the issue, and thereby wasted the Court's time.  We, therefore, award costs of

Rs.1,000/- (Rupees One Thousand Only) to be paid by the respondents and because   of filing of patently frivolous contempt application, the aforesaid costs is

also necessary.  Such costs shall be paid within 15 days from the date of

receipt of a copy of this order.  Let this order be produced before the learned

trial Judge on the adjourned date.  It appears, in terms of the order of the

Hon'ble trial Judge, since amount has been deposited before the Court below, the

said amount shall be refunded forthwith by the Court below.

        The contempt appeal is accordingly allowed with costs as aforestated.

_________________  

K.J. SENGUPTA, CJ  

_________________  

SANJAY KUMAR, J        

28.2.2014