NARAYANA PANICKER Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) This application for contempt discloses a state of affairs not altogether happy, and in regard to which, we feel that no relief can be given to the petitioner in an application for contempt. It is unnecessary to state elaborately or in detail the facts of the proceedings, which started from 1124 M. E. and are still continuing to engage the attention of the courts. In 1124 M.E. the petitioner before us filed M.C. No. 29 of 1124 M.E. under S.143 of the Travancore Criminal Procedure Code (corresponding to S.145 of the Indian Code), in respect of a dispute as to possession between himself and the present 3rd respondent. Ext. P1 dated 15-6-1954 is the final order passed on that application finding the petitioner to be in possession. We skip the proceedings in the Munsiff's Court, Parur filed by the 3rd respondent, and the appeal and the other proceedings taken against the same, and notice Ext. P4 order dated 19-2-1976 passed by one of us (Balagangadharan Nair J), directing the Sub Divisional Magistrate to return possession of property to the petitioner. This application again was contested by the 3rd respondent. To that application the Village Officer who had been appointed Receiver in the course of the 145 proceedings was also a party. Despite this order, the petitioner seems to have been usable to secure actual possession of the property. Once again, there was occasion for the matter to come to this Court in a Revision Petition CRP. No.1698 of 1977. This Court found that the 3rd respondent and his sons are not entitled to resist petitioner's claim for possession as the Receiver appointed by the Magistrate's Court in 1124 M.E. had taken possession and the same had not been returned despite order of Court. On this ground, the learned Judge refused the relief for injunction against taking possession, prayed for by the 3rd respondent and his sons. These orders recognise the right to possession of the petitioner; and the petitioner's complaint in this application for contempt is that despite recognition of his right to obtain possession, the same is being denied to him and the orders of this Court are being disobeyed.

(2.) The learned Advocate General on behalf of respondents 1 and 2 invited our attention to the counter affidavit of the 1st respondent, Para.8, and the counter affidavit of the 1st respondent, also Para.8. These paragraphs of the counter affidavits state that although there was a direction to give possession or recognition of the petitioner's possession of the property, from the S.145 proceedings initiated in 1124 on wards, nevertheless, the Village Officer who was appointed Receiver had lost possession, and the 3rd respondent is found to be in possession and in occupation of certain houses in the property. It is submitted that in the circumstances, the 3rd respondent cannot certainly be held guilty of disobedience or contempt of the order of this Court, whatever else may be the position disclosed. The learned Advocate General drew our attention to the recent decision of the Court of Appeal in In re Bramblevale Ltd. (1970 (1) Ch. 128 at p. 135) where, on somewhat different facts, the Court of Appeal recognised the principle that when the books which were directed to be produced in that case were damaged or lost in a car accident, even assuming the statement made about the accident and about the loss of the books is not true, that would not establish that the books were in the possession of the party sought to be proceeded against for contempt. The following passage is instructive:

(3.) In the light of the above principles of law, whatever be the reason for the unfortunate consequence, the position disclosed is that since the date of the order directing possession in favour of the petitioner and appointing the Village Officer as the Receiver of the property, the Receiver has lost possession and possession has gone to the hands of the 3rd respondent and his sons, and respondents 1 and 2 have reported to the Court that as they are living in the property in houses and have made improvements, there is grave danger in evicting them from the property. The learned Advocate General represented that appropriate proceedings will be taken against them. The land in question is not government land; and the remedy of filing a suit or taking other appropriate steps, we are assured, would be thought of. It has not been shown that the 2nd respondent lost possession, as indicated in the authorities noticed, through his negligence or contumacy. In the circumstances, we do not think that anything has been made out to hold respondents 1 and 2 guilty of contempt. (The 1st respondent is the Magistrate and the 2nd respondent is the Village Officer).