MANU/DE/0426/1982Equivalent Citation:1983CriLJ495, 22(1982)DLT33, 1982RLR553IN THE HIGH COURT OF DELHICriminal Contempt Appeal No. 2 of 1982Decided On:25.05.1982Appellants:Bimal Chandra SenVs.Respondent:Kamla Mathur and Anr.Hon'ble Judges/Coram:A.B. RohtagiandLeila Seth, JJ.Subject:CriminalSubject:Contempt of CourtCatch WordsMentioned INActs/Rules/Orders:Code of Civil Procedure, 1908 (CPC) -Order39Rule 2Case Note:Civil Procedure Code -Order39, Rule 2 vis-a-vis contempt of Court Act, Sections 10 & 12--Injunctionorderissued by court--disobedience--jurisdiction to punish contempt vests in court issuing it--person not party or abetter or sider cannot be proceeded for contempt--abettor or aider cannot be held liable for criminal contempt either--criminal and civil contempt--difference.A suit of permanent injunction was filed in the court of subordinate judge, by the plaintiff seeking injunction, restraining the defendant, her servants, and agents from carrying on any construction activities in the property. A temporary injunction was granted. plaintiff moved an application in the High Court under Sections 10 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution. The respondent to the application are the defendant in the suit and her husband. The plaintiff complains that both wife and husband have flouted theorderof injunction by going on with the construction. The allegations are that husband is aider and abettor of contempt, because he is supervising the fresh illegal construction activities. The question involved in the petition is, whether a petition under Sections 10 and 12 of the Contempt of Courts Act and Article 215 of the constitution will lie in the High Court in respect of an injunctionorderissued by the subordinate Judge. Dismissing the petition.Held:1. For the disobedience of the injunctionorderor breach of any of its terms the court of subordinate judge granting the injunction has jurisdiction to punish "a person guilty of such disobedience or breach". The High Court has the power under Section 10 of the Act but the exercise of that power is discretionary.2. UnderOrder29, Rules 2-A, C.P.C. any detailed enquiry must be left to the court which has passed theorderand which is fully acquainted with the subject-matter of its ownorderof temporary prohibitory injunction. It is more desirable that the court which made theorderof injunction should go in to the facts and ascertain the truth of the alleged disobedience and extent to which is willful.3. A person not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach.4. The essence of criminal contempt consists in the doing of something calculated or designed to obtain a result of legal proceedings different from that which would follow in the ordinary course. Criminal contempt is external to the administration of justice and truly subversive of it. It is an obstruction and outrage against the public administration of justice. It is essentially criminal in character. It is foulest contamination which can infect the judicial system. It is a great evil.5. 'Criminal contempt' may be defined as contumelious or obstructive behavior directed against the court and one example of this is contempt in the fact of the court. It is an obstruction of justice, a sinning against the majesty of law and time honoured jurisdiction over such offence is undisputed. Criminal contempt means despising of the authority of court. Sometimes by using words importing scorn, reproach or diminution of the court, its process,orders, officers, or ministers, upon executing or serving such process ororders.6. Civil contempt is basically a wrong to the person who is entitled to the benefit of the courtorderand is essentially remedial and coercive. Civil contempt of court exists to provide the ultimate sanction against him who refused to comply with theorderof a properly constituted court. Once the offender complies with the court'sorderhe has a right to be released, whereas there is no such right in respect of criminal contempt.7. Criminal contempt are essentially offence of a public nature and consist of publications or acts which interfere with the due court of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending do deter or frighten witnesses or by interrupting court proceedings or by tending to impair public confidence in the authority or integrity of the administration of justice. Civil contempt, on the other hand, are committed by disobeying court judgments ororderseither to do or to abstain from doing particular acts or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction in sanctioned, or by disobeying other courtorders. Civil contempt are, Therefore, 'offence' essentially of a private nature since they deprive a party of the benefit for which theorderwas made. The essence of the court's jurisdiction in respect of criminal contempt is penal, the aim being to protect the public interest in ensuring that the administration of justice is duly protected. On the other hand, the court's jurisdiction in respect of civil contempt is primarily remedial, the basic object being to coerce the offender into obeying the court's judgment ororder.JUDGMENTAvadh Behari Rohatgi, J.(1) The Facts : The plaintiff, Dr. Bimal Chandra Sen, owns property No. 4405 in Darya Ganj, Delhi. He says that he gave a portion of his property on lease and license to one Mrs. Kamla Mathur wife of Shri Rama Shankar Mathur. The plaintiff alleges that Mrs. Mathur was making illegal construction in the property. On 6-4-1981 he brought a suit in the court of the subordinate judge, Mr. S. N. Gupta, for permanent injunction restraining Mrs. Mathur, her servants and agents, from carrying on any construction activities in the property. In. the suit the plaintiff made an application for temporary injunction underOrder39rules 1 and 2 of the Code of Civil Procedure. The subordinate judge granted a temporary injunction against the defendant, her agents and servants.. on 6-4-1981. On 6-6-81 he modified the injunctionorder. From thisorderthey, the plaintiff and the defendants, appealed to the court of the senior sub judge. Those appeals were dismissed.(2) Now the plaintiff has made an application to this court under Sections10and12of the Contempt of Courts Act 1971 (the Act) read with Article215of the Constitution. The respondents to this application are (1) Mrs. Kamla Mathur and (2) Rama Shankar Mathur. The plaintiff complains that both wife and husband have flouted theorderof injunction by going on with the construction. He says that they should be committed for contempt for acting in defiance of the injunction. The wife is admittedly a party to the suit The husband is said to be an aider and abettor of contempt because he is 'supervising the fresh illegal construction activities."(3) Notice of this application was issued to the wife and the husband. They appeared in court and are represented by counsel. The matter first came before Charanjit Talwar J. He was of the view that the husband was not a party to the suit and tile averments made against him prima facie constituted on offence of criminal contempt of court. Since cognizance of criminal contempt can be taken only by a division bench he, byorderdated September 1, 1981, directed that the matter be placed before a division bench. This is how the mater has come before us.(4) At the very outset the question arises whether such a petition under Sections10and12of the Act is maintainable in this court on the averments made by the plaintiff. The suit was brought by the plaintiff against the wife of Mr. Mathur. She is the sole defendant in the suit. Against her the injunctionorderwas issued hy the .subordinate judge underOrder39rules I and 2, Civil Procedure Code. enjoining her not to make construction. This was later on modified. No" the plaintiff complains of violation of the injunctionorderand says that the wife as the principal offender and the husband as an 'aider and abettor' be punished for contempt of court under Sections10and12of the Act and Article215of the Constitution. Will such a petition lie in this Court in respect of an injunctionorderissued by the subordinate Judge ?(5) The principal argument of plaintiff's counsel is thatOrder39does not provide effective relief to the plaintiff as those provisions have their own limitations and a more efficacious remedy for doing complete justice to a litigant is provided by Sections10and12(3)of the Act. Basing himself entirely on the Act he says that the wife is guilty of civil contempt and the husband of criminal contempt as an "aider and abettor'. I will examine this argument in relation to wife and husband separately. Case against wife :(6) In so far as the wife is concerned the legal position admits of no difficulty. She is the defendant in the suit. The court issued a temporary injunction against her. The plaintiff alleges that she has disobeyed the injunctionorder. For disobedience of the injunctionorderrules 2A ofOrder39of the Code provides the remedy. Rule 2A says : "Consequence of disobedience or breach of injunction. (1) In the case of disobedience of any injunction granted or otherordermade under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or theordermade, the Court granting the injunction or making theorder, or any court to which the suit or proceeding is transferred, mayorderthe property of the person guilty of such disobedience or breach to be attached, and may alsoordersuch person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs him release. (2) No attachment made under this rule shall remain in force for more than one year. at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceedings, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto,(7) Rule 2A was inserted by the Amendment Act of 1976. Sub-rules (3) and (4) have been omitted and Rule 2A enacted in their place. It provides for cases of disobedience or breach of injunction. The transferee court can also exercise this power.(8) The breach by a party of anordermade against him or her in the course of a civil case is a perfectly familiar thing. Cases of breach of injunction are tried every day. The proper court to try that is undoubtedly the court which tries the civil proceeding and makes theorder. I have never yet heard that cases of disobedience of injunction were anything but subject to trial by the civil judges trying the suit. And in the course of the trial it is open to the person accused of breach to establish upon the facts that what had been done is not a breach in fact, but was a legitimate and defensible action. In Taylor v. Taylor Lr 1 Ch. D. at: p. 431(1) Sir George Jessel said :" Whereon the other hand, a statutory power is conferred for the first time upon a court and the mode of exercising it is pointed out, it means that no other mode of exercising it is to be adopted."(9) That the court which passes the injunctionordershall have power to commit for contempt in case of breach is the unquestioned rule since 1882. unquestioned by anything that I can recognise as an authority binding on me. Section 493 of the Code of Civil Procedure (Act XIV) of 1882 enacted this rule. The present Code (Act V) of 1908 embodies the same rule. During the long history of the. Codes in India for one hundred years there is not a single instance in Out law books where the High Courts tried a party for the disobedience of injunction issued by a subordinate court.(10) A disobedience of anorderof injunction is a contempt of court. Sub-rule (1) confers on courts the power to punish such contempt and, further, prescribes the punishment to be awarded therefore. (See Amritlal v.P. Srinivas Rao, MANU/AP/0100/1967: AIR1967AP48 and Ram Saran v. Chatar Singh(1901) 23 All. 465. The sub-rule provides for the punishment not only of disobedience of the temporary injunction but also of breach of any of the terms subject to which the injunction may have been granted. (Narsappa v. Chinnareppa,Air 1947 Mad. 98. While the High Courts as courts of record have inherent jurisdiction to commit for contempt, other courts have no such power apart from the provisions of rule 2A. Janak Nandini v.Kedar Narain Singh MANU/UP/0039/1940: AIR1941All140 and Rochappa v. Sachi Dcvi(1902) 26 Mad 494. So in the case of wife it is plain that for the disobedience of the inanitionorderor breach of any of its terms the court of subordinate judge granting the injunction has jurisdiction to punish "a person guilty of such disobedience or breach". The High Court has power under Section10of the Act but the exercise of that power is discretionary. (See Ram Rup Pandey v.R. K. Bhargava. MANU/UP/0051/1971: AIR1971All231 .(11) In Ramalingan v.Mahalinga Nadar MANU/TN/0114/1966: AIR1966Mad21 the court held thatOrder39rule 2(3), Civil Procedure Code . is a far more adequate and satisfactory remedy in such cases. Any detailed inquiry must be left to the court which has passed theorderand which is fully acquainted with the subject-matter of its ownorderof temporary prohibitory injunction. "It is clearly more desirable that the court which made theorderof injunction should go into the facts, and ascertain the truth of the alleged disobedience, and the extent to which it is willful". (page 22). Case against the husband :(12) The question remains regarding the liability of the husband. Can he be punished for contempt of court under contempt of court, counsel for the plaintiff argued that under Sections10and12of the Act and Article215of the Constitution this High Court has ample power to punish a person even though he is not a defendant to the suit if the Court is satisfied that he is instigating or assisting in the disobedience of the injunctionorderor breach of its terms. I may straightway say that the body of the case law in India is against this contention. I shall refer to two recent authorities, In Indu v.Ram Bahadur Choudhary MANU/UP/0202/1981: AIR1981All309 Sinha J. said : "In my opinion, a person who has got an effective alternative remedy of the nature specified underOrderXxxix, Rule 2-A or underOrderXXI. Rule 32. Civil Procedure Code. should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be a proper exercise of discretion on the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative, remedy is available to any person. I am fortified in taking this view by the observations made in Ram Rup Pandey v.R. K. Bhargava MANU/UP/0051/1971: AIR1971All231 and Calcutta Medical Stores v. Stadmed Private Ltd.(1977) 81 Cal. Wn 209.(13) In Rudriah v. State of Karnataka 1981 (1) Karnataka Law Journal 33(11) (DB) the Court said that when special procedure and special provision is contained in the Code of Civil Procedure itself underOrderXxxix rule 2-A for taking action for the disobedience of anorderof injunction, the general law of contempt of court cannot be invoked. If such a course is encouraged holding that it amounts to contempt of court, when anorderof subordinate court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. "Every decree holder can rush to this court staling that the decree passed by a subordinate court is not obeyed. This is not the purpose of the Contempt of Courts Act." (p. 34).(14) These two decisions were cases where the plaintiff alleged contempt of court against a party to the suit and required the High Court to proceed against him under the Act. The Courts refused to take action under the Act. But what about a person who is not a party to the suit and who is charged with aiding and abetting the breach of the injunctionorder. Does Rule 2A also include an aider and abettor' who is not a party to the suit ? This is the question to be decided. In Mawazzam Ali v.Shubhas Chandra MANU/WB/0212/1927: AIR1927Cal598 Rankin Cj and Majumdar J. expressed the opinion thatorder39rule 2(3) C. P. C. (the old provision now replaced by Rule 2-A), is not intended to give the court power to visit for contempt of court people against whom noorderis made and Therefore abettors of contempt of court cannot be punished. Rankin Cj said :" THERE can be no doubt that according to the English cases there does exist in the High Court in England a power to commit for contempt persons who abet disobedience of an injunction. But for the purposes of the mofussil courts this jurisdiction has to be taken as it appears in Mrs. Kamla Matuur And AnotherOrder39of the Code of Civil Procedure. In my judgment there is no reason to suppose that any such power was intended to be conferred by the terms of rule 2 of thatorder. It is quite true that the phrase used is "the person guilty of such disobedience or breach.".......... 'The person guilty of such disobedience or breach" includes a person guilty of any such terms. It seems to me wrong to argue that clause (3) is intended to give the court power to visit for contempt of court people against whom noorderis made or terms imposed. I have the greatest difficulty in seeing that anybody can be guilty of disobedience of anorderexcept the person to whom theorderis directed."(15) In that case the District Judge had not only punished for contempt of court the persons who were guilty of breach of hisorder, but had also directed the properties of . a person to be attached who was abetting other people in committing contempt of court. Rankin Cj held that the district judge had no jurisdiction to make theorderagainst the alleged abettor or aider. This is a weighty authority having regard to the eminence of Rankin Cj who decided it. It is a clear authority against the proposition contended for.(16) Following Mawazzam Ali's case (supra) Niyogi J. in Distt. Judge, Chhindwara v.Basori Lal MANU/NA/0065/1939held that the terms ofOrder39rule 2 do not contemplate punishment of one who, not being a party bound by injunction, incites or aids in the commission of its breach. (See also Bai Mani v. Bhailal Chunilal.MANU/MH/0083/1929: Air 1929 Bom 417.(17) In Off. Assignee v. Suryakan ThammalAir 1938 Mad. 927Loach Cj and Ayyangar J. took a contrary 545(16) to a case of insolvency under Section58(5)of the Presidency Towns Insolvency Act, 1909.(18) In Pratap Udai Nath v.Sara Lal MANU/BH/0211/1948: AIR1949Pat39 a special bench of Agarwala Cj, Meredith and Narayan Jj held that equity acts in personam and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. Persons who were not defendants in the suit in which the injunction was granted nor were named in the decree cannot be proceeded against in contempt for disobeying the injunction, even if such persons claim through the person against whom the injunction was granted. The special bench held that the decision of the Privy Council in the case of S. N. Banerjee v.Kuchwar Lime & Stone Co. Ltd.. MANU/PR/0060/1938was conclusive upon the point before them. Jn that case the Patna High Court had held that the Secretary of State for India and -the Director , the Manager of the Kalyanpur Lime Works were guilty of contempt for interfering with a former lessee under the Government, the Kuchwar Lime and Stone Company Ltd. in breach of an injunction against the Secretary of State. "The Privy Council held that there had been no contempt by the Secretary of State. But they were pressed with the argument that Ghosh and Banerjee of the Kalyanpur Company were nevertheless guilty of contempt for aiding and abetting. The Privy Council said :' THE respondents ,however, contended that even if the Secretary of State was nut himself guilty of direct disobedience to the injunction which had been granted, yet the other two appellants were guilty of contempt upon the principles set out in Avery v. Andrews.51 L. J. Ch. 41446 L. T. 279and Seaward v. Paterson(1897) 1 Ch. 545:66 L. J. Ch. 267. In terms, however, those cases limit the offence of contempt by a person not a party to the injunction to cases where they aid and abet the party enjoined in its breach. Where, as here, that party has not broken the injunction it is impossible to hold that anyone has aided or abetted them in breaking it. The respondents sought to avoid this difficulty by maintaining that the doing by anyone of an act which was forbidden by the injunction was itself an offence. Their lordships can find no authority for so wide a proposition. It is certainly not enunciated or indeed hinted at the cases referred to nor do they think it is sound in principle."(19) The Privy Council was then pressed with the argument that Ghosh and Banerjee were bound by the injunction as deriving title from the Secretary of State. To this they said :" THE utmost which the respondents would say was that the Kalyanpur Company, having derived their supposed interest from the Secretary of State, who had been forbidden to interfere with the respondents' lease, were acting against the spirit if not the letter of the injunction in taking or continuing in possession of the quarries, and were Therefore guilty of contempt in interfering with the respondents' lease. The fact, however, that Gosh and Banerjee claimed on behalf of their Company to derive title, rightly or wrongly (and their Lordships will assume wrongly), through the Secretary of State, cannot in their view make them liable HCD/82-5 for an act not forbidden to them though forbidden to him."(20) From the above rulings two propositions emerge, Firstly, a person not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach. Secondly, the jurisdiction to punish for disobedience of the injunctionordervests in the court which ranted the injunction.(21) The next question is : Can an 'aider and abettor' be proceeded against under the Act ? I think not. The only allegation against the husband is that he "is aider and abettor of contempt" as he "is supervising the fresh illegal construction activities". This is an allegation more like an allegation against in agent than an abettor. The plaintiff has in effective alternative remedy against the principal party bound by the injunction and her agents and servants. We have not been shown any reported decision in India where the court punished an aider and abettor.(22) Civil contempt is defined in Section2(b)of the Act. it "means willful disobedience of any judgment, decree, direction,order, writ or other process of a court or willful breach of an undertaking given to a court". This does not deal with the case of temporary injunctions because that subject is specially dealt with inOrder39, Civil Procedure Code . Aider and Abettor :(23) Then there is another difficulty in the way of the plaintiff. Unless it is held that the wife is guilty of disobedience of the injunctionorderor breach of its terms there can be no question of aiding or abetting. Unless there is a principal offender there can be no aider or abettor. The culprit's guilt must first be established. The court must first find who is the principal offender. She can only be the wife because she is the defendant to the suit. If it is held that she is not guilty of disobedience of the injunction or breach of its terms, there will be no question of the husband aiding and abetting her. Who will find whether the wife is guilty of disobedience of the injunctionorder? It can only be, I think, the court of the subordinate judge, which granted the injunctionorder. The High Court cannot decide in lieu of the court granting the injunction. The subordinate judge is the best person to interpret his ownorderand to find, after taking evidence, whether the defendant is guilty of willful disobedience of the injunctionorderissued by him. Criminal contempt :(24) Counsel for the plaintiff says that the husband is guilty of criminal contempt of court. I do not agree. This is not a case of criminal contempt. Criminal contempt means :" THE publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or tends to scandalise, or lowers or tends to lower the authority any court; or (ii) prejudices, or interferes or lends to interfere with the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner;"(25) In Advocate General Bihar v.M. P. Khair Industries MANU/SC/0504/1980: 1980CriLJ684 (19) the Supreme Court described the nature of criminal contempt in these words :" IT may be necessary to punish as a contempt, a course of conduct which abuses and males mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective andorderlyadministration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and. so, it is entrusted with the power to commit for Contempt of Court, not inorderto protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced. obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage".Per Frank Furter, J. in Offutt v. U. S.1954 348 Us 2." THE law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope". Per Judge, Curtis-Releigh quoted in Jennison v. Baker(1972) 1 All. E.R. 997."(26) The essence of criminal contempt consists in the doing of something calculated or designed to obtain a result of legal proceedings different from that which would follow in the ordinary course. (Lechmere Charlton's case(1836) 40 E.R. 661per Lord Cottenham). It deals, to use the words of Lopes L.J.. with something outside the cause and, is not a mere step in the cause. (O'shea v. O'shea and Panel 15 Pd 59) (21). Criminal contempt is external to the administration of justice and truly subversive of it. It is an obstruction and outrage against the public administration of justice. It is essentially criminal in character. It is the foulest contamination which can infect the judicial system. It is a great evil. A court has to protect its administration of justice and all those who share or are convened to its labors .Judges, witnesses, juroxs, process servers, etc. all have to be protected. And a court of justice can protect itself against the outrage by suppression and punishment. But this power to commit must be used sparingly and with the greatest caution. The greater the power the greater the restraint.(27) 'CRIMINAL Contempt' may be defined as contumelious or obstructive behavior directed against the court and one example of this is contempt in the face of the court. It is an obstruction of justice, a sinning against the majesty of the law and the Time-honored jurisdiction over .such offences is now undisputed. Criminal contempt; has been defined as despising of the authority of court. Sometimes by using words importing scorn, reproach or diminution of the court, its process,orders, officers, or ministers, upon executing or serving such process ororders. The distinction between civil and criminal contempt :(28) What is the distinction between civil contempt and criminal contempt ? Civil contempt or contempt in procedure as it is called, consists of failure to comply with anorderof the court. The law provides sanctions for an enforcement of the process andordersof a court. Although civil contempt is basically a wrong to the person who is entitled to the benefit of the courtorder, there has always been a punitive element in the civil contempt disobedience. of a courtorderof injunction, for example, can result in a committal to prison just as a criminal contempt can. But civil contempt is essentially remedial and coercive. Civil contempt of court exists to provide the ultimate sanction. against him. who refused to comply with theorderof a properly constituted court. The jurisdiction in respect of civil contempts is primarily remedial, once the offender complies with the court'sorderhe has a right to be released, whereas there is no such right in respect of criminal contempts.(29) Criminal contempts are essentially offences of a public nature and consist of publications or acts which interfere with the due course of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending to deter or frighten witnesses or by interrupting court proceedings or by tending to impair public confidence in the authority or integrity of the administration of justice. Civil contempts, on the other hand. are committed by disobeying court judgments ororderseither to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other courtorders. Civil contempts are Therefore "offences" essentially of a private nature since they deprive a party of the benefit for which theorderwas made. The essence of the. court's jurisdiction in respect of criminal contempts is penal, the aim being to protect the public interest in ensuring that the administration oi' justice is duly protected. On the other hand. the court's jurisdiction in respect of civil contempt is primarily remedial, the basic object being to coerce the offender into obeying the court's judgment ororder. (Borrie & Lowe-Law of Contempt pages 369-370).(30) This then is the distinction between 'civil contempt' and 'criminal contempt'. This distinction is made in the Act. The disobedience of injunction is a civil contempt Strictly speaking it does not fall within section2(b)of the Act. It is specifically dealt with inOrder39of the Code. But it is not a criminal contempt. The argument that the act of aiding and abetting a breach of injunction amounts to a criminal contempt is based on the leading English case of Seaward v. Paterson(1897) 1 Ch. 545. ft concerned a promoter who had arranged boxing matches on residential premises in London and thereby knowingly assisted the lessee to disobey anorderenjoining him from committing a. nuisance. In the course of his judgment in the Court of Appeal upholding the promoter's committal for contempt. Lindley L.J. distinguished between "a motion to commit a man for breach of an injunction, which is technically wrong, unless he is bound by the injunction" and a "motion to commit a man for contempt of court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice.' The inference to be drawn from this distinction made by Lindley Lj is that the liability of the promoter was considered to be as for a criminal contempt of court. In Scott v. Scott(1913) A.C. 417, however, Lord Atkinson denied that this was so, and himself suggested that it would be absurd if a criminal contempt were to be committed by one who was not personally prohibited from doing the act in question, while no more than a civil contempt was committed by one who was. A third party which is said to be guilty of aiding and abetting the contempt incurs the liability of a principal offender. The powerful speech of Lord Atkinson Scott v. Scott (supra), shows that an aider and abetter will also be guilty of a civil contempt because the principal is guilty of civil contempt. (See Miller Contempt of Court pp. 249-250). Salmon Lj has said :" A stranger who helps the defendant to breach the injunction is sent to prison, no doubt as a punishment for contempt but the effect of sending him to prison is also an indirect en- forcemeat of theorderwhich benefits the plaintiff."(Jennison v. Baker(1972) 1 All Er 997. So on any view it is a civil contempt. There is no element of criminality in it. It is not per se a crime. All that has been said against the husband is that he has participated in defying the injunction. Has he participated in a criminal act? The answer must be "no".(31) The Privy Council in S. N. Bannerjee v. Kachwar Lime & Stone Co. (supra) said :"IT is now sufficiently established that a committal for a finding of contempt for breach of an injunction is not criminal in its nature and is properly dealt with under the Civil Procedure Code. See Scott v. Scott(1913) Ac 417."(32) We have the high authority of the Privy Council for the proposition that the breach of injunction is a civil contempt. It is so in the case of wife. It will be so in the case of the husband if he can be held guilty of disobedience of an injunction which forbade hill not. There is no question of criminal contempt. The "Privy Council is referring to the speech of Lord Atkinson at page 456 in Scott v. Scott (supra) with approval and saying that the matter is governed by the Code of Civil Procedure. The Code is a comprehensive and complete refutation of the plaintiff's case. I, Therefore, reject the contention that the present is a case of criminal contempt. Sections10and12of the Act invoked by the plaintiff have no application. It is not a case of contempt of the subordinate courts which the High Court should punish.(33) In my view Seaward v. Paterson (supra) on which plaintiff's counsel relies heavily has no application to the facts of this case. In England that jurisdiction has been exercised for a very long time for longer than any of us can remember" and was held to be "undoubted" (per Rigby Lj at page 558). Recently Lord Denning followed Seaward v. Paterson in Acrow (Automation) Ltd. v. Rex Chain- belt(1971) 3 All E.R. 1175. Whether we have the same jurisdiction I do not decide. Rankin Cj denied jurisdiction to Indian Courts as long ago as 1927 in Mawazzam Ali. He had in mind Seaward v. Paterson. the said that in India the Code of Civil Procedure does not permit the court to punish an aider and abetter. "I have the greatest difficulty", he wrote, "in seeing that anybody can be guilty of disobedience of an.orderexcept the person to whom theorderis directed. The reason is that Indian law is codified and the statute will govern us. Therefore my conclusion is this.Order39does not empower the court to punish an "aider and abettor". Under the Act of 1971 it is not a criminal contempt.(34) The plaintiff's counsel referred us to an unreported judgment of a division bench (Prakash Narain and F. S. Gill JJ) in Criminal Original 68 of 1977 decided on 23-2-1979 : Raj Prakash vs. Choudhry Plastic Works(24). That was a patent case. The High Court passed a decree of injunction in plaintiff's favor. The defendant disobeyed the decree. It was a case of willful disobedience of the undertaking given to the High Court. The division bench punished the defendant for a deliberate disobedience to anorderof the court and breach of the undertaking given to the court. The judges held that it was a case of civil contempt. This case illustrates that civil contempt is "essentially a wrong to the person entitled to the benefit of theorderor undertaking". It involves private injury. No public interest is involved. Only the particular interests of the parties to the case are affected. Rai Prakash's case much relied on, by no means supports the plaintiff's contention but tends strongly to negative it. It will not like to comment on it further as it is in appeal to the Supreme Court,(35) Here we are asked to punish the husband for criminal contempt. The utmost that can be said is that he is obstructing in the administration of civil justice. But the court has not issued any injunction against him. Nor forbade him to do any act. Assuming that he supervised the construction the act does not 'savour of criminality". One who encourages another to act in breach of an injunction is not a criminal. Anorderof the court in a civil suit creates an obligation upon the parties to whom it applies, the breach of which will be punished by the court, and in proper cases such punishment may include imprisonment. But it does no more. It does not make such disobedience a criminal act. The Courts in India have consistently and without any exception held that theorderspunishing persons for disobedience to anorderof the court are civil contempt for which an effective remedy is provided in the Code. So the principle of Civil contempt is rooted in the Codes. It it rooted in the wisdom of a century of justice in India.(36) The Act makes a clear distinction between civil and criminal contempt. We have to observe it. Salmon Lj expressed the opinion that there is no real justification for making distinction between civil and criminal contempt. In Jenison v. Bakar (supra) he said :" CONTEMPT Shave sometimes been classified as criminal and civil contempts. I think that at any rate today, this is unhelpful and almost meaningless classification."(37) We cannot ignore this distinction because the Act makes it. Each case will depend on its facts, the distinction being between process to compel performance of a civil obligation and process to punish conduct which has about it some degree of criminality, some defiance of the general law. (Stourton v. Stourton(1963) P. 302per Scarman J). In the present case I am clearly of the opinion that the process of contempt is being used to compel performance of a civil obligation. It is a civil process. It is a civil contempt, if proved. I do not regard the case as one of criminal process or the facts of this particular case as having a criminal character. Appeals(38) There is another good reason why this application must fail. The plaintiff wants us in the High Court to try both wife and husband for contempt. Suppose we do. It will lead to startling results. Theorderof injunction was made by the subordinate judge underOrder39, Civil Procedure Code . From hisorderappeal lay to the court of the senior subordinate judge. Appeals were actually filed in that court and were heard and dismissed by the senior subordinate judge. For disobedience the wife can be punished under Rule 2A ofOrder39by the subordinate judge. An appeal lies from hisorderunder that rule. Anorderunder rule I, rule 2 and rule 2A ofOrder39has been made expressly appealable underOrder43 rule I (r). All these appeals in the present case will lie to the senior subordinate judge, the valuation of the suit being Rs. 200 for purposes of court fee and jurisdiction as fixed by the plaintiff. It would be anomalous to hold that the High Court can punish for contempt under the Act or Constitution committed of the sub judge'sorder.(39) The Code of Civil Procedure does not contemplate this. It expressly provides for grant of injunctions and the punishment for their disobedience. Appeals lie against grant of injunctions. Appeals lie against punishment. Appeals lie against theorderto punish or refusing to punish for disobedience. The High Court does not come info the picture at all. It is neither a case of civil contempt nor criminal contempt under the Act. It is a plain case falling within the four corners ofOrder39of the Code of Civil Procedure. To hold that the High Court has power to punish will be to hold that the subordinate judge has the power to grant injunction, but the High Court has the power to punish for the disobedience of hisorderunder Sections10and12for civil and criminal contempt because aiding and abetting is alleged.(40) If this argument of plaintiffs counsel is accepted it will create chaos. Where will appeals lie no one will know. The absurd anomaly will be this : that the principal who does an act he is expressly prohibited by injunction from doing shall only be guilty of a civil contempt of court, while a person not expressly or at all prohibited who aids and abets the principal in doing that very act shall be held guilty of a criminal contempt of court, with the result that the more flagrant transgressor of the two. the principal would have a right to appeal to the court of senior sub-judge as in this case against anyorderpunishing her for her misdeed, while the abettor would have a right "if appeal to the Supreme Court from ourorderpunishing him for "aiding and abetting" the principal to commit the Forbidden act. The disrespect to the court which made theorderthat was disobeyed, and the defiance of its authority. would seem to be greater in the case of the principal than in that of an abettor.(41) There is another absurdity. If we try the wife for civil contempt under the Act a single judge will do it But the husband will have to be tried by two judges for criminal contempt. This will also result in appeals being taken to different courts. For my part, I refuse to give the statute a meaning which leads to an impractical and ridiculous result unless compelled to do so by the language of the statute itself or by a clear authority which is binding on this court. I can find nothing in the Act or the Consultation which supports the argument on behalf of the plaintiff. Conclusion :(42) The mere disobedience by a party to a civil action of a specificorderof the court made on him in the suit is "civil contempt". Theorderis made at the request and for the sole benefit of the other party to the civil suit. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if theorderof any court of law could be disregarded with impunity, but no sufficient public interest is served by punishing the offender if the only person for whose benefit theorderwas made chooses not to insist on its enforcement. A. G. v. Times Newspapers Ltd.(1973) 3 Wlr 298per Lord Diplock.(43) All that is at stake in the present case is the private rights of the parties. For defiance of the courts under the remedy is provided in the Code. It is attachment and detention in civil prison. For deliberate defiance of interim injunctions the court can send the contemner to prison. If the subordinate courts cannot enforce their injunctions theordervirtually would be worthless. It is the deterrent effect of an injunction plus the liability to imprisonment for its breach which is the remedy. The subordinate judge can punish the defendant if he finds her to be guilty in flagrantly defying theorderwhich he had made. Contumacious disregard and contemptuous disobedience if theordersof the court have always been visited with committal to prison and attachment. Against the husband no case of criminal contempt has been made out. It seems to me that the application is wholly misconceived.(44) Founding himself on Seaward v. Paterson counsel argued that the husband incited the wife in continuing the construction in defiance of theorderof the court. It was argued that the husband's support and endorsement of the action of the defendant in setting the court at defiance is a criminal contempt. With this contention I do not agree. In that case the principal Paterson, his agents and servants were restrained by injunction from, amongst other things having, or permitting to be held, exhibitions of boxing on his premises. He held, or permitted to be held there, such an exhibition in breach of this injunction. One Murray, who was neither his agent nor servant, was present at the exhibition, aiding and abetting Paterson in holding it. The plaintiff moved that both principal and the abettor should be committed for breach of the injunction. The whole controversy before North J. was whether Murray could be committed, as he was not a party to the suit and was no" named in the injunction. The learned judge held that he could be committed, not indeed for breach of the injunction but for contempt of court in aiding and abetting Paterson in doing an act which the latter was by the injunction prohibited from doing, and committed both Paterson and Murray to prison. Murray alone appealed from thisorderto the court of appeal. In the appeal theorderof North J. was upheld.(45) Seaward v. Paterson has given rise to much controversy which in the present case it is not necessary to resolve. In Scott v. Scott (supra). Lord Atkinson in a devastating criticism exploded the view that the act of Murray amounted to criminal contempt. Salmon Lj in Jennison v. Baker (supra) regards it as a case of civil contempt. It was followed in Acrow (Automation) by Lord Denning and Cross J. in Phonographic Performance Ltd. v. Amusement Caterers Ltd.(1963) 3 Wlr 898. In India its applicability to injunctions was denied by Rankin C..T. in Mawaz- zam Ali. Niyogi J. in District Judge v. Basori Lal followed him. In Madras Leach C.J. applied it in Official Assignee v. Suryakanthammal in a case of insolvent's contempt. Chawla J. in this court approvingly referred to in a case of disobedience of court'sorderSee Kuldip Rastogi v.Vishva Nath, MANU/DE/0024/1979: AIR1979Delhi202 .(46) There is no agreement amongst the judges on its true ratio decidendi. In a trenchant criticism of the view that this case is an authority on criminal contempt Lord Atkinson said "I cannot agree that disobedience per se of anorderof the court irrespective of the nature of the thingorderedto be done, is a criminal offence." (Scott vs. Scott). Scott v. Scott and Jennison v. Baker (supra) take the view that in Seaward v. Paterson the action amounted to a civil contempt. Cross J. in Phonographic Performance assumed that the act amounted to a criminal contempt. Oswald and Fox in their treatises on contempt classify adding and abetting breach of injunction as a criminal contempt. Miller in his book on Contempt of Court takes the view that a person rendering assistance commits a criminal contempt. (page 248). Borrie and Lowe in their book on The Law of Contempt sum up the controversy in these words :" ANOTHER type of contempt which is difficult to classify is aiding and abetting a breach of injunction. It can be argued that such an act amounts to a criminal contempt since the offence is not committed by a party to the action and the act clearly impedes the due course of justice. On the other hand it can equally well be argued that the act amounts to a civil contempt, the punishment of the offender being an indirect means of enforcing the courtorderfor the benefit of the plaintiff. Authority can be found to support both of these views."(47) This controversy shows at least one thing. Despite many important differences between them, it is possible to see in civil contempt and criminal contempt a number of 'family resemblances', to adopt a useful phrase of the philosopher Wittgenstein .The line of demarcation is thin. It is difficult in some cases to say on which side of the line a case falls. Both tend to undermine the administration of justice.(48) In India the position is different. In this country the authoritative decision is of the Privy Council in S. N. Banerjee v. Kuchwar Lime & Stone Co. Ltd (supra). The Privy Council has held that disobedience of the breach of injunction is a civil contempt governed by the Code of Civil Procedure. For their decision they relied on Scott v. Scott (supra). The Patna High Court had relied on Seaward v. Paterson. Reversing the High Court the Privy Council held that Seaward v. Paterson did not apply to the case before them. I would say the same. Seaward v. Paterson does not apply to the present case. This is a straight forward case of an injunction granted by the subordinate judge and the plaintiff alleging its disobedience by the defendant and her husband. The answer is : "Go to the court which issued the injunction".(49) Mr. Ramachandran in his Contempt of Court (4th ed.) at page 646 says that the principle in Seaward v. Paterson that persons aiding and abetting the principal offender are also liable in contempt, has not been followed in India. He refers to Maharaj Pratap Udai Nath v.Sara Lal MANU/BH/0211/1948: AIR1949Pat39 and the Privy Council in S. N. Bannerjee (supra) in this connection. I have come to the conclusion that for the purposes of this case it is unnecessary to determine the parameters of Seaward v. Paterson or to decide how far that case can be followed in India.(50) For these reasons I would dismiss the application but make noorderas to costs. I make it clear that if the plaintiff desires he may move an appropriate application to the subordinate judge under Rule 2A ofOrder39, Code of Civil Procedure for disobedience of theorderof injunction. The subordinate judge will decide the application according to law. I say nothing on the merits of the case.

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MANU/PH/1350/2001Equivalent Citation:IN THE HIGH COURT OF PUNJAB AHD HARYANAC.O.C.P. No. 1540 of 2000Decided On:01.06.2001Appellants:Gajjan SinghVs.Respondent:Tersam Lal, Assistant Sub Inspector of PoliceHon'ble Judges/Coram:Bakhshish Kaur, J.Counsels:For Appellant/Petitioner/Plaintiff:Mr. J.S. Gill, Adv.For Respondents/Defendant:Mr. B.R. Mahajan, Adv.Subject:Contempt of CourtCatch WordsMentioned INActs/Rules/Orders:Contempt of Courts Act, 1973 - Sections 2 and 12;Code of Civil Procedure, 1908 (CPC) - Section 151 - Order 39, Rules 1, 2 and 2A(1)Cases Referred:Dr. Bimal Chandra Sen, Delhi v. Mrs. Kamla Mathur, Delhi and another, 1983 Crl.L.J. 495;Om Parkash Jaiswal v. D.K. Mittal, 2000 AIR SCW 722;Murray & Co. v. Ashok Kr. Newatia and another, JT 2000(1) 337 (S.C.)Citing Reference:

Discussed3

Case Note:Contempt of Court - Violation of the decree - Suit filed for permanent injunction - Learned Civil Judge decreed the suit in favour of the Petitioner - Contempt petition filed under Section 12 of the Contempt of Courts Act, 1973 as the Respondent violated the decree passed by the Civil Judge and threatened family members of the Petitioner in his absence - Held, Respondents were neither a party to the suit nor a specific order of restraint was passed against them due to which no case was made out for initiating contempt proceedings against them - Petitioner had already taken steps by proceeding against the Respondents by submitting a complainant - Petitioner was within his right to pursue the complaint and seek the redressal of his grievances - Hence, petition dismissed.Disposition:Petition dismissedJUDGMENTBakhshish Kaur, J.1. The petitioner has filed this contempt petition under Section12of the Contempt of Courts Act (in short 'the Act'). It is alleged that the respondents have deliberately violated the decree passed by the Civil Judge (Senior-Division), Patti.2. Gajjan Singh-petitioner claiming himself to be in possession of the land measuring 9 kanals 7 marlas (as mentioned in the judgment Annexure P-1 but 7 kanals; 9 marlas as mentioned in the petition) filed a civil suit No. 145 of 20.6.2000 for permanent injunction restraining Balkar Singh, Anokh Singh and Bikkar Singh from dispossessing him forcibly except in due course of law.3. Bikkar Singh and other defendants though contested the claim of the petitioner, did not lead any evidence to support their pleas raised in the written statement, Therefore, the learned Civil Judge (Senior Division), Patti decreed the suit in favour of the petitioner. Copy of the judgment is Annexure P-1.4. On November 9, 2000, us averred in the petition, respondent Nos. 1 to 9 along with three policemen, came to the fields of the petitioner and started ploughing the fields with tractor, The petitioner pleaded with them not to damage the wheat crop sown by him. He had also submitted certified copy of the judgment and decree dated 3.11.2000 and apprised them of the situation that he is in possession of the land for the last 20 years. Shri Tarsem Lal, Assistant Sub Inspector before whom the order was produced tore away the copy of the order and remarked that in the area he is the sole authority and this piece of the paper is not help to the petitioner. The petitioner has also met respectable of the village and the matter was taken by Shri V.K. Mal-hotra, President of All India Welfare Sangarsh Committee and representations were sent along with copy of the decree as well as revenue record to Chief Justice of Punjab and Haryana High Court, D.G.P. Chandigarh, I.G. Amritsar, D.C. Amritsar, SSP Tarn Taran, DSP Bhikhi Wind. The Deputy Superintendent of Police marked the representations for enquiry to the SHO Bhikhi Wind, but again the petitioner had to face the wrath of Shri Tarsem Lal, ASI-respondent No. 1 as he came to the house of the petitioner and in his absence threatened his family members of teaching the petitioner a lesson.5. In response to the show cause notices issued to the respondents, Tarsem Lal, ASI-respondent No. I, Sukhwant Singh-respondent No. 2 for himself as well as on behalf of other respondents submitted joint reply. They have denied the averments contained in the petition. Respondent Nos. 2 to 10 have also raised a preliminary objection that the answering respondents were not party to the civil suit filed by the petitioner against his cousin brothers Balkar Singh and others, therefore, this petition is liable to be dismissed as it amounts to misuse of the process of the Court. It is also denied that the petitioner is in possession of 7 kanals 9 marlas of land bearing Khatta No. 31, khatauni No. 128 and Killa No. 46/14/2.16. It is, however, admitted that the land belongs to Gurudwara Gu-rugranth Sahib and the Gurudwara Committee has been leasing out this land to different persons from time to time.6. I have heard Shri J.S. Gill, learned counsel, for the petitioner and Shri B.R. Mahajan, learned counsel for the respondents.7. A bare perusal of the judgment Annexure P-l would indicate that the suit for permanent injunction was filed against Balkar Singh, Anokh Singh and Bikkar Singh and none of respondents were arrayed as defendants in the suit, Annexure P-2 is copy of the interlocutory order passed by the Vacation Judge, Patti on June 24, 2000. The suit was instituted on June 20, 2000. The defendants who had appeared before the trial Court i.e. the Vacation Judge had made the statement in the Court that they have no objection if the application of the plaintiff under Order 39 Rules 1 and 2 and Section151CPC is allowed since the plaintiff is in possession of the suit land,8, Whether any case is made out for initiating contempt proceedings against the respondent ? Before doing so, the sequence of events resulting into the filing of the civil suit, passing of the ex parte decree in favour of the plaintiff, need to be taken into consideration and these are summarised as under :-(1) Civil suit for permanent injunction was filed during vacations on June 20, 2000;(2) Defendants to the suit immediately appeared before the Judge four days thereafter i.e. on June 24, 2000 and stated that they have no objection to the Order 39 Rules 1 & 2 CPC;(3) The Vacation Judge adjourned the case to July 17, 2000 for filing of written statement;(4) On July 17, 2000 when the defendants filed the written statement, they raised a specific plea that the suit land is under the ownership of Gurudwara Guru Garanthsahib and the plaintiff is not in possession of the suit land. The entries of Jamabandi and Khasra Girdawaris have been got effected by the plaintiff wrongly in his name in connivance with the revenue authorities. Whereas on June 24, 2000 they had made a contradictory statement that the plaintiff is in possession of the suit land and the application under Order 39 Rules 1 and 2 CPC may be allowed.(5) The defendants to the suit are stated to be cousin brothers of Gajjan Singh-petitioner.9. Upon the aforesaid circumstances, the suit of the plaintiff was decreed. A bare perusal of the judgment Annexure P-l shows that the suit was not seriously contested by the defendants. Firstly, they had led no evidence. Secondly, counsel for the defendants did not press issue Nos. 2, 3 and 4 which related to the maintainability of the suit, especially the locus standi of the plaintiff in filing the suit. With this background, when the parties to the suit are closely related, everything was done in a hurried manner and above all, none of the respondents was a party to the civil suit, whether the act of the respondents complained of in this petition, would in any way attract the penal consequences as envisaged under Section12of the Contempt of Courts Act.10. In Dr. Bimal Chandra Sen, Delhi v. Mrs. Kamla Mathur, Delhi and anotherMANU/DE/0426/1982, it was held that the jurisdiction to punish for disobedience of, the injunction orders vests in the Court which granted the injunction. The High Court has power under Section10of the Contempt of Courts Act, but the exercise of that power is discretionary. The disobedience of an injunction is a civil contempt. Strictly speaking, it does not fall within Section2(b)of the Contempt of Courts Act. It is specifically dealt with in Order 39 of the Code. Section2(b)which defines Civil contempt does not deal with the case of temporary injunctions because that subject is specifically dealt with in Order 39 CPC. Sub-rule (1) of Rule 2 A confers on Courts the power to punish such contempt and, further, prescribes the punishment to be awarded therefore Not only this, a person who is not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach.11. Under these circumstances, where the respondents were neither a party to the suit nor a specific order of restraint was passed against them, then no case is made out for initiating contempt proceedings against them. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the court. It has been observed in Om Parkash Jaiswal v. D.K. MittaiAIR 2000 SC 722, that the contempt generally and criminal contempt certainly is a matter between the court and the alleged contemnor. No one can compel or demand as of right initiation of proceedings for contempt'. A jurisdiction in contempt shall be exercised only as a clear case having been made out. Mere technical contempt may not be taken note of. In Murray & Co. v. Ashok Kr. Newatia and anotherMANU/SC/0042/2000, it has been held by the Hon'ble Supreme Court in para 21 that unless the court is satisfied that contempt is of such a nature that the act complained of substantially interferes with the due course of justice, question of any punishment would not arise. It is not enough that there should be some technical contempt of court but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with "due administration of justice. Further in para 24 it has been held that the Contempt of Courts Act puts an obligation on the Courts to assess the situation itself as regards the factum of any interference with the course of justice or due process of law.12. The petitioner has already taken steps by proceeding against the respondents by submitting a complainant Annexure P-3. He is within his right to pursue the complaint and seek the redressal of his grievances.13. For the aforesaid reasons, this petition is dismissed. My observations aforesaid be not construed as expression of opinion which may ultimately affect the criminal proceedings initiated by the petitioner against the respondents.13. Petition dismissed. Manupatra Information Solutions Pvt. Ltd.

MANU/WB/0212/1927Equivalent Citation:AIR1927Cal598, 31CWN814IN THE HIGH COURT OF CALCUTTADecided On:12.04.1927Appellants:Mawazzam Ali Khan and Ors.Vs.Respondent:Shebash Chandra Pakrashi and Anr.Subject:ElectionCatch WordsMentioned INJUDGMENTRankin, C.J.1. This is a somewhat unusual case and in certain aspects it is regrettable.2. It appears that there was an election, the date of which is not given in the paper-book, for the Serajgunj Local Board. One of the thanas that sent representatives to that Local Board is called the Chauhali Thana, and it appears that a certain Babu Shebash Chandra Pakrashi was declared elected to the Local Board for that thana. There was then a suit for setting aside that election and on the 9th May 1925, by the judgment of the Munsif that election was declared invalid and Shebash Chandra Pakrashi was restrained from acting as a member. There was a meeting of the Local Board on the 3rd July 1925, apparently for the purpose of electing a Chairman and Vice-Chairman, and for electing nine persons to represent the Local Board on the District Board.3. It was at one time alleged that, apart from the circumstance that there was no representative from the Chauhali Thana, other illegalities affected what was done in that meeting. The meeting having been held on the 3rd July 1925, we find that on the 13th November 1925 Shebash. Chandra Pakrashi and another gentleman who had been elected to the Local Board of Serajgunj instituted a suit and presented a petition asking that a temporary injunction should be granted against the defendants being the persons-elected to represent the Local Board on the District Board, restraining them from attending at a meeting of the District Board which had been announced for the 26th November, that is to say, 13 days after the suit and four months after the illegalities complained of. When this meeting had been first announced I do not know. The Munsif dealt with the application for injunction and we are informed that he dealt with it not as an ex-parte application, but in the presence of both parties and he refused the application. This had happened on the 16th November 1925. Thereupon on the 24th November proceedings took, place which to my mind are astonishing in more ways than one.4. It appears that the District Judge was at the time sitting at Bogra - a place where he has to take sessions and not a. place at which civil business is done by the District Judge at all. An application was made to him on the 24th, November being the presentation of an appeal against the order of the Munsif and being a petition asking for a temporary injunction to restrain the persons, whom I have mentioned from attending this meeting on the 26th November, that is, in two days' time. The learned District Judge who in the ordinary way would have had nothing to do with such an application-it being part of the-legitimate business of the senior Subordinate Judge in charge of the office of the District Judge at Pabna - made an order to issue notices upon the respondents to show cause on the 30th November. "In the meantime, the respondents-are directed not to join in the said meeting" - in other words (as the only question before the Munsif was whether those persons should be restrained from taking part in the meeting of the 26th November) the District Judge reversed the decision of the Munsif for all purposes and granted the very relief which the Munsif had refused - and all this in the absence of the respondents.5. The paper-book in this appeal does not contain the petition on which this District Judge acted in this manner, but the document is on the record. It is a somewhat lengthy Bengali document and we have done our best to discover what representation was therein made as to the irreparable injury that would be sustained by the appellants if those nine persons were permitted to attend this meeting. It appears that this document contains all sorts of grievances but it is entirely lacking in any statement which purports in any sensible way to show that there would be any real injury at all. It is stated that if the meeting of the Local Board held on the 3rd of July 1925 had been properly conducted, one of the plaintiffs would have been elected to the District Board and that the Chauhali Thana was not represented at the meeting of the 3rd July of the Local Board. One would have thought that no Judge would think of interfering with the proceedings of a local authority on such materials. The petition is demurrable and discloses no reason for a summary interference with the proceedings of the local authority.6. Now, there are two separate questions. The first question is whether the learned District Judge had any jurisdiction to entertain this matter at all. The second question is whether the learned District Judge was acting oppressively and wrongly in making the order with which we are now concerned. There is a great difference between these two questions for the present purpose. Whether an order is right or wrong, if it is made with jurisdiction it is the duty of the parties to obey the order and the obedience that has to be given to orders of the Court cannot be dependent on people's opinion as to their propriety. I proceed therefore to deal with the first question of jurisdiction.7. In the Bengal, North-Western Provinces and Assam Civil Courts Act (Act 12 of 1887), Section 14 provides that it is for the Local Government, by notification in the official gazette, to fix and alter the place or places at which any Civil Court under this Act is to be held. In this case the fixed place was Pabna. By Section 10 it is provided thatin the event of the death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the Additional Judge, or if an Additional Judge is not present at that place, the senior Subordinate Judge present thereat shall, without relinquishing his ordinary duties, assume charge of the office of the District Judge and shall continue in charge thereof until the office is resumed by the District Judge or assumed by an officer appointed thereto.8. Now, under that section absence from the place at which the Court is held is dealt with in the same way as resignation or removal or incapacity by illness and the duty of doing the work is cast imperatively upon the Subordinate Judge. We also know that the office is to be resumed by the District Judge according to the plain terms of the section. It was not disputed that in this case the assumption of jurisdiction by the District Judge was irregular-certainly it was highly irregular and particularly unwise.9. But it is contended that he was not without jurisdiction, because, the District Judge, although he was not at the place where his Court is held, must be taken to be still the District Judge and so the procedure adopted by him cannot be said to be more than an irregularity, on his part. It is also argued that there may be at the same time two officers each of whom is discharging the office of the District Judge. In my opinion, however, the statute cannot be so construed. There is no intention on the part of the legislature to have a duplication of characters or to give people a choice to go before one officer or another. If, for example, one puts to oneself the question whether this District Judge at Bogra could have summoned parties in a contested case before him at Bogra and proceeded to exercise civil jurisdiction over them, then the answer must be that such proceedings would be wholly without jurisdiction. The parties would have been under no duty or obligation whatever to attend the Court. In my judgment the learned District Judge having left Pabna and being absent from the place where his Court was held, the only person who had any right to deal with the appeal was the Subordinate Judge who was then discharging the office of the District Judge. In my opinion therefore this order of the District Judge is without jurisdiction. I have already pointed out that it was, in any possible view, irregular. Nobody supposes that it was in any way usual that civil business of Pabna should be done at Bogra. The order made was also wrong on the merits.10. There is another point, however, which requires to be animadverted upon. It appears that there was a certain pleader who was a candidate for the Chairmanship of the District Board, and, the defendants in this case were apparently-most of them-his supporters. On evidence which does not appear to me to be very definite or very strong the District Judge found that these people had been heard discussing the matter and that this pleader had been heard saying that the order was made without jurisdiction and that it would be no offence if it was disobeyed. In that view the learned District Judge has not only punished for contempt of Court the parsons who were guilty of a breach of his order of the 24th November 1925, but he has directed the properties of this pleader to be attached as a person who was abetting the other people in committing the contempt of Court.11. There can be no doubt that according to the English cases there does exist in the High Court in England a power to commit for contempt persons who abet disobedience of an injunction. Bit for the purposes of the mofussil Courts this jurisdiction has to be taken as it appears in Order 39 of the Code of Civil Procedure, In my judgment there is no reason to suppose that any such power was intended to be conferred by the terms of Rule 2 of that order. It is quite true that the phrase used is "the person guilty of such disobedience or breach." It is used with reference to Clause (1) and Clause (2). Clause 2 gives the Court the power of granting an injunctionon such terms as to the duration of the injunction, keeping an account, giving security or otherwise as the Court thinks fit.12."The person guilty of such disobedience or breach" includes a person guilty of a breach of any such terms. It seems to me wrong to argue, that Clause (3) is intended to give the Court power to visit for contempt of Court people against whom no order is made Or terms imposed. I have the greatest difficulty in seeing that anybody can be guilty of disobedience of an order except the person to whom the order is directed.13. There is a still further point about the order under appeal. That order directs the attachment of the properties of all the parties, and, as regards Respondents. Nos. 1 and 3 to 9 it directs that they be detained in civil prison for a fortnight as well. It is quite true that the terms in which Rule 2 of Order 39 is expressed are misleading and ill-advised in that they read as if the Court were obliged to order an attachment of property and unles9 this is done, cannot order imprisonment. That may be the reason why the learned District Judge has made the orders in the way he has done.14. Attachment is a singularly unsuitable form of punishment in such a case as the case of the Khan Bahadur. If a person is ordered to do something and he does not do it, attachment of his property may be a very useful form of pressure to compel him to do his duty. But it seams to me that to order attachment of the properties of the Khan Bahadur was a somewhat ill-advised order in this case. This case represents several regrettable incidents.15. I hold that the learned District Judge on the 22nd December 1925 had no jurisdiction to make the order which was made and that the parties therefore cannot be visited with punishment for disobedience to it.16. In my judgment the order of the District Judge should be set aside and this appeal must be allowed with costs. The hearing-fee is assessed at ten gold mohurs.Majumdar, J.17. I agree.

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MANU/AP/0213/2003Equivalent Citation:2003(3)ALD83, 2003(5)ALT86, 2003(2)AnWR453IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABADLPA No. 94 of 1998Decided On:19.02.2003Appellants:Mohd. Sharfuddin (died) by LRs.Vs.Respondent:Mohd. Jamal and Ors.Hon'ble Judges/Coram:G. BikshapathyandR. Subhash Reddy, JJ.Counsels:For Appellant/Petitioner/Plaintiff:Vedula Venkata Ramana, Adv.For Respondents/Defendant:Mohd. Azizullah Khan, Adv.Subject:CivilSubject:PropertyCatch WordsMentioned INActs/Rules/Orders:Code of Civil Procedure, 1908 (CPC) -Order39Rule 2ACases Referred:Sudhir Namasudra v. Purnendu Kumar Das and Ors., AIR 1980 Gauhati 1;Tayabbai M. Bagasarwatta v. Hind Rubber Industries (P) Limited, AIR 1997 SC 1240;Hadkinson v. Hadkinson, (1952) 2 All ER 567;Chuck v. Cremer;R. Narapa Reddy v. Jagarlamudi Chandramouli and Ors., AIR 1967 AP 219;Rajappan v. Sankaran Sudhakaran and Ors., AIR 1997 Ker. 315;Chothy Theyyathan v. John Thomas, (1997) 1 KER. L.T. 464;Seaward v. Paterson and Ors., (1897) 1 CH 545;S.N. Bannerjee S. Kichwar Lime and Stone Co. Ltd., AIR 1938 PC 295;The State of Bihar v. Rani Sonabati Kumari and Ors., 1961 SCR 728;Pratap Udai Nath v. Sara Lal and Ors., AIR (36) 1949 Patna39;Shankaralingappa v. Nanje Gowda and Ors., AIR 1981 Karnataka 78;Somnath Honnappa Bennalkar v. Bhimrao Subrao Patil, ILR (1974) Kant 1506;Ganesh v. Narayan and Ors., AIR 1931 Bom. 484;Acrow (Automation) Limited v. Rex Chambelt Inc., (1971)3 All.ER 1175;A.G. v. Times Newspapers Ltd., (1991) 2 All, E.R.398;Gopal Ch. Biswas v. Pradip Kumar Ghosh, 2000 (1) CHN 396;Z Limited v. A and Ors., (1982) All.ER 556;Holtby v. Hodgson, (1889)24 QBD 103;Union of India v. Satish Chandra Sharma, (1980) 2 SCC 144;Syed Abdul Razack v. Matadin Agarwal, (1994) 4 SCC 673;Reliance Petrochemicals Limited v. Proprietors of Indian Express Newspapers Bombay Limited, 1988 (4) SCC 592;Kapildeo Prasad v. State of Bihar, 1997 (7) SCC 569 ;Samee Khan v. Hindu Khan, (1998) 7 SCC 59Disposition:Appeal allowedCase Note:

(i) Property - status quoOrder-Order39Rule 2-A of Code of Civil Procedure, 1908 - appellant legal representative of original defendant challenged injunctionOrderrestraining appellant to disposed off suit property - contended freshOrderneed to be issued to bind legal representative - held, status quoOrderissued against deceased defendant need to be respected by legal representative succeeded to property.

(ii) Attaching properties - appellant challenged CourtsOrderattaching properties subject to deposit of 20,000 where respondent had right to withdraw amount - impugnedOrderruns counter to statutory provision and can beorderedin case of contempt of Court - held,Orderof conditional attachment not maintainable as there was no contempt of Court.

JUDGMENTG. Bikshapathy, J.1. An important question that arises for consideration in this appeal is the binding nature of the temporary injunctionOrdergranted by the lower Court on the LRs. of the party, who suffered theOrderas also the interpretation ofOrder39Rule2(A)of Code of Civil Procedure.2. The LPA arises against theOrderspassed by the learned Single Judge in C.C. No. 1412 of 1987 in A.S. No.2301 of 1987 dated 3.4.1998.3. Before going into the contentions raised in the LPA, it is necessary to refer to the factual matrix which lead to the filing of the appeal. Plaintiffs filed suit in O.S. No. 11 of 1981 before the learned Additional District Judge, Sangareddy for partition of the three schedule properties namely Plaint 'A', 'B' and 'C' properties. One Mr. Sharfuddin was Defendant No.1 in the said suit. It is the contention of the Defendant No.1 Sharfuddin that 'B' schedule property is his self acquired property. Except claiming the interest in 'B' schedule property, he did not contest the matter. After the trial, the suit was dismissed in respect of the 'B' schedule property holding they were self-acquired properties of Sharfuddin. 'B' schedule properly consists of agricultural lands in S.No. 205/1 and 206/1 having an total extent of Ac.20-31 gts.4. Against the said judgment and decree passed by the lower Court insofar as it relates to the dismissal of the suit as far as 'B' schedule property was concerned, the Plaintiff filed an appeal in A.S. No. 2370 of 1987. However, the appeal was dismissed by the learned Single Judge on 27.8.1998. Against the said judgment and decree the matter was carried further in L.P.A. No. 282 of 1998 and the same was also dismissed on 21.6.2001. Thus, the judgment of the Trial Court became final. However, the present proceedings arises out of the interlocutoryOrderspassed by the appellate Court during the pendency of the appeal in A.S. No. 2301 of 1987.5. The Appellants in A.S. No. 2301 of 1987 filed an application in C.M.P. No. 13578 of 1999 for injunction restraining Sharfuddin, Defendant No. 1 in the suit from alienating the 'B' schedule property. However, the Court grantedOrdersof status quo and the status quoOrderswere made absolute on 15.10.1987. The Appellants filed C.M.P. No. 16874 of 1987 in the appeal against Sharfuddin under Section94andOrder39, Rule2-ACode of Civil Procedure to detain him in civil prison, since he had alienated the 'B' schedule property and making constructions on the land during the subsistence of status quoOrders. In the said petition, Sharfuddin filed a counter-stating that he gifted the property to his sons in 1981 and his sons were making constructions and therefore, the Court passed anOrderfinding that there was no violation of the injunctionOrdersand further Directed that Sharfuddin should not make any further constructions. However, Sharfuddin died on 22.10.1991 and his sons were added L.Rs. as respondents No. 3 to 6 in A.S. No. 2301 of 1987. After the L.Rs. were brought on record, they filed CMP Nos. 15501 and 15511 of 1997 underOrder39Rules1and2of Civil Procedure Code to grant interirm injunction restraining the Sub-Inspector of Police and the Appellants from interfering with the possession and enjoyment of the 'B' schedule property. After the matter was contested, Court held that the L.Rs. of Sharfuddin were in possession and enjoyment and therefore, granted the injunctionOrderand the same was in force.6. While so, C.C. No. 1412 of 1997 was filed by the Appellants alleging contempt of theOrdersdated: 15.5.1997 on the ground that on 11.4.1997 the respondent No. 6 and on 30.5.1997, the respondent No. 7 alienated 'B' schedule property by executing registered sale deeds. It is the contention of the petitioners that they were also bound by the status quoOrderspassed by the Court against their father Sharfuddin. The petition was contested by the respondents on the ground that they are the LRs. of Sharfuddin that the property in question was already gifted to them by their father in 1981 and they sold the same to third parties in 1997. However, this Court observed that no contempt case would lie under Sections10and12of the Contempt of Courts Act and left it open to the petitioners to convert the contempt application to that of application underOrder39Rule2-Aof Code of Civil Procedure. Thereafter, petition in C.M.P. No. 19697 of 1997 purported to be underOrder39Rules1and2, Code of Civil Procedure filed for punishing the respondents for alienating the scheduled properties and to detain them in civil prison for disobeying theOrdersof the Appellate Court dated 15.10.1987 in C.M.P. No. 15518 of 1987 and C.M.P. No. 13575 of 1987 in A.S. No. 2301 of 1987. It was resisted by the L.Rs. stating that the property was gifted to them in January, 1981 prior to the suit was instituted and that theOrderpassed against their father is not binding and that there is no injunctionOrdersagainst them subsequent to their bringing on record as L.Rs. The learned Single Judge after hearing the parties held that the respondents disobeyed theOrdersand accordingly, directed the issuance of warrant for attachment of the property of the respondent Nos.3 to 7 for a period of six months or until such time the respondents deposit the sum of Rs.20,000/-. It is further directed that the petitioners were permitted to withdraw the same. Against the saidOrder, the present L.P.A. has been filed.7. While admitting the L.P.A., theOrderthe learned Single Judge was suspended subject to the condition that the Appellants deposit Rs. 20,000/- in the Court. Accordingly, the amount was deposited. Thus, the present appeal arises against the saidOrderpassed by the learned Single Judge dated: 3.4.1998.8. The issue that arises for consideration is whether the injunctionordergranted against the late Sharfuddin survives and makes the L.Rs. binding thereby making the L.Rs. liable for violation of theorderpassed by the lower Court and whether the compensation awarded underOrder39, Rule2-A(2)is in accordance with the provisions contained inOrder39, Rule2-A?9. For proper appreciation of the case, it is necessary to refer toOrder39, Rule2-A, which reads thus:"Consequence of disobedience or breach of injunction :--(1) In the case of disobedience of any injunction granted or otherordermade under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or theordermade, the Court granting the injunction or making theorder, or any Court to which the suit or proceeding is transferred, mayorderthe property of the person guilty of such disobedience or breach to be attached, and may alsoordersuch person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."10. The learned Senior Counsel Mr. Challa Seetharamaiah appearing for the appellants submits that the remedy of injunction is a remedy in persona and not in rem. Therefore, as long as there was no injunction against the appellants, the question of subjecting them to suffer consequences of disobedience of injunctionOrderwould not arise. He relies on the decision of the Gauhati High Court in Sudhir Namasudra v. Purnendu Kumar Das and othersMANU/GH/0001/1980, wherein it has been stated that "there cannot be any violation of theorderof injunction by a person unless he is pointedly injuncted not to do or to do certain tilings by a Court of Law."11. It is also not in dispute that even though ultimately the 'B' Schedule property was held to be the property of Sharfuddin, but yet when once a person violates the interimordersof the Court irrespective of their result in the main proceedings, he is liable for contempt. (See Tayabbai M. Bagasarwatta v.Hind Rubber Industries (P) Limited, MANU/SC/0280/1997: [1997]2SCR152 ).12. In the said decision, the Supreme Court followed the decision of Hadkinson v. Hadkinson(1952) 2 All ER 567, and the Supreme Court held thus:"In the instant case the Plaintiff asked the temporary injunction. An ad interim injunction was granted. Then the Defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the Court, The Court overruled the objection as to jurisdiction and made the interim injunction absolute. The Defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interimOrderswere passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. In such circumstances holding that by virtue of the said decision of the High Court (on the question of jurisdiction) no one can be punished thereafter for disobedience or violation of the interimOrderscommitted prior to the said decision of the High Court, would indeed be subversive of rule of law and would seriously erode the dignity and the authority of the Courts. This is not even a case where a suit was filed in wrong Court knowingly or only with a view to snatch an interimOrder. The suit was filed in the Civil Court bona fide. In such a case the Defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction.The correct principle, therefore, is the one recognised and reiterated in Section9-Ato witness, where an objection to jurisdiction of a Civil Court is raised to entertain a suit and to pass any interimOrderstherein, the Court should decide the question of jurisdiction in the first instance but that does not mean that pending the decision on the question of jurisdiction, the Court has no jurisdiction to pass interimOrdersas may be called for in the facts and circumstances of the case. A mere objection to jurisdiction does not instantly disable the Court from passing any interimOrder. It can yet, pass appropriateOrders. At the same time, it should also decide the question of jurisdiction at the earliest possible time. The interimOrderso passed areOrderswithin jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. These interimOrdersundoubtedly come to an end with the decision that this Court had no jurisdiction. It is open to the Court to modify theseOrderswhile holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would be its duty to modify suchOrdersor make appropriate directions. For example, take a case, where a party has been dispossessed from the suit property by appointing a receiver or otherwise; in such a case, the Court should, while holding that it has no jurisdiction to entertain the suit, must put back the party in the position he was on the date of suit. But, this power or obligation has nothing to do with the proposition that while in force, theseOrdershave to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the Plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction."13. The Supreme Court also extracted the decision of English Court in para 23 thus:In Hadkinson v. Hadkinson the Court of Appeal held:"IT is the plain and unqualified obligation of every person against, or in respect of whom anorderis made by a Court of competent jurisdiction to obey it unless and until thatorderis discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by anorderbelieves it to be irregular or even void. Lord Cottenham, L.C., said in Chuck v. Cremer 'A party, who knows of anorder, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether anorderwas null or valid whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of anorder, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed.'Such being the nature of this obligation, two consequences will, in general follow from its breach. The first is that anyone who disobeys anorderof the Court (and I am not now considering disobedience ofordersrelating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such a person will be entertained until he has purged himself of his contempt."14. He would further submit that ordinary rule is that injunction cannot be disobeyed by a person named in theorder. But, other persons cannot be proceeded against in contempt for disobeying the injunction. A Division Bench of this Court in 72. Narapa Reddy v.Jagarlamudi Chandramouli and others, MANU/AP/0064/1967: AIR1967AP219 , held that "the Court has no doubt jurisdiction to commit for contempt a person not included in an injunction and/or not a party to the action, who knowing of the injunction, aids and abets the defendant in committing a breach of it. Therefore, learned Counsel would submit that the appellants never aided nor abetted their father in committing breach of theorder.15. A somewhat similar issue came up for consideration in Rajappan v.Sankaran Sudhakaran and others, MANU/KE/0067/1997: AIR1997Ker315 , the Kerala High Court. The question was whether the decree could be executed against the L.Rs. of the deceased judgment debtor and whether the L.Rs. can be proceeded for violation of the decree granted against the judgment debtor. The Division Bench held in this regard thus:"Section146of the Code of Civil Procedure provides that any proceeding that may be taken by or against a person could be taken by or against any person claiming under him. The Supreme Court has held that Section146of the Code must be construed liberally. One of us had occasion to deal with the scheme of Section146of the Code of Civil Procedure in theOrderin C.R.P. 805 of 1995. In the face of Section146of the Code the judgment debtor cannot contend that they are not bound to obey the decree for injunction granted against their predecessors-in-interest restraining him from tampering with the boundary of the property or from entering the property of the decree holder or from committing any acts of waste therein. To permit such a plea would be to ignore the princip