AI Structured Summary
Not yet generated for this judgment
Judgment
S. Parvatha Rao, J.—This case highlights the travails of the defendants/respondents when the Courts grant ex parte ad interim injunctions at the asking of the plaintiffs/ petitioners and then take their own time and do not dispose of the interlocutory applications for injunctions after counter-affidavits are filed by the affected parties and in spite of the valiant efforts of the affected parties for early disposal: this, in the teeth of the provisions of the Code of Civil Procedure/1908 (''the Code'' for short) especially Rules 3-A and 4 of Order 39, and several decisions of the Apex Court and this Court - in the present case, in spite of the direction and exhortation of this Court, leading to the present Contempt Case. The petitioners move this Court under Sections 10 - 12 of Contempt of Courts Act, 1971 (for short ''the Act'') against the respondent, who was the Principal Subordinate Judge at Tirupati at the relevant time. First the leading facts.
On l4-6-1995, one P. Kishore Kumar (the plaintiff) laid O.S.No. 107 of 1995 on the file of the learned Subordinate Judge''s Court at Tirupati against the petitioners herein and another for specific performance of an agreement of sale; he also filed LA. No. 587 of 1995 for grant of ex parte temporary injunction against the petitioners restraining them from interfering with his possession and enjoyment of the plaint schedule property, which is a school building at Tirupati. The respondent by his order dated 14-6-1995 (i.e. the same day) granted ex parte ad interim injunction and directed notice returnable by 11-7- 1995 and posted the LA. to 15-6-1995 for proof of compliance with the proviso to Rule 3 of Order 39 of the Code. Aggrieved by the said order, the petitioners filed C.M.A. No. 766 of 1995 before this Court. This Court found fault with the petitioners for rushing to this Court without moving the learned Subordinate Judge''s Court for vacating the order of interim injunction. In that view, this Court on 26-6-1995 disposed of the C.M.A. at the admission stage by the following order:-
"It is unfortunate that the appellants have come to this Court straight- away without seeking vacation of the ex parte interim injunction granted by the learned Principal Subordinate Judge of Tirupati in LA. No. 587 of 1995 in O.S. No. 107 of 1995 on 14-6-1995 in a suit presented on the same day. It is proper that the appellants approach the learned Subordinate Judge for vacation of the ad-interim injunction immediately and if they so approach, the learned Tudge shall immediately take it on file and dispose of the same at the earliest without any delay.
Subject to the above direction, the Civil Miscellaneous Appeal is dismissed at the stage of admission."
Then the petitioners moved this Court by way of ''for being mentioned'' by letter dated 30-6-1995 alleging that the advocates of Tirupati Bar were on indefinite boycott from 16-6-1995 and apprehending that therefore the learned Subordinate Judge may not dispose of or be in a position to dispose of the LA. Holding that this Court could not entertain the matter again on the stated ground, particularly when the C.M.A. had already been disposed of, this Court on 4-7-1995 observed and directed:
"The learned Counsel for the appellants wants us to entertain this matter in spite of it having been disposed of earlier, on the ground that the advocates of Chittoor District are boycotting the Courts opposing the proposed legislation Nyaya Panchayats. This Court cannot entertain the matter on that ground. It is for the learned Counsel to help his clients by going to that Court and arguing the matter if he so desires.
This illustrates how the litigant public are put to needless hardship by advocates taking problematic actions like boycotting Courts for causes which cannot be furthered that way; such precipitous action only results in stultifying their own cause and in neglecting their professional obligations and duties, heedless of the interests of their clients and the litigant public in general, resulting in long delays and accumulation of cases.
In the circumstances, we do not find any reason to entertain the matter having already disposed it of.
The learned Counsel for the appellants states that the trial Court may adjourn the matter, even though the appellants move the Court, on the ground that the other side Counsel is not present. We are sure that the trial Court will take stock of the matter and dispose of the case on merits after giving reasonable opportunity to the other side and without adjourning it only on the ground that there is a boycott by the advocates. The learned Principal Subordinate Judge will also take note of the direction already given."
Thereafter, the petitioners sought vacation of the ex parte order of interim injunction by filing counter-affidavit in LA. No. 587 of 1995 on 11-7-1995 enclosing a copy of the order of this Court in C.M.A. No. 766 of 1995 dated 26-6-1995 along with a Memo. The petitioners allege that the respondent had been adjourning the I.A. from time to time without disposing it of even though the arguments of the Counsel for the petitioners herein were heard and completed on 18-7-1995 itself. They also allege that the said action of the respondent is a deliberate violation of the mandatory direction of this Court in its order dated 26-6-1995, They further allege that, taking advantage of the ad interim injunction, the plaintiff was causing irreparable damage to the suit property and that he had not only sold away some of the school furniture but also leased out the school building to a tutorial College, collecting a fat sum of Rs. 1 lakh. They also allege that in view of the fact that the Counsel for the plaintiff happened to be the President of Tirupati Bar Association, the case was being adjourned for no reason except on the ground of either advocates'' boycott or some other inconsequential ground. On that basis the petitioners contend that the respondent is guilty of deliberate and willful disobedience of the orders of the High Court dated 26-6-1995 in C.M.A. No. 766 of 1995 and therefore liable to be punished under the provisions of the Act.
Upon considering the facts and circumstances of the case and on hearing the arguments of the petitioners'' Counsel, this Court by an order dated 11-9-1995 issued pre-cognizance notice to the respondent. He was directed to submit his report by 21-9-1995. Respondent was also directed to explain every adjournment given by him "in view of the directions of this Court that the matter shall not be adjourned on the ground of the so called boycott of Courts by advocates". The respondent submitted his report dated 14-9-1995 to this Court (erroneously through the District and Sessions Judge, Chittoor and received by this Court on 23-9-1995 only) and when the matter came up on 22-9-1995 this Court had taken cognizance and posted the case to 27-10-1995 and directed the respondent to file his counter. On 8-11-1995 respondent filed his counter dated 4-11-1995 sworn at Tirupati, enclosing a copy of the docket sheet in LA. No. 587 of 1995 showing dates of adjournments and reasons therefore from 14-6-1995 till 25-10-1995. In that counter he gave his explanation as to why he could not dispose of the I.A. He also asserted that the adjournments granted were not due to the boycott by the advocates, but only to give reasonable opportunity to both the parties. It was not mentioned therein that LA. No. 587 of 1995 was dismissed by his order dated 3-11-1995. Respondent filed an additional counter-affidavit dated 10-11-1995 stating that he pronounced orders in LA. No. 587 of 1995 on 3-11-1995 vacating the ad interim injunction and dismissing the I.A. He also offered an apology, to this Court, "for any act I may have done inadvertently".
In his counter-affidavit, the respondent states that on 17-7-1995 he received the order of this Court dated 26-6-1995 in the C.M.A. He also states that even before that the learned Counsel for the petitioners herein (respondents in LA. No. 587 of 1995) (hereinafter referred to as ''the petitioners herein'') filed a copy of it along with a memo, and that on that day itself he directed notice to the other side and posted the I.A., to 17-7-1995. It is not in dispute that on 11-7-1995 itself, the petitioners herein filed counter in I.A. No. 587 of 1995 before the learned Principal Subordinate Judge seeking the dismissal of the LA. The respondent states that on 17-7-1995, the counsel for the petitioners herein filed proof of service on the plaintiff (petitioner in I.A. No. 587 of 1995) (hereinafter referred to as ''the plaintiff''), and he heard the Counsel for the petitioners herein in part and that on that day as many as 20 documents were filed on behalf of the petitioners herein. He also states that the plaintiff was called absent and that there was no representation on his behalf and that he adjourned the matter to the next day i.e., 18-7-1995. On that day, he heard the further arguments of the Counsel for the petitioners herein. The respondent states that on 18-7-1995, the plaintiff filed an affidavit for adjournment of the I.A., on the ground that his Counsel was absent, and that inspite of objection by the counsel for the petitioners herein, "considering the number of documents filed by the learned Counsel for the petitioners herein ("respondents in LA. No. 587 of 1995) and with a view to give reasonable opportunity to the petitioner in LA. No. 587 of 1995 to submit his case in view of the documents filed by the petitioners herein", he adjourned the case to 21-7-1995 to hear the plaintiff. He states that on 21-7-1995, the plaintiff filed LA. No. 666 of 1995 under Order 26 Rules 9 and 10 of the CPC (hereinafter referred to as ''the Code'') for appointment of a Court Commissioner to note down the physical features of the plaint schedule property or in the alternative to appoint the Court Amin to take inventory of articles and also to note about S.V.K. Residential Junior College being run in the plaint schedule premises, and another petition for adjourning the enquiry in LA. No. 587 of 1995 till the disposal of I. A. No. 666 of 1995, and that he allowed the latter petition for adjournment as the application for appointment of Commissioner was filed" and also adjourned LA. No. 666 of 1995 to 24-7-1995 to enable the petitioners herein to file their counter. Thereafter, on 24-7-1995, I.A. No. 666 of 1995 was adjourned to 25-7-1995 for enquiry, and then to 27-7-1995 at the request of the plaintiff and then it was posted for orders to 31-7-1995, and that on that day he pronounced orders appointing the Court Amin "to take inventory of the petition schedule property". On 2-8-1995, the Court Amin filed his report and then LA. No. 666 of 1995 was adjourned to 7-8-1995 for objections. On 7-8-1995, he went to Puttur and, therefore, the matter was adjourned to 16-8-1995 by the Office with a docket note to that effect that the Presiding Officer was on official duty "and that the advocates were on boycott" i.e., for a period of 8 days. On 16-8-1995 I.A. No. 666 of 1995 was closed. Thus, from 21-7-1995 to 16-8-1995, I.A. No. 587 of 1995 was not taken up on the ground that LA. No. 666 of 1995 was pending. The respondent states that on 16-8-1995 the plaintiff filed a petition for adjournment on the ground that compromise talks between the parties were going on and, therefore, he adjourned the matter to 23-8-1995 for reporting compromise" as the other side ...... had no objection for it". He states that on 23-8-1995, the plaintiff was called absent and as there was no representation on his behalf, he adjourned LA. No. 587 of 1995 to 30-8-1995 for orders; and that on 24-8-1995 the plaintiff filed LA. No. 720 of 1995 to re-open the petition to enable him to proceed with the enquiry and that he ordered notice to the other side by 30-8-1995. As no notice was served, he adjourned the matter again to 31-8-1995, and on that day he allowed LA. No. 720 of 1995 and posted the matter to 4-9-1995 "to hear the petitioner (in LA. No. 587 of 1995) finally as last chance and further endorsed that no further adjournment would be given". On 4-9-1995, he adjourned the matter to 5-9-1995" at the request of the both counsel". He states that on 5-9-1995 at the request of the Counsel for the petitioners herein, he adjourned the matter to 27-9-1995; and that as he was on casual leave on 27-9-1995, the matter was re- posted to 28-9-1995; and that at the request of the Counsel for the petitioners herein, he adjourned it to 29-9-1995. On that day after marking some documents on both sides, "for want of certain documents at the request of the Counsel for the petitioners herein" he posted the matter to 9-10-1995 i.e., after Dasara vacation. As he was absent on that day, it was re-posted to 11-10-1995. Thereafter, it was adjourned to 13-10-1995 for reply of the plaintiff and on 13-10-1995 after hearing the arguments of the plaintiff''s Counsel he reserved for orders. He states that on 21-10-1995 he" suo-motu re-opened the matter to hear further arguments on admissibility of the agreement dated 13-2-1995 u/s 47A of the Indian Stamp Act" and, therefore, directed the matter to be posted to 24-10-1995. At the request of the plaintiff''s Counsel it was adjourned to 25-10-1995 and then again to 26-10-1995. In the additional affidavit dated 10-11-1995, the respondent states that as he was away at Hyderabad, the matter was adjourned to 30-10-1995, and that on that day he heard the arguments on behalf of the petitioners herein, and that after posting it for orders, he pronounced orders on 3-11-1995 dismissing the I.A., and vacating the interim injunction. He states that he was adjourning the LA., only to give reasonable opportunity to both the parties and that he did not adjourn the matter on a single occasion on the ground that there was boycott by the Advocates or unjustifiably or at the instance of the plaintiffs Counsel as he was the President of the Bar Association at Tirupati. He, therefore, submits that he has "not committed any violation of the Orders of the Hon''ble Court" nor deliberately or willfully disobeyed any order of this Court, and that, therefore, he is not liable to be punished under the Act.
Mr. Ravi Prasad, learned Counsel for the respondent, has forcefully Contended that the respondent made all efforts to dispose of the matter expeditiously, but could not because he was to dispose of the case on merits after giving opportunity to all concerned. He emphatically denied that the case was adjourned, at any time, due to boycott of advocates, and argued that there was no wilful disobedience of the directions of this Court. He relied on the judgments of the Supreme Court in S.S. Roy Vs. State of Orissa and Others, ; Debabrata Bandopadhyay and Others Vs. The State of West Bengal and Another, ; S. Abdul Karim and Others Vs. M.K. Prakash and Others, and Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, .
S.S. Roy''s was a case of 1st Classs Magistrate of Cuttack who was found by the High Court to be guilty of con tempt of the Court of the Additional Munsif by reason of his making an order, u/s 144 of the Criminal Procedure Code. The High Court found that no circumstances existed which would justify the Magistrate in passing such an order, but exonerated him from the charge of being influenced by any extraneous consideration or dishonest motive in making the order; yet, the High Court punished him for contempt. A three Judges Bench of the Supreme Court held that he could not possibly be found guilty of contempt of Court and observed as follows:-
"As has been said by the Privy Council in Barton v. Yield (1843) 4 PC 273, it is not sufficient in such cases for the purpose of visiting a Judicial Officer with the penal consequences of proceeding in contempt, simply because he committed an error of judgment or the order passed by him is in excess of authority vested in him. The error must be a wilful error proceeding from improper or corrupt motives in order that he may be punished for contempt of Court".
In Debabrata''s case2, the High Court of Calcutta found the District Magistrate of Nadia and his four assistants guilty of contempt of the High Court and the Sessions Court of Nadia. The Supreme Court -a three Judges Bench - held that, on the facts, contempt was not made out observing that "the matter was not approached in that cool manner in which the High Court considers contempt of itself or of Courts subordinate to it". The observations of the Supreme Court relevant for the present case are as follows:-
"A question whether there is contempt of Court or not is a serious one. The Court is both the accuser as well as the Judge of the accusation. It behoves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in Courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished. It must be realised that our system of Courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of Contempt is called for when the lapse is deliberate and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged".
In S. Abdul Karim''s case (3 supra), the question was whether a Magistrate committed criminal contempt in releasing the certain property after receiving final report from the police on a criminal complaint when in the High Court was pending a Criminal Revision Petition questioning an earlier order passed by the Magistrate as regards the custody of that property pending investigation by the police. The High Court of Kerala found the Magistrate guilty of criminal contempt. A three Judges Bench of the Supreme Court following the enunciation of law in the above referred passage in Debabmta''s case (2 supra) held that "in the absence of any mens rea, the Magistrate had at the most committed only a technical contempt of the High Court" and that in such a case, penal action was not called for.
In the above three cases, it was not found that there was indubitable violation of an order of a Superior Court by a lower Court or Tribunal. Niaz Mohammed (4 supra) is not a case relating to violation by a Judicial Officer - it is a case where some Government servants disobeyed and ignored the order of the Supreme Court. Dealing with the definition of ''civil contempt'' u/s 2(b) of the Act, a three Judges Bench of the Supreme Court held as follows:-
"Where the contempt consists in failure to comply with or carry out an order of a Court made in favour of a party, it is a civil contempt... The Court while considering the issue as to whether the alleged contemner should be punished for not having complied with and carried out the directions of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court. Before a contemner is punished for non-compliance of the direction of a Court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional ... the Court has to record a finding that such disobedience was wilful and intentional. If from the circumstances of a particular case, brought to the notice of the Court, the Court is satisfied that although there has been a disobedience but such disobedience is the result of some compelling circumstances under which it was not possible for the contemner to comply with the order, the Court may not punish the alleged contemner".
The Supreme Court referred to the following observations in its earlier decision in Capt. Dushyant Somal Vs. Smt. Sushma Somal and Another, :
"Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner".
The Supreme Court also referred to the following passage in Halsbury''s Laws of England, 4th Edn., Vol. 9, Para 53, P. 34;
"Although contempt may be committed in the absence of wilful disobedience on the part of the contemner, committal or sequestration will not be order unless the contempt involves a degree of fault or misconduct",
and also the following passage
"In circumstances involving misconduct, civil contempt bears a two fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest".
But, different consequences might arise where the alleged contemner is a Judicial Officer and he violates the judicial order of a superior Court. We will come to this a little later.
A wrong order of a Judicial Officer may amount to misconduct attracting disciplinary proceedings as held in V.R. Katarki Vs. State of Karnataka and others, . What is ''misconduct'' is explained in State of Punjab and Others Vs. Ram Singh Ex. Constable, . A mere wrong order of a Judicial Officer may not amount to contempt. In S. Abdul Karim''s case(3 supra), the Supreme Court observed, while dealing with the definition of ''criminal contempt'' u/s 2(c) of the Act, as follows:-
"The broad test to be applied in such cases is, whether the act complained of was calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due administration of law. The standard of proof required to establish a charge of ''criminal contempt'' is the same as in any other criminal proceeding. It is all the more necessary to insist upon strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a judicial officer. Wrong order or even an act of usurpation of jurisdiction committed by a judicial Officer, owing to an error of judgment or to a misapprehension of the correct legal position, does not fall within the mischief of "criminal contempt". Human judgment is fallible and a judicial Officer is no exception. Consequently, so long as a judicial Officer in the discharge of his official duties, acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the Courts will not, as a rule, punish him for a "criminal contempt". Even if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the Courts are loath to punish a contemner, if the actor omission complained of, was not wilful."
Where disobedience or non-compliance of an order of a superior Court is not by a party to a proceeding but by a subordinate Court or Tribunal, we are of the view that different considerations may arise. Thus, when an act or omission complained of is committed by a Judicial Officer and it involves violation of an order of a superior Court it can amount to criminal contempt of superior Court depending on the nature and magnitude of the violation and the manner of violation establishing wilfulness, absent good faith. In Sati Nath Sikdar v. Ratanmani Naskap (1912)15 Cri.L.J. 335 the Calcutta High Court made ad interim order for stay of proceedings for determination of mesne profits. The Munsif, before whom proceedings were pending, assessed mesne profits ignoring the affidavit filed by the judgment debtor specifically stating that the High Court had already stayed the proceedings. A Division Bench of the Calcutta High Court held as follows:-
"It is beyond controversy that the Munsiff has laid himself open to the gravest censure for the manner in which he has conducted himself, and the explanation he has submitted is wholly unsatisfactory. His act plainly amounts to a contempt of the authority of this Court, and we trust, he will profit by the warning now given that the arm of this Court is long enough to reach any person who may behave in this manner. As regards the order he has made, we need only observe that it is wholly without jurisdiction and must be cancelled: Hukum Chand v. Kamalanand ILR (1905) Cal. 927."
Shri Baradakanta Mishra Ex-Commissioner of Endowments Vs. Shri Bhimsen Dixit, is the case of a member of the Superior Judicial Service of the State of Orissa, and at the relevant time he was functioning as Commissioner of Hindu Religious Endowments, Orissa. While disposing of a revision petition, he ignored a binding decision of the Orissa High Court as regards the exercise of revisional power observing "further, against the order we have moved the Supreme Court and as such, the matter can be safely deemed to be sub judice". In a writ petition filed questioning his action, the High Court of Orissa took objection to that and initiated contempt proceedings against him. The High Court of Orissa held as follows:-
"The contemner is a senior judicial officer who has already put in 23 years of service; having been recruited as a Munsif he has now risen to the rank of District Judge. We regret to find that though he has functioned as a judicial officer for about 23 years he has not been able to pick up the approach and altitude of a judicial officer and has actuated by the bias so often manifested in actions of the executive to-day while disposing of a judicial proceeding and when found fault with has come up with the stand that he was acting administratively".
xxxx xxxx xxxx "The conduct of the contemner far from being bona fide is clearly a mala fide one and he intentionally avoided to follow the decision of this Court by advancing grounds which were most inappropriate."
The High Court found him guilty of contempt of Court and admonished him in open Court and directed him to pay Rs. 300/-as costs of the proceedings. That order of the High Court was questioned before the Supreme Court on the ground that me said comment found objectionable by the High Court, neither interfered with the administration of justice nor scandalised the High Court and it was accepted that for such a view there was no precedent either way. A three Judges Bench of the Supreme Court held as follows:
"But the absence of a precedent should not preclude an act being held to be contempt merely because it is novel or unusual provided it is comprehended by the principles underlying the law of contempt of Court. The absence of precedent should however put the Court on guard that the area of contempt is not being unduly expanded (vide 17 Corpus Juris Secundum 21). The present case then is to be decided on principles and analogy.
Contempt of Court is disobedience to the Court, by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the Court''s order; it also signifies such conduct as tends to bring the authority of the Court and the administration of law into disrepute, (vide 17 Corpus Juris Secundum pages 5 and 6; Contempt by Edward N. Rangel (1939) Edn. 14, Oswald''s Contempt of Court (1910) Edn. 5 )
It is a commonplace that where the superior Courts'' order staying proceedings is disobeyed by the inferior Court to whom it is addressed, the latter Court commits contempt of Court, for it acts in disobedience to the authority of the former Court. The act of disobedience is calculated to undermine public respect for the superior Court and jeopardise the preservation of law and order. The appellant''s case is to be examined in the light of the foregoing principles and analogy".
The Supreme Court agreed with the High Court that Judicial Officer working as Commissioner of Hindu Religious Endowments (the appellant before the Supreme Court) deliberately avoided to follow its decision by giving wrong and illegitimate reasons and that his conduct was "clearly mala fide". The Supreme Court further observed as follows:-
"The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior Court''s disobedience to the specific order of a superior Court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the Court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.
Our view that a deliberate and mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt".
There is also the case of Muhammed Shaft v. QadirBakhsh AIR 1949 Lah 270. A Magistrate before whom proceedings u/s 145 of the Criminal Procedure Code were pending, was told that a Subordinate Judge granted injunction to one of the parties before him not to continue with the said proceedings u/s 145. As soon as this was done, the Magistrate completely lost his temper, got up from the chair and said that it was "a foolish order, passed by a foolish Subordinate Judge and secured by a foolish lawyer" and declared that he was not going to take notice of it. In the contempt proceedings initiated against the Magistrate, a Full Bench of the Lahore High Court observed as follows:-
"It is of the greatest importance that the prestige and dignity of the Courts of law should be preserved at all costs. There cannot be any thing of greater consequence than to keep the streams of justice clear and pure, so that litigants may have the utmost confidence that they would be treated in a considerate manner by Courts of law. No Judge or Magistrate has any business to lose his temper in a Court of law, to get up from his chair and to make contemptuous remarks about other Judges or Counsel appearing on either side. If parties to a litigation feel that they are likely to be subjected to insulting behaviour at the hands of the presiding officers of the Courts it would shake all confidence in the administration of justice and would thus pollute the stream of justice".
It was Lord Chancellor Hardwicke, who said in 1742 in St. Jame''s Evening Post Case: Roach v. Gapvan (or Hall), 26 English Reports 683 that there cannot be any thing of greater consequence, than to keep the streams of justice dear and pure, that parties may proceed with safety both to themselves and their characters".
We have also to note here that the power of the High Court to punish for contempt of itself is a constitutional power conferred under Article 215 of the Constitution, It is a jurisdiction which is inherent in the Court itself as a Court of Record. In Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur through Registrar, the Supreme Court reviewed the law and held that" the power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act and their inherent power is elastic, unfettered and not subjected to any limit."
The Supreme Court stated the law as follows:-
"The position of law that emerges from the above decisions is that the power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and that the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the constitution of India (See D.N. Taneja Vs. Bhajan Lal, and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself".
Keeping in view the legal position stated above, we have to examine now whether the respondent wilfully neglected to carry out the order of this Court dated 26-6-1995. The petitioners herein presented the contempt case on 9-8-1995 complaining that the respondent had been adjourning the matter unjustifiably - 8 times till then - eventhough their Counsel was ready on all occasions and in fact argued the matter on 18-7-1995 itself. They allege that the respondent did not comply with the directions of this Court in the said order which amounted to deliberate and wilful disobedience of that order. This Court directed in that order that "the learned Judge shall immediately take it (I. A. No. 587 of 1995) on file and dispose of the same at the earliest without any delay". Nodoubt, subsequently on 4-7-1995, this Court observed that "the trial Court will take stock of the matter and dispose of the case on merits after giving reasonable opportunity to the other side and without adjourning it only on the ground that there is a boycott by the advocates" and that "the learned Principal Subordinate Judge will also take note of the direction already given". It has to be noticed here that suit OS. No. 107 of 1995 and LA. No. 587 of 1995 were posted to 11-7-1995. On that date, the petitioners herein (defendants in the suit and respondents in the LA.) filed counter in the I.A. and sought vacation of the interim injunction. On that day, the plaintiff ought to have been present with his advocate. There was noneed for notice to him when the matter was originally posted to that date only. Yet, the docket endorsement shows that the respondent directed as follows:-
"Interim Injunctions & Notice to Respondents 1 to 3 served through Court. A.M. Krishna filed Vakalat for R1 & R2. R3 called absent and set ex parte as service is held sufficient. Counter also filed. The Counsel also filed H.C. Order in A.A.O. No. 766/95 dated 26-6-95 alongwith a memo.
In view of the High Court direction, issue notice to other side alongwith Counter copy and call on 17-7-95. Meanwhile the counsel for the respondents directed to file proof of service".
The subsequent docket entries till the present contempt case was filed are as follows:-
"17-7-95: Proof of service filed. Heard respondent in part. Petitioner called absent. No representation. A.O.B. Call on 18-7-95. 18-7-95: Respondents further arguments. Further arguments heard. Petitioner present and filed petition for adjournment. Posted to 21-7-95 to hear the respondents. 21-7-95: Petitioner''s arguments. On petition by petitioner, adjourned to 24-7-95. 24-7-95: Petitioner''s arguments. Call on 25-7-95. 25-7-95: Petitioner arguments. At request of petitioner posted to 27-7-95. Petitioner is also directed either to argue the matter or to file written arguments. Otherwise, further step follows. 27-7-95: Petitioner''s arguments. On petition by petitioner-plaintiff, adjourned to 31-7-95. 31-7-95: Petitioner''s arguments. In view of the Orders in LA. 666/95 call on 2-8-95. 2-8-95: Petitioner''s arguments. At request of petitioner, posted to 7-8-95 for arguments. 7-8-95; Petitioner''s arguments. P.O. is on O.P. A.O.B. Call on 16-8-95"
It is admitted by the respondent that "A.O.B. stands for advocates on boycott. From the above it is manifest that there was no good ground for requiring the Counsel for the petitioners herein to serve notice on the plaintiff when the matter was posted originally to 11-7-1995 itself and there was no explanation for the absence of the plaintiff or his advocate on that date; there was also no good reason for adjourning the matter to 18-7-1995 when on 17-7-1995 proof of service was filed by the advocate for the petitioners herein and there was no reason shown for the absence of the plaintiff and there was no representation on his behalf. It is obvious that the matter was adjourned only because the advocates were on boycott because A.O.B. was noted on that date. The arguments on behalf of the petitioners herein were heard on 17-7-1995 and 18-7-1995 and the matter was posted to 21-7-1995 for hearing arguments on the plaintiff''s side. Thereafter, it was adjourned to 24-7-1995,25-7-1995,27-7-1995 and 31-7-1995 and then again to 2-8-1995 in view of the orders in I.A. No. 666 of 1995. From 2-8-1995 again it was adjourned to 7-8-1995 and on that day the respondent was not present as he went to Puttur. He obviously left without instructions and, therefore, the office posted the matter to 16-8-1995 because advocates were on boycott as A.O.B. noted indicates.
It is interesting to note that on 16-8-1995, to which date the matter was posted for the plaintiff''s arguments, the plaintiff filed a petition for adjournment on the ground of compromise as talks were going on and the matter was readily adjourned to 23-8-1995 for reporting compromise noting. that "the other side has no objection for it". In para 12 of the counter-affidavit, dealing with what happened on 16-8-1995, the respondent states as follows:-
"I submit that on 16-8-1995, the Counsel for petitioners herein (Respondents in I.A. No. 666/95) represented that he has no objection for the Report of the Amin and I, therefore, closed I.A. No. 666/95 and the Injunction Petition I.A. No. 587/95 was taken up. However, as the petitioner in I.A. No. 587/95 filed a petition in the said I.A. No. 587/95 on the same day for adjournment on the ground that compromise talks between the parties are going on, I adjourned the matter to 23-8-1995 for reporting compromise as the other side (i.e., the Petitioner in the above Contempt Case) had no objection for it. I, therefore, respectfully submit that I did not adjourn the matter on any flimsy or unjustifiable ground or on the mere ground that the advocates were on boycott of the Courts but only because both the Counsel consented for the same".
On 14-11-1995, when arguments were advanced in the Contempt Case, we noted as follows:-
"We asked the learned Counsel for the respondent to show us the petition filed on the same day for adjournment. That petition is produced before us. It is in Telugu. Inter alia, it states that as the petitioner''s advocate (petitioner in I.A. No. 587/95) is not available the matter should be adjourned by ten days. At the end, there is an addition by a different pen to the effect that as attempts were being made for compromise adjournment should be given. The respondent is specifically asked by us about this addition. He admits that this last sentence was not there when the petition was presented. He states that the petitioner submitted orally before him on that date that compromise talks were going on and therefore the matter should be adjourned. He states mat he pointed out to the petitioner that that was not mentioned in the petition and thereafter the petitioner was allowed to add that in the petition.
This is recorded in open Court and read out and the respondent accepts the same as correct."
On 23-8-1995, the plaintiff was absent: there was no representation on his behalf and the matter was posted to 30-8-1995 for orders. On 30-8-1995 I.A. No. 720 of 1995 was filed by the plaintiff to re-open and the matter was posted to 31-8-1995; and on 31-8-1995 I.A. No. 720 of 1995 was allowed and the matter was posted to 4-9-1995 to hear the plaintiff finally as last chance. On all these days to which the matter was being posted, the Counsel for the plaintiff was not present. Thereafter also the matter was adjourned from time to time and finally on 13-10-1995 orders were reserved in the I.A.; on 21-10-1995, it was re-opened suo motu "to hear further arguments on the admissibility of the agreement dated 13-2-1995 u/s 47-A of Indian Stamp Act" and it was posted to 24-10-1995, and then to 25-10-1995 and finally order dismissing the LA. was pronounced on 3-11-1995.
The question, therefore, is whether the respondent did not make a fetish of giving reasonable opportunity to the plaintiff and kept on adjourning the matter merely for the asking to accommodate him for the absence of his advocate. The direction given by this Court to the respondent was that he should dispose of the matter "at the earliest without any delay". We are quite clear in our mind, looking at the number of adjournments granted and the reasons given or not given for granting adjournments, that the respondent did not comply with that direction of this Court. The manner in which the respondent dealt with the matter will have to be examined to ascertain whether there was wilfulness or indifference or casualness in making a show of compliance with the direction of this Court for a period of nearly four months from 11-7-1995 when the order of this Court was brought to his notice to 3-11-1995 when he finally pronounced the order in the LA. vacating ex parte injunction granted by him on 14-6-1995 i.e., nearly 5 months back inspite of all efforts made by the petitioners herein.
We have to keep in view also the factual matrix which gave rise to the present proceedings- we have to keep in view these facts and circumstances for considering the manner in which I.A.No. 587 of 1995 was dealt with by the respondent.
The facts alleged in the plaint in O.S. No. 107 of 1995 and the affidavit in support or I.A. No. 587 of 1995 are as follows.
The suit is based on an agreement of sale dated 13-2-1995 said to have been executed by G. Suryanandam, the husband and father of the first and second petitioners herein respectively, in favour of the plaintiff agreeing to sell the plaint schedule property of the extent of Ac. 1.60 cents with buildings thereon for Rs. 13,75,000/- It recites that the property was self-acquired property of G. Suryanandam and that plaintiff paid Rs. 13,25,000/- on the date of agreement and that possession of the plaint schedule property was handed over to the plaintiff and that the balance of Rs. 50,000/- would be paid at the time of execution of sale deed. G. Suryanandam died on l3-3-1995. He purchased the plaint schedule property under three registered sale deeds dated 26-9-1987, 14-12-1988 and 11-9-1989, copies of which were filed along with the plaint. In spite of several requests, G. Suryanandam did not come forward to execute the sale deed even though the plaintiff was ready to pay the balance consideration of Rs. 50,000/-: After the death of G. Suryanandam, his widow and two daughters (i.e., the petitioners herein and the third defendant who was set ex parte in the I.A.,) first attorned and agreed to execute and register a sale deed and also gave an affidavit that they were the only heirs, but later went back and were making hectic efforts to disturb plaintiff''s possession. Hence the suit. The plaintiff also filed the sale deeds under which the vendors of G. Suryanandam acquired title to the plaint schedule property. He alleges that he had been in exclusive possession and enjoyment of the plaint schedule property eversince the said agreement and that the petitioners herein were attempting to disturb his possession and, therefore, should be restrained by an interim injunction pending the suit. That is the basis for LA. No. 587 of 1995. The basis for seeking ex parte interim injunction against the widow and two daughters of late G. Suryanandam, is stated by the plaintiff in his affidavit dated 14-6-1995 in support of I.A., as follows:-
"They are liable to execute a regular sale deed as and when I demanded. In spite of my demands, they have not been co-operating to do so since two days and they are not justified to do so. I am not a match for the defendants and they are ... large in number. They are out to do anything. If they ore allowed to do so, I will be put to irreparable loss and hardship... if notice of this petition was to be ordered, certainly I will be dispossessed from the plaint schedule property".
We may add that from the original affidavit we find that the words "since two days", and the sentences "I am not a match for the defendants... I will be put to irreparable loss and hardship" were written in the hand at the end of the typed portion of para 8 and unattested.
In the counter filed in I.A. No. 587 of 1995 on 11-7-1995, the petitioners herein allege that the agreement of sale dated 13-2-1995 is a fabricated document and that the signatures of late G. Suryanandam were forged. They state that G. Suryanandam was not the owner of the plaint schedule property, and that he purchased it for and on behalf of a registered Society named as "Silver Bells Educational Society, Tirupati" as its Correspondent and Secretary, and that the same was mentioned in the registered sale deeds dated 26-9-1987, 14-2-1988 and 11-9-1989 under which the said property was purchased. Plaintiff and his close relative, by name, J. Radhakrishna Reddy figured as attetors in the said sale deeds and they knew that the plaint schedule property was purchased for the said Society. Petitioners herein submit that the suit agreement of sale dated 13-2-1995 is hit by the provisions of the Indian Stamp Act and the Registration Act as it was not on a proper stamp paper and registered as required by the said Acts. They allege that the plaintiff had no means to pay such a large sum of Rs. 13,25,000/-, and that G. Suryanandam did not receive any such large amount. They (petitioners herein and the third defendant) were never approached by the plaintiff and they never agreed to execute the sale deed. They also state that till G. Suryanandam died, he was in possession of the plaint schedule property and that the first petitioner herein was running "Silver Bells Central School" in the plaint schedule property, and that after G. Suryanandam''s death, they continued to be in possession and enjoyment of the plaint schedule property as the first petitioner herein was elected as Secretary of Silver Bells Educational Society, which owned the plaint schedule property. They further state that G. Suryanandam, during his life time, mortgaged the plaint schedule property to the State Bank of Hyderabad at Tirupati in his capacity as Secretary of Silver Bells Educational Society by depositing the three title deeds under which the plaint schedule property was purchased and obtained loan of Rs. 10,00,000/-, which was sanctioned for the purpose of construction of school building, and that the said title deeds are with the Bank. They allege that "the plaintiff with the connivance of the said J. Radhakrishna Reddy filed the above suit basing on the forged and fabricated agreement of sale deed" which J. Radhakrishna Reddy signed as a witess. On that basis, the petitioners herein contend that no prima facie case was made out by the plaintiff for grant of injunction. They also filed several documents in support of their case by 17-7-1995.
The first petitioner herein filed O.S. No. 477 of 1995 in the Court of the Principal District Munsif at Tirupati against one S.V. Kumar, described as Correspondent of S.V-K. Coaching Centre, Tirupati and J. Radhakrishna Reddy (who figured as attestor in the sale deeds and also in the agreement of sale) and also filed LA. No. 1031 of 1995 in the said suit under Rules 1 and 3 of Order 39 and 151 of the Code for injunction restraining the defendants in that suit from interfering with her peaceful possession and enjoyment of the very same property which is subject matter of O.S. No. 107 of 1995 on the file of the Principal District Munsif at Tirupati alleging that they were trying to occupy Silver Bells Educational Society''s property wherein she was running Silver Bells Residential Central School recognized by the Central Board of Secondary Education, New Delhi. She also alleged that on 10-7-1995 attempts were made to dispossess her. On 11-7-1995 the learned Principal District Munsif directed the respondents in I. A. No. 1031 of 1995 to maintain status quo i n respect of the said property as on that day till 20-7-1995. Subsequently, the said status quo was directed to be continued during the pendency of that suit. The first petitioner here in also filed I.A. No. 1032 of 1995 in that suit for appointment of an Advocate Commissioner which was allowed and pursuant to the warrant issued, the Advocate Commissioner, Mr. K. V. Varma, filed his report stating that he visited the suit locality on 12-7-1995 at 4.00 p.m., and that the advocate for the first petitioner herein and J. Radhakrishna Reddy (respondent No. 2 in I.A. No. 1032 of 1995) were present at that time. He also filed a rough sketch of the building in the plaint schedule property. It is stated in that report as follows:-
"2. I submit that I am herewith filing a rough sketch which may be read as parcel of my report. There is a two storied buildings in the petition schedule property. In the ground floor portion, petitioner and her daughter G. Sudharani and her new born male child and her husband Mr. Benarjee were staying and one servant maid was present. The said portion was equipped with domestic house hold items, sofa-cum-bed, sterio-tape recorder; television and one Telephone No. 21390 and utensils and electrical fittings, bulbs, fans and there was power supply, lights and fans were running at the time of my inspection in that house. I enquired to Respondent No. 2 and he agreed the petitioner/ plaintiff alongwith her family residing in that portion continuously till today.
On the left side of house portion there was two storied buildings. In ground floor, there are 5 rooms and first floor also consisting of four rooms. In these rooms, there are suit cases, books, mats, bed sheets and other items were lying.
On the left side of house portion, five places S.V.K. symbols with blue colour were written. In front of ground floor portion rooms 3 symbols of S.V.K. and 1st floor portion upper walls 2 symbols of S.V.K. were found".
The affidavit filed in support of the petition in LA. No. 1031 of 1995 in O.S. No. 477 of 1995, and the docket order thereon dated 11-7-1995 of the learned Principal District Munsif at Tirupati, and the report of the Advocate Commissioner together with the rough-sketch attached thereto in I.A. No. 1032 of 1995 in the said O.S. No. 477 of 1995 were filed by the petitioners herein in LA. No. 587 of 1995 on 17-7-1995, and they were in fact subsequently marked together as Ex.B-19. All these facts were also stated by the petitioners herein in their counter to LA. No. 666 of 1995 objecting to the appointment of the commissioner or amin because already an advocate commissioner submitted a report. It is significant that in the affidavit dated 21-7-1995 in support of LA. No. 666 of 1995 the plaintiff stated that subsequently he handed over possession of the premises to S.V.K. Residential Junior College and "at present" s they were running college in the plaint schedule property. The amin''s report dated 7-8-1995 was filed in Court on 7-8-1995 itself. It shows that live petitioners herein were found living in the residential portion of the plaint schedule property and that they were also having telephone be a ring No. 21390.
It has to be noted that the plaintiff also filed an I.A., for granting police aid by giving appropriate directions to the Sub-Inspector of Police or Station House Officer, Tirupati East Police Station to give his aid in implementing the orders of injunction granted by the Principal Subordinate Judge. Though the said I.A., was not numbered, it was also being called along with I.A. No. 587 of 1995 and it was finally rejected on 3-11-1995 since I.A. No. 587 of 1995 was dismissed.
The above narration is only to complete the factual scenario. We are nor concerned in this contempt case with the merits of the suit of the plaintiff or of LA. No. 587 of 1995. We are only concerned with whether the respondent diligently and implicitly complied with the directions of this Court for disposing of the LA., "at the earliest without any delay". It is clear from the above narration that all the material for the disposal of the LA. was before the respondent by 17-7-1995. The adjournments granted by the respondent in the I.A. from 11-7-1995 onwards clearly disclose that he wilfully and intentionally was accommodating the plaintiff who was not able to bring his advocate to the Court in view of the advocates boycott, the plaintiff''s advocate being the President of the local Bar Association. The plaintiff''s advocate never attended the respondent''s Court till the boycott was lifted on 5-9-1995. Under those circumstances if the respondent was inclined to diligently follow the directions of this Court he ought to have gone through the papers himself, which were all before him by 17-7-1995 and disposed of the matter keeping in view the provisions of Rule 3-A of Order XXXIX of the Code which injuncts as follows:
"3-A. Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability"
Reasonable opportunity to be given to the parties concerned has to be understood in this context. Inability of the plaintiff to bring his advocate cannot be a ground for allowing him to enjoy an ex parte interim injunction especially when the petitioners herein, who were the contesting respondents in the I.A., were ready and their Counsel was already heard. Nothing prevented the respondent from, going through the material and disposing of the matter on merits, which he ought to have done under the circumstances. Instead, the respondent kept on adjourning the I.A., from 11-7-1995 onwards till 7-8-1995. There was no good reason what so ever for adjourning LA. No. 587 of 1995 because the plaintiff preferred I.A. No. 666 of 1995. The wilfulness of the respondent in not implicitly following the directions of this Court is made explicit by the manner in which he accommodated the plaintiff when he sought for adjournment on 16-8-1995 to which we have adverted to earlier. Bramwell, L.J., said in Lewis v. The Great Western Railway Company (1877)3 QBD 195:
''"Wilful misconduct'' means misconduct to which the will is a party, something opposed to accident or negligence........."
In R. v. Senior (1895) All. E.R 511 Lord Russel, C.J., held that "Willfully means done deliberately". Bowen, L.J., further clarified in Re Young and Harston''s Contract (1855)31 Ch.D. 168 as follows:-
"The other word which it is sought to define is "wilful". That is a word of familiar use in every branch of law although in some branches of the law, it may have a special meaning, it generally, as used in Courts of law, implies nothing blameable, but merely that the person of whose action or default the expression is used is a free agent, and mat what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent."
We have to consider the matter before us not looking at each adjournment granted but on an overall view of the manner in which the respondent proceeded with the matter and adjudge his attitudg. We find that the dilatory and leisurely manner in which he dealt with the matter discloses a certain casualness and unconcerned approach to the directions of this Court which means a wilful disregard of the orders of this Court and, therefore, constitutes contempt of this Court. As a Judicial Officer, the respondent should realise that his first duty is to the institution of justice and that he should not in any manner hinder or hamper the even flow of justice.
In Jahurul Islam Vs. Abul Kalam and others, the Supreme Court observed as follows:-
"We also keep on record our disapproval of the interim order passed by the learned District Judge, 24 Paraganas (South) as referred to herein beforehand the manner in which the application for vacating interim order was dealt with by the learned District Judge.. It appears to us that in view of the reported decisions of this Court as indicated hereinbefore, the learned District Judge should not have passed the interim order and in any event should have vacated the same when the petitioner apprised him of the facts and circumstances of the case. It was unfortunate that the learned District Judge postponed the hearing of the application for interim injunction to a very distant date with inexplicable stubbornness. It may be indicated here that very recently in similar circumstances, this Court hauled up both the applicants for interim order and the presiding Judge passing interim order despite the directions of this Court to hand over peaceful and vacant possession in Contempt Applications Nos. 235-236 of 1993 in Special Leave Petitions (Civil) Nos. 10425-26 of 1991 and disposed of the contempt proceeding after the applicant and the Judge appeared in person and tendered unqualified apology."
In the present case, the respondent did not tender any apology in his counter-affidavit dated 4-11-1995. He sought the dismissal of the contempt case with costs. He did not even mention that he disposed of the I.A. on 3-11-1995. In his additional affidavit dated 10-11-1995, he offered apology in the following terms:
"I offer my unconditional apology for any act I may have done inadvertently and pray this Hon''ble Court to exonerate me in the interest of justice in view of the facts and circumstances stated above and in my earlier affidavit..."
In view of this we close the contempt proceedings recording that the conduct of the respondent merits admonition and a warning to be careful in future. He shall heed this.
A copy of this order shall be placed before the Hon''ble the Chief Justice for information.