Surajmull Nagarmull vs Dilip Kumar Das, Advocate

Bhagabati Prosad Banerjee, J.—The opposite party/contemner, against whom the contempt rule has been issued, is an Advocate, practicing in the Howrah Court, who was to appear before this Court on the returnable date, i.e., on 5th of August, 1996. The contempt rule had been duly served and was received by the contemner/Dilip Kumar Das on 27-7-96. But he willfully and deliberately did not appear-before this Court in terms of and in accordance with the directions given in the contempt rule. Previously, all attempts to enforce his personal attendance before the court failed. As because an Advocate who is a contemner, is not appearing to Court in spite of various attempts being made, it is necessary to pass an order for his attendance adopting a drastic procedure, and the reasons for adopting such a drastic procedure are set out below.

There were serious allegations made against Mr. Dilip Kumar Das, Advocate, practising in the Howrah Court. It was alleged that the said learned Advocate, on the strength of the Vakalatnama given by the petitioner Soorajmull Nagarmull, had withdrawn a Sum of Rs. 1,30,182.95p. deposited by the tenants in the pending proceedings on August 30, 1991; but he had not paid the same to the petitioner/landlord. Thereafter, the petitioner cancelled the Vakalatnama by a letter and also filed a petition before the court below, praying for cancellation of the Vakalatnama, dated 28th February, 1986, on the ground stated in the: said petition.

It also appears that the matter, appeared on 20th January, 1992, before the learned Second Assistant District Judge, Howrah, and that no order was passed on the said application and the said application was kept pending and keeping the said application pending, an order was passed on January 24,. 1992 allowing the said Advocate to withdraw several sums, viz., Rs. 65,092/-, Rs. 81,365/- and Rs. 965,46.61p. The court below allowed the said learned Advocate to withdraw such huge sum of money when there was serious allegation pending in the petition before the Court below. A revisional application u/s 115 of the CPC was filed before this Court, which was assigned by the then learned Chief Justice to the Bench presided over by B.P. Banerjee, J.

The rule was issued on the ground that the skid learned Advocate, Mr. Dilip Das, had deliberately and wilfully failed and neglected to carry out the order passed by this Court on August 11, 1992 by not depositing the amount withdrawn, by him, which was withdrawn by him from the court below and did not handover the same to his client, namely, the petitioner herein.

On May 25, 1991, an order was passed by a Division Bench directing the Court below not to allow any amount to be withdrawn by the said Sri Dilip Kumar Das from the Accounts Department in respect of the money already deposited or to be deposited by the tenants concerned. The petitioner sought to serve copies of the said revisional application on all the parties.

A copy of the said application was sought to be served by the learned Advocate by the Registered Post, but the said Sri Dilip Das refused to accept the said registered cover. The said registered cover was filed before this Court and was kept on record.

Considering the facts and circumstances of this case, an order was passed on 11-8-92, directing the learned Advocate, Mr. Dilip Kumar Das, to redeposit the said sums of Rs. 1,30,182.95, Rs. 65.092. Rs. 81,365, and Rs. 96,546.61p., to the court below, within ten days from the date of the service of the said order. The learned Advocate for the petitioner was directed to communicate the said order to the said teamed Advocate. Sri Dilip Kumar Das, by ordinary post, another by registered post, as well as by personal service. Copy of the said order was sent down to the court below at the cost of the writ petitioner, by special messenger.

It was further ordered that the said learned Advocate, Mr. Dilip Kumar Das, should not be allowed by the Court below to represent the petitioner and/or to take any step in the said title suit No. 86 of 1982 and should not permit the said learned Advocate to withdraw any amount for and on behalf of the petitioner in the said suit.

It was further observed by this Court that the redeposit by the learned Advocate of the money in the court below will be without prejudice to the claim of the learned Advocate, if any, regarding, regarding his professional fees and cost which the will be entitled to raise before this Court on the next date of the hearing. The said Sri Das was personally directed to he present before this Court on September 1, 1992.

Persuant to the order passed by this Court on August 11, 1992, Mr. Dilip Kumar Das, learned Advocate, did not comply with the directions given by this Court nor appeared before this Court on September 1, 1992 when he was directed to be personally present. Copy of the letter of the learned Advocate for the petitioner forwarding the letter to the said learned Advocate returned answered with the postal remark ''refused'', and subsequent communication was also refused.

Accordingly, another order was passed on 23rd February, 1994, directing the said Sri Dilip Kumar Das, Advocate, as a last chance to appear before this Court on March 36, 1994, at 10,30 am, failing which appropriate order should be passed for his appearance before this Court with police help.

this Court also passed an order on that date as because Sri Das was an Advocate, the same should be served. A copy of the order was served upon the Secretary of the Bar Association, Howrah, who was requested to communicate the said order to the said Sri Dilip Kumar Das for complainance. The learned Advocate for the petitioner was also directed to take steps, inspite of notice being served upon the said Sri Dilip Kumar Das through the Secretary of the Bar Association. Howrah Court, to appear before this Court, he did not appear before this Court It also appears that Mr. Tarun, Kumar Acharyya the learned Advocate of the Howrah Court, who was also, the Secretary of the Howrah Bar Association, informed Sri Dilip Kumar Das, Judges Court Advocate, Howrah about the order passed by this Court and whereby he was informed that he was required to be present before this Court on March 16, 1994, as a last chance in connection with the said case. The said Secretary of the Bar Association requested him to take necessary steps and do the needful to that effect. A xerox copy of the said letter, along with the annexure enclosed, therein, was also served upon the said Dilip Kumar Das. On the said letter. Mr. Dilip Kumar Das made an endorsement to the following effect : "Mr. President, procedure is not proper. All the papers returned herewith. Convey all concerned.

Yours faithfully,

Sd/- Dilip Kumar Das,

Life Member, Howrah Bar Association,

8-3-1994 at 12.20.

When all the attempts for the voluntary appearance of Sri Dilip Kumar Das failed, and that the opposite party/contemner, Mr. Das was determined not to appear before this Court voluntarily, under these compelling circumstances, this Court issued a contempt rule against Sri Dilip Kumar Das on 28-8-1995. The contempt rule has been served, but the said Sri Dilip Kumar Das, as it appears, is determined not to appear before this Court voluntarily This is not a case of technical contempt but he has substantially interest with the due cause of justice.

this Court, having regard to the fact that Sri Das is a member of profession, exhausted all the means for his appearance voluntarily before this Court. But, it appears that the said Dilip Kumar Das will not appear before this Court unless he is forcibly brought before this Court for upholding the dignity and authority of this Court. A contemner is bound to appear before the court on the returnable date, and Mr. Dilip Kumar Das, being a learned Advocate, a learned Member if the profession, is fully aware of the consequences of such non-appearance before the court when he was called upon to do so.

Under these peculiar and unprecedented situation, we direct the Superintendent of Police, Howrah, to depute any Officer of its choice including the Officer-in-Charge of the concerned Police Station with sufficient number of police force for the purpose of physically producing the said Dilip Kumar Das, of 69/1, I.R. Belilios Lane, Howrah, who is also a Member of the Howrah Bar Association Judges'' Court, Howrah, before this Court on August 14, 1996, at 10.30 am. Accordingly, the police authorities are directed to produce the said Sri Dilip Kumar Das before this Court physically. A xerox copy of this order countersigned by the Asst. Regular (Court) be handed over to the learned Advocate, appearing on behalf of the petitioner, who is directed to hand over the copy of this order to the Superintendent of Police, Howrah, so that the Superintendent of Police may act and take steps for compliance of this order immediately.

Dibyendu Bhusan Dutta, J.

I agree