Conempt Third Party

MANU/DE/0426/1982
Equivalent Citation: 1983CriLJ495, 22(1982)DLT33, 1982RLR553

IN THE HIGH COURT OF DELHI
Criminal Contempt Appeal No. 2 of 1982
Decided On: 25.05.1982
Appellants: Bimal Chandra Sen
Vs.
Respondent: Kamla Mathur and Anr.
Hon'ble Judges/Coram:
A.B. Rohtagi and Leila Seth, JJ.
Subject: Criminal
Subject: Contempt of Court
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order 39 Rule 2
Case Note:
Civil Procedure Code - Order 39, Rule 2 vis-a-vis contempt of Court Act, Sections 10 & 12--
Injunction order issued 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 the order of 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 injunction order issued by the subordinate Judge. Dismissing the
petition.
Held:
1. For the disobedience of the injunction order or 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. Under Order 29, Rules 2-A, C.P.C. any detailed enquiry must be left to the court which has passed
the order and which is fully acquainted with the subject-matter of its own order of temporary
prohibitory injunction. It is more desirable that the court which made the order of 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 or orders.
6. Civil contempt is basically a wrong to the person who is entitled to the benefit of the
court order and is essentially remedial and coercive. Civil contempt of court exists to provide the
ultimate sanction against him who refused to comply with the order of a properly constituted court.
Once the offender complies with the court's order he 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 or orders either 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 court orders.
Civil contempt are, Therefore, 'offence' essentially of a private nature since they deprive a party of the
benefit for which the order was 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
or order.
JUDGMENT
Avadh 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 under Order 39 rules 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 injunction order. From this order they, 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 Sections 10 and 12 of the Contempt
of Courts Act 1971 (the Act) read with Article 215 of 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 the order of 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, by order dated 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 Sections 10 and 12 of 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
injunction order was issued hy the .subordinate judge under Order 39 rules 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 injunction order and says that the wife as the principal offender and the husband as an
'aider and abettor' be punished for contempt of court under Sections 10 and 12 of the Act and
Article 215 of the Constitution. Will such a petition lie in this Court in respect of an
injunction order issued by the subordinate Judge ?
(5) The principal argument of plaintiff's counsel is that Order 39 does 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 Sections 10 and 12(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 injunction order. For disobedience of the injunction order rules 2A of Order 39 of 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 other order made under rule 1 or rule 2 or
breach of any of the terms on which the injunction was granted or the order made, the Court granting
the injunction or making the order, or any court to which the suit or proceeding is transferred,
may order the property of the person guilty of such disobedience or breach to be attached, and may
also order such 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 an order made 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 the order. 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 injunction order shall 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 an order of 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 inanition order or 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 Section 10 of 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
that Order 39 rule 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 the order and which is fully
acquainted with the subject-matter of its own order of temporary prohibitory injunction. "It is clearly
more desirable that the court which made the order of 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 Sections 10 and 12 of the Act
and Article 215 of 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 injunction order or 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 under Order Xxxix, Rule 2-A or
under Order XXI. 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
under Order Xxxix rule 2-A for taking action for the disobedience of an order of 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 an order of 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 injunction order. 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
that order 39 rule 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 no order is 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 Another 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.".......... '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 noorder 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 orderis directed."
(15) In that case the District Judge had not only punished for contempt of court the persons who were
guilty of breach of his order, 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 the order against 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/0065/1939 held that the terms of Order 39 rule 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 Thammal Air 1938 Mad. 927 Loach Cj and Ayyangar J. took a
contrary 545(16) to a case of insolvency under Section 58(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/0060/1938 was 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.
414 46 L. T. 279 and 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 injunction order vests 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 Section 2(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 in Order 39, 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 injunction order or 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 injunction order ? It can only be, I think, the
court of the subordinate judge, which granted the injunction order. The High Court cannot decide in
lieu of the court granting the injunction. The subordinate judge is the best person to interpret his
own order and to find, after taking evidence, whether the defendant is guilty of willful disobedience of
the injunction order issued 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
and orderly administration 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 in order to 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. 661 per 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 or orders. 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 an order of the court. The law provides
sanctions for an enforcement of the process and orders of a court. Although civil contempt is basically
a wrong to the person who is entitled to the benefit of the court order, there has always been a
punitive element in the civil contempt disobedience. of a court order of 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 the order of a properly constituted court. The jurisdiction in respect of civil
contempts is primarily remedial, once the offender complies with the court's order he 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 or orders either 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 court orders.
Civil contempts are Therefore "offences" essentially of a private nature since they deprive a party of
the benefit for which the order was 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
or order. (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 section 2(b) of the Act. It is specifically dealt with in Order 39 of 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 an order enjoining 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 the order which 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. Sections 10 and 12 of 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. order except the person to whom the order is directed. The reason is that Indian
law is codified and the statute will govern us. Therefore my conclusion is this. Order 39 does 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
an order of 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 the order or 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. An order of 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 the orderspunishing persons for
disobedience to an order of 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. 302 per 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.
The order of injunction was made by the subordinate judge under Order 39, Civil Procedure Code .
From his order appeal 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 of Order 39 by the subordinate judge. An appeal lies from
hisorder under that rule. An order under rule I, rule 2 and rule 2A of Order 39 has been made
expressly appealable under Order 43 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's order.
(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 the order to 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 of Order 39 of 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 his order under Sections 10 and 12 for 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
any order punishing her for her misdeed, while the abettor would have a right "if appeal to the
Supreme Court from our order punishing him for "aiding and abetting" the principal to commit the
Forbidden act. The disrespect to the court which made the order that 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 specific order of the court made on him in
the suit is "civil contempt". The order is 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 the order of 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 the order was made chooses not to insist on its enforcement. A. G. v. Times
Newspapers Ltd. (1973) 3 Wlr 298 per 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 the order virtually 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
the order which he had made. Contumacious disregard and contemptuous disobedience if
the orders of 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 the order of 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 this order to the court of appeal. In the appeal the order of 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's order See 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 an order of the court irrespective of the nature of the thing ordered to 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 court order for 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 no order as to costs. I make it clear
that if the plaintiff desires he may move an appropriate application to the subordinate judge under Rule
2A of Order 39, Code of Civil Procedure for disobedience of the order of 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/1350/2001
Equivalent Citation:
IN THE HIGH COURT OF PUNJAB AHD HARYANA
C.O.C.P. No. 1540 of 2000
Appellants: Gajjan Singh
Vs.
Respondent: Tersam Lal, Assistant Sub Inspector of Police
Bakhshish Kaur, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. J.S. Gill, Adv.
For Respondents/Defendant: Mr. B.R. Mahajan, Adv.
Catch Words
Mentioned IN
Acts/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:

Discussed

3

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 dismissed
JUDGMENT
Bakhshish Kaur, J.
1. The petitioner has filed this contempt petition under Section 12 of 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 Section 151 CPC
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 Section 12 of the Contempt of Courts Act.
10. In Dr. Bimal Chandra Sen, Delhi v. Mrs. Kamla Mathur, Delhi and another MANU/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 Section 10 of 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 Section 2(b) of the Contempt of Courts Act. It is
specifically dealt with in Order 39 of the Code. Section 2(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. Mittai AIR 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
another MANU/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.

MANU/WB/0212/1927
Equivalent Citation: AIR1927Cal598, 31CWN814
IN THE HIGH COURT OF CALCUTTA
Appellants: Mawazzam Ali Khan and Ors.
Vs.
Respondent: Shebash Chandra Pakrashi and Anr.
Subject: Election
Catch Words
Mentioned IN
JUDGMENT
Rankin, 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 that
in 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 injunction
on 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.


MANU/AP/0213/2003
Equivalent Citation: 2003(3)ALD83, 2003(5)ALT86, 2003(2)AnWR453
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
LPA No. 94 of 1998
Appellants: Mohd. Sharfuddin (died) by LRs.
Vs.
Respondent: Mohd. Jamal and Ors.
G. Bikshapathy and R. Subhash Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Vedula Venkata Ramana, Adv.
For Respondents/Defendant: Mohd. Azizullah Khan, Adv.
Subject: Civil
Subject: Property
Catch Words
Mentioned IN
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order 39 Rule 2A
Cases 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
Patna 39; 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 59
Disposition:
Appeal allowed
Case Note:

(i) Property - status quo Order - Order 39 Rule 2-A of Code of Civil Procedure, 1908 -
appellant legal representative of original defendant challenged injunction Order restraining
appellant to disposed off suit property - contended fresh Order need to be issued to bind
legal representative - held, status quo Order issued against deceased defendant need to be
respected by legal representative succeeded to property.

(ii) Attaching properties - appellant challenged Courts Order attaching properties subject to
deposit of 20,000 where respondent had right to withdraw amount - impugned Order runs
counter to statutory provision and can be ordered in case of contempt of Court -
held, Order of conditional attachment not maintainable as there was no contempt of Court.

JUDGMENT
G. Bikshapathy, J.
1. An important question that arises for consideration in this appeal is the binding nature of the
temporary injunction Order granted by the lower Court on the LRs. of the party, who suffered
the Order as also the interpretation of Order 39 Rule 2(A) of Code of Civil Procedure.
2. The LPA arises against the Orders passed 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 interlocutory Orders passed 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 granted Orders of status quo and the status quo Orders were made absolute on
15.10.1987. The Appellants filed C.M.P. No. 16874 of 1987 in the appeal against Sharfuddin under
Section 94 and Order 39, Rule 2-A Code 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 quo Orders. 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
an Order finding that there was no violation of the injunction Orders and 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 under Order 39 Rules 1 and 2 of
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 injunction Order and the same was in force.
6. While so, C.C. No. 1412 of 1997 was filed by the Appellants alleging contempt of the Orders dated:
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 quo Orders passed 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 Sections 10 and 12of the Contempt of Courts Act and left it open to the petitioners to convert
the contempt application to that of application under Order 39 Rule 2-A of Code of Civil Procedure.
Thereafter, petition in C.M.P. No. 19697 of 1997 purported to be under Order 39 Rules 1 and 2, Code
of Civil Procedure filed for punishing the respondents for alienating the scheduled properties and to
detain them in civil prison for disobeying theOrders of 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 the Order passed against their father is not binding and that there is no
injunction Orders against them subsequent to their bringing on record as L.Rs. The learned Single
Judge after hearing the parties held that the respondents disobeyed the Orders and 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 said Order, the
present L.P.A. has been filed.
7. While admitting the L.P.A., the Order the 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 said Order passed by the learned Single Judge
dated: 3.4.1998.
8. The issue that arises for consideration is whether the injunction order granted against the late
Sharfuddin survives and makes the L.Rs. binding thereby making the L.Rs. liable for violation of
the orderpassed by the lower Court and whether the compensation awarded under Order 39, Rule 2-
A(2) is in accordance with the provisions contained in Order 39, Rule 2-A ?
9. For proper appreciation of the case, it is necessary to refer to Order 39, Rule 2-A, which reads
thus:
"Consequence of disobedience or breach of injunction :--(1) In the case of disobedience
of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any
of the terms on which the injunction was granted or the ordermade, the Court granting
the injunction or making the order, or any Court to which the suit or proceeding is
transferred, may order the property of the person guilty of such disobedience or breach
to be attached, and may also order such 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 injunction Order would not arise. He relies on the decision of the Gauhati High Court
in Sudhir Namasudra v. Purnendu Kumar Das and others MANU/GH/0001/1980 , wherein it has been
stated that "there cannot be any violation of the order of 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 interim orders of 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 interim Orders were 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 interim Orders committed 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 interim Order. 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 Section 9-A to
witness, where an objection to jurisdiction of a Civil Court is raised to entertain a suit
and to pass any interim Orders therein, 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 interim Orders as 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 interim Order. It can yet, pass
appropriate Orders. At the same time, it should also decide the question of jurisdiction
at the earliest possible time. The interim Order so passed are Orders within
jurisdiction when passed and effective till the Court decides that it has no jurisdiction to
entertain the suit. These interim Orders undoubtedly come to an end with the decision
that this Court had no jurisdiction. It is open to the Court to modify these Orders while
holding that it has no jurisdiction to try the suit. Indeed, in certain situations, it would
be its duty to modify such Orders or 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, these Orders have 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 an order is made by a Court of competent jurisdiction to obey it unless and until
that order is discharged. The uncompromising nature of this obligation is shown by the
fact that it extends even to cases where the person affected by anorder believes it to
be irregular or even void. Lord Cottenham, L.C., said in Chuck v. Cremer 'A party, who
knows of an order, 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 an order was 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 an order, 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 an order of the Court (and I am not
now considering disobedience of orders relating 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 the order. 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 the order.
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:
"Section 146 of 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 Section 146 of the Code must be construed
liberally. One of us had occasion to deal with the scheme of Section 146 of the Code of
Civil Procedure in the Order in C.R.P. 805 of 1995. In the face of Section 146 of 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 principle of public policy embodied in Sections 11 and 146 of the
Code of Civil Procedure on the one hand and Section 52 of the Transfer of Property Act
on the other. The contention on behalf of the legal representatives of the judgment
debtor is that the decree holder is bound to file another suit against them for the
identical relief. In such a suit, can the legal representatives of the judgment debtor put
forward a claim which has already been concluded by the decree against their
predecessors-in-interest? Can they say that the boundary had not been properly fixed
in the earlier litigation and they are entitled to show that the boundary between the
properties lay elsewhere? According to us they cannot. They would be barred by res
judicata from so doing since res judicata bars not only the parties to the suit but also
persons who claim under the parties to the suit and are litigating under the same title.
When we scrutinise the Order in C.R.P. 2543 of 1984 we find that Section 146 of the
Code has not been considered therein and some of the decisions relied on therein were
decisions rendered prior to the introduction of Section 146 into the Code of Civil
Procedure. This aspect has also been dealt with in the Order in C.R.P.805 of 1995
reported as Chothy Theyyathan v. John Thomas (1997) 1 KER. L.T. 464. As observed
by the Supreme Court, there is no justification for whittling down the scope of
Section 146 of the Code and to insist that a fresh suit must be filed every time a
stranger to the decree succeeds to the property of the judgment debtor in the prior
litigation, who has suffered a decree.
It may be true that a decree for injunction compels personal obedience and in
appropriate cases would not be enforced against the legal representatives. But, we
think that the said proposition must have a qualification and that qualification is that
when the injunction relates to doing something or not doing something in a property
that was the subject-matter of the earlier suit and the act complained of was on the
basis of ownership of an adjacent property or a right claimed in the property of the
other side, then such a decree for injunction would be binding not only against the
judgment debtor personally but all those who claim through or under him. This we
understand is the object of Section 146 of the Code of Civil Procedure. Considering the
scope of that section consistent with the principle of public policy as embodied in
Section 11 of the Code of Civil Procedure and Section52 of the Transfer of Property Act,
we are of the view that the executing Court was right in holding that the decree could
be executed against the legal representatives.
Then the only question is whether the judgment debtor need be arrested asordered by
the Courts below. We think that the judgment debtor must be given an opportunity to
avert the Order for their arrest by compensating the Plaintiff in a reasonable manner
for their act of violation. While therefore, we maintain theOrder of the Court below
we Order that the warrant issued by the Court below need not be enforced on condition
that the judgment debtors pay into the executing Court towards compensation to the
decree holder a sum of Rs.5,000/- within a period of one month from this date. If the
said sum of Rs.5,000/- is deposited, the same will be disbursed to the decree holder
and further proceedings in the present Execution Petition will be terminated. In case the
judgment debtors do not deposit the said amount within the time stipulated, the Court
below will enforce its Order and issue the necessary further directions in the present
execution petition itself. It is made clear that the decree holder would be entitled to
move the executing Court in case of any further violation of the decree by the judgment
debtors and if such further violation is made, it will be dealt with by the executing Court
very seriously and on the basis of the ratio of this Order that the decree is enforceable
as against the additional judgment debtors as well. We therefore, confirm the Order of
the executing Court with the modification that the judgment debtors are given an
opportunity to compensate the decree holder for their violation and avert the
enforcement of the presentOrder for their arrest and on their failure to do so directing
the executing Court to proceed further and implement its Order. Under the
circumstances of the case, we make no Order as to costs."
16. Learned Senior Counsel would submit that a Division Bench of this Court in R. Narapa Reddy's case
while referring to the decisions reported in Seaward v. Paterson and others (1897) 1 CH, 545, and
S.N. Bannerjee S. Kichwar Lime and Stone Co. Ltd. MANU/PR/0060/1938 , held that "when a person
is restrained by an injunction from doing a particular act, that person commits a breach of the
injunction and is liable in contempt, if he, in fact, does the act and it is no answer to say that the act
was not contumacious in the sense that in doing it, there was no direct intention to disobey the order.
But equity acts in persona, 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 injunction was granted nor were named in the order cannot be proceeded against in
contempt for disobeying the injunction. But it is well settled that the Court has undoubted 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 a defendant in committing a breach of it"
17. The Supreme Court in The State of Bihar v. Rani Sonabati Kumari and others MANU/SC/0002/1960
, held that "the procedure laid down by Order 39, Rule 2(3) of CPC is remedial and essentially one
for the enforcement or execution of an order of temporary injunction passed under Order 39,
Rule 2(1) and is available against the State although the provision for detention may not apply to it".
The word 'person' used in it, properly construed includes defendants against whom order of injunction
is primarily issued and also the defendants' agents, servants, workmen. Disobedience of die
said order when issued should necessarily attract Order 39, Rule 2(3) of CPC.
18. A Special Bench of Patna High Court in Pratap Udai Nath v. Sara Lal and
others MANU/BH/0211/1948 , 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 are not defendants in the suit in which 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. When there is no principal
offender, the defendant against whom the decree was passed having died, there can be no question of
aiding and abetting the principal."
19. A learned Single Judge of Karnataka High Court in Shankaralingappa v. Nanje Gowda and others,
MANU/KA/0094/1981 : AIR1981Kant78 , held that a judgment in a suit for injunction is not a
judgment in rem and binds only the parties to the suit. Broadly, 'privies' are of three kinds viz., (i)
'privies' in blood; (ii) 'privies' in estate and (iii) 'privies' in law. The plaintiff is not a 'privy' in blood and
a 'privy' in law. But, the question is whether he is a 'privy' in estate. The learned Judge observed at
paras 25 and 26 as follows:
"The suit filed by Kalaiah as also the suit filed by the plaintiff are not for declaration of
title or their ownership. Both the suits are simple suits for permanent injunctions. A
decree for permanent injunction does not prohibit the defendant from instituting a suit
for declaration of his title and for recovery of possession from the very decree holder
that has obtained a decree for permanent injunction. On the very first principle stated
by Sir William de Grey in Duchess of Kingston's case, as also on the legal principles that
distinguish ownership and possession, it is difficult to hold that a transferee is a 'privy'
in estate and the decree made against his transferor operates as res judicata against
him. A decree for permanent injunction obtained by one person against another person,
cannot obviously bind all other persons and ignore the factual changes that take place
with regard to possession. If that is not the position, then it ignores all legal and factual
changes that take place and stamps that decree as if it is a covenant running with that
land. With all the anxiety of law to safeguard possession, acceptance of such a
proposition, would even defeat the very safeguards provided by law and would create
innumerable problems in safeguarding possession. In this view also, the Court should
be loath to accept the extreme proposition that the plaintiff, the transferee is a 'privy' in
estate and the decree obtained by Kalaiah against Lingamma operates as res judicata
against him. From this it follows, that the decree in O.S. No. 597 of 1942-43 (Exhibit D-
12) cannot operate as res judicata against the plaintiff.
An injunction does not run with the land. An injunction only acts in personam or against
a person. Both these principles are firmly established legal principles (vide Somnath
Honnappa Bennalkar v. Bhimrao Subrao Patil ILR(1974) Kant 1506)."
20. In Ganesh v. Narayan and others AIR 1931 Bom. 484, a Division Bench of the Bombay High Court
held that "a decree for permanent injunction obtained against a father in Hindu Joint family can be
executed against the son."
21. The learned Senior Counsel also refers to the passage in Text Book by Sir John George Woodroffe
on law relating to Injunctions in India and extracted para 17.03 which reads thus:
"INJUNCTION IN RESPECT OF ACTS OF AN INDIVIDUAL :-Insofar as an injunction is in its
nature a remedy against an individual, it will be issued only in respect of acts done by him
against whom it is sought to be enforced. Thus, an injunction cannot be obtained against
executors on account of acts done by their testator. They may be sued for an injunction in
respect of a wrong done by themselves, but they cannot be so sued in a representative
character. And for the same reason, namely, that an injunction is an order directed to a
person, it does not run with the land. By reason of this same operation in personam the Court
may exercise jurisdiction quite independently of the act to be done, provided the defendant be
within the reach and amenable to the process of the Court."
22. As can be seen from the aforesaid decisions, injunction is a remedy 'in personam' and not in rem.
But at the same time, it is also cannot be disputed that a person who aids and abets and violates
the order of the Court is also liable for contempt of the Court.
23. The prime question is whether the persons who are not parties to the proceedings when
the Orderwas passed can be made liable for the violation of the Orders of the Court. It is beyond the
pale of controversy that the Order binds the parties till such time they are in subsistence and they are
liable for consequences for violation of the Orders. It is also basic principle that the person who is not
a party to the proceedings cannot be proceeded with against them for the violation of the Order, but
yet the third party cannot be said to absolve himself of this situation in certain circumstances. This
issue came up for consideration in English Court more than a century ago and it was held that the
disobedience of the Orderby a person who is not a party to the proceedings held to amount to
contempt as it interfere with the administration of justice. In Seaward's case (supra), it was held that
the Court has jurisdiction to commit for contempt, a person not a party to the action, who knowing of
an injunction, aids and abets the injunction in breaching it. This principle was again reiterated in Acrow
(Automation) Limited v. Rex Chambelt Inc. (1971)3 All.ER 1175). Yet, in another famous case
'Spycatcher', the principle has been clearly illustrated, which reads thus:
"An interlocutory injunction was granted against newspaper 'A' prohibiting publication of
extracts from the book "Spycatcher" pending the trial of the action. The Attorney General
claimed that the book contained confidential matter. Knowing of the injunction, newspaper 'B'
went ahead and published. The House of Lords, in A.G. v. Times Newspapers Ltd. (1991) 2 All,
E.R.398) held that this was a contempt of Court. Newspaper B was interfering with the
administration of justice, not because it was itself breaching, or assisting in the breach of a
Court Order. The injunction prohibited publication by newspaper A, not by newspaper B.
Newspaper B was in contempt because it had knowingly interfered with the administration of
justice in the confidentiality action brought by the Attorney General against newspaper A.
Newspaper B was knowingly interfere with the administration of justice in that action because,
by granting an interlocutory injunction against newspaper A, the Court had made plain that the
trial of the confidentiality action and the Attorney General's claim to an injunction against
newspaper A should not be nullified in advance by prior publication of extracts from the book.
This principle has been very recently reiterated by the House of Lords (1993 (3) All.E.R. 537).
The House has, however, pointed out an essential distinction in that the third party's liability is
for criminal contempt and arises not because the contemner is himself affected by the
prohibition contained in the Order but because his act constitutes a wilful interference with the
administration of justice by the Court in the proceedings in which the Order was made. A
Division Bench of the Calcutta High Court in Gopal Ch. Biswas v. Pradip Kumar Ghosh 2000 (1)
CHN 396, has held Officer-in-Charge of a Police Station and Block Land and Land Reforms
Officer who were not parties to the original proceedings as guilty of contempt for their acts
which disturbed the status quo directed to be maintained on the basis that such acts amounted
to obstructing the administration of justice."
24. In a recent case in England in Z Limited v. A and others (1982) All.ER 556, an injunction was
issued (commonly known in England as the Mareva Injunction) restraining some of the Defendants
from removing their assets outside the jurisdiction. Lord Denning MR, said:
"Next take a case, a very usual case, where the Mareva injunction is not served on the
Defendant at the outset. He may be out of the jurisdiction or away from home, or
simply not available. So, the Plaintiff simply gives notice to the bank of the injunction.
Sometimes the Plaintiff deliberately delays serving the Defendant: because the
Defendant, on being served himself would whisk the money away before the bank had
notice of it. In such cases the Defendant, not having been served, is not guilty of a
contempt himself. So the bank cannot be guilty of aiding and abetting. What then is the
principle? It seems to me to be this. As soon as the Judge makes his Order for a
Mareva injunction restraining the Defendant from disposing of his assets,
the Order takes effect at the very moment that it is pronounced: see RSC Order 42,
Rule 3 and Holtby v. Hodgson (1889)24 QBD 103). Even though the Order has not then
been drawn up, even though it has not then been served on the Defendant, it has
immediate effect on every asset of the Defendant covered by the injunction. Every
person who has knowledge of it must do what he reasonably can to preserve the
assets. He must not assist in any way in the disposal of it. Otherwise he is guilty of a
contempt of Court(1982) 1 All.E.R. 556)
In the same case Eveleigh, LJ. said:
"....It was argued that the liability of a third party arose because he was treated as
aiding and abetting the Defendant (i.e., he was an accessory) and as the Defendant
could himself not be in breach unless he had notice it followed that there was no
offence to which the third party could be an accessory. In my opinion this argument
misunderstands the true nature of the liability of the third party. He is liable for
contempt of Court committed by himself. It is true that his conduct may very often be
seen as possessing a dual character of contempt of Court by himself and aiding and
abetting the contempt by another, but the conduct will always amount to contempt of
Court by himself. It will be conduct which knowingly interferes with the administration
of justice by causing the Orderof the Court to be thwarted." (1982) 1 All.E.R. 556)
25. A Full Bench of Madras High Court after exhaustive consideration of various cases held thus:
"We can see this clearly that the Courts in India invariably accepted the law applied in England
and found (1) a party to the suit if he had notice or knowledge of theOrder of the Court; (2) a
third party or a stranger, if he had aided or abetted the violation with notice or knowledge of
the Order of injunction guilty of civil contempt and otherwise found a third party guilty of
criminal contempt if he has been found knowingly obstructing implementation of its Order or
direction."
26. The decisions referred to by the learned Senior Counsel in Union of India v. Satish Chandra
Sharma, MANU/SC/0482/1979 : [1980]2SCR298 , and Syed Abdul Razack v. Matadin Agarwal,
MANU/SC/0753/1994 : (1994)4SCC673 , are not relevant in this regard.
27. We have to consider the matter within the framework of Order 39, Rule 2-A and the said provision
did not clearly rule out as to a person against whom the injunction was granted alone can be punished
for violation. On the other hand, it is clearly stated in the provision "a person guilty of disobedience or
breach of injunction Order" is liable for the consequences under Rule 2-A. It cannot be disputed that
an order of the Court has to be respected by the parties who are bound by it. But, it does not mean
that it should be disrespected by the parties who are not bound by it. Therefore, every effort has to be
made to implement the order of the Court and not to disobey the same.
28. The Court has been vested with the power to punish the violators of the Orders passed by it. This
provision is engrafted in Order 39, Rule 2-A Code of Civil Procedure dehors the provisions in
Contempt of Courts Act. The Supreme Court observed in Reliance Petrochemicals Limited v. Proprietors
of Indian Express Newspapers Bombay Limited, MANU/SC/0412/1988 : AIR1989SC190 , thus:
"The question of contempt must be judged in a particular situation. The process of due
course of administration of justice must remain unimpaired. Public interest demands
that there should be no interference with judicial process and the effect of the judicial
decision should not be pre-empted or circumvented by public agitation or publications.
It has to be remembered that even at turbulent times through which the developing
countries are passing, contempt of Court means interference with the due
administration of justice.
The law of contempt secures public respect and confidence in the judicial process and
provides the sanction for any act or conduct which is likely to destroy or impair such
respect and confidence. Sawant J., brought out the significance of the contempt
jurisdiction with passionate overnotes:
"The rule of law is the foundation of a democratic Society. The judiciary is the guardian
of the rule of law. Hence, judiciary is not only the third pillar, but the central pillar of
the democratic State. In a democracy like ours, where there is a written Constitution
which is above all individuals and institutions and where the power of judicial review is
vested in the superior Courts, the judiciary has a special and additional duty to perform,
viz., to oversee that all individuals and institutions including the executive and the
Legislature act within the framework of not only the law but also the fundamental law of
the land. The duty is apart from the function of adjudicating the disputes between the
parties which is essential to peaceful and orderly development of the Society. If the
judiciary is to perform its duties and functions effectively and remain true to the spirit
with which they are sacredly entrusted to it, the dignity and authority of the Courts
have to be respected and protected at all costs. Otherwise, the very cornerstone of our
constitutional scheme will give way and with it will disappear the rule of law and the
civilized life in the Society. It is for this purpose that the Courts are entrusted with the
extraordinary power of punishing those who indulge in acts whether inside or outside
the Courts, which tend to undermine their authority and bring them in disrepute and
disrespect by scandalising them and obstructing them from " discharging their duties
without fear or favour. When the Court exercises this power, it does not do so to
vindicate the dignity and honour of the individual Judge who is personally attacked or
scandalised, but to uphold the majesty of the law and of the administration of justice.
The foundation of judiciary is the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation itself is shaken by acts which
tend to create disaffection and disrespect for the authority of the Court by creating
distrust in its working, the edifice of the judicial system gets eroded."
29. In Kapildeo Prasad v. State of Bihar 1997 (7) SCC 569, the Supreme Court held that disobedience
of the Court's Order strikes at the very root of the rule of law on which the system of Indian
Government is based.
30. Therefore, it is clear that any person, who interferes with the Court of justice or his acts tend to
disturb or detract the administration of justice is liable for consequences. It is not necessary that he
should be a party to the proceedings. Hence, a person having knowledge of the Order cannot be
allowed to violate with impunity and he cannot be allowed feign ignorance.
31. Admittedly, in the instant case, status quo orders were issued against the father and when an
application was filed for punishing the father of the appellants for disobeying the status quo orders,
he had stated that he had already gifted the 'B' schedule property to his sons and all the sons are
making constructions. After the death of Sharfuddin, the appellants were brought on record.
Thereafter application was filed for punishing the appellants for contempt. It was the case of the
appellants in the application filed by the petitioners/plaintiffs that the property in question was gifted
by their father in 1981 and they have every right to proceed against the property. They further stated
that they have also executed certain sale deeds in 1997 much after the status quo order was passed
against their father. They further stated that the status quo order was confined to their father only
and they are not bound by the status quo orders. It is not their case that they were not aware of the
status quo orders passed against their father. At any rate, knowing fully well that there is
specific order against their father, they have executed the sale deeds in respect of 'B' Schedule
property.
32. The learned Senior Counsel would submit that after bringing the legal representatives on record, it
incumbent on the part of the respondents again to obtain a fresh order of status quo against the legal
representatives so as to bind them and till no such order was obtained against the appellants, the
appellants cannot be found fault with. Thus, the learned Single Judge has committed an error of law.
33. But, this contention cannot be accepted for the reason that though status quo order was granted
against the father, yet the sons cannot be allowed to flout the status quo order which was granted
against their father after they were brought on record as legal representatives. It is not the case of the
appellants that they have parted with the property by executing sale deed prior to their bringing on
record as legal representatives, but it is only after they were brought on record, they have parted with
the property. Thus, it is clearly established that the appellants having full knowledge of the status
quo orderwhich was passed against their father, executed the sale deeds on the premise that the
status quoorders would not in any way bind them. But, this contention has no legs to stand inasmuch
as the status-quo order passed against Sharfuddin is required to be respected by the legal
representatives who succeeded to the property in question. It is not a case of third party alleging that
he is not bound by the injunction order passed against the defendants. But the appellants are none
else than the legal representatives and they have the full knowledge of the status quo order passed
against their father. Therefore, a person knowing fully well that an injunction order was passed
against the defendant and still violates the injunction order irrespective of the fact whether he is a
party to the injunction or not and commits violation of the order, is required to face the consequences
under Rule 2-A of Order 39. Thus, we are not in a position to agree with the contention raised by the
learned Counsel for the appellants that the appellants have not committed any contempt of
the orders of the lower Court.
34. Thus we are in agreement with the learned Single Judge that the Appellants have violated
the Ordersof status quo.
35. The learned Counsel alternatively also submits that assuming that a violation has been committed,
but yet the direction to deposit Rs.20,000/- is not sustainable. He submits that under Rule 2-
A of Order 39, if a person violates the injunction order, he is not only liable to be sent to the Civil
Prison but his property will also be attached and the attachment will continue for a period of one year
and if the disobedience still persists, it is open of the Court to put the property for sale and direct a
portion of the amount to be forfeited and paid to the other side. He submits that the direction to
deposit is wholly unsustainable as no such direction could be passed straight away without attaching
the property.
36. It is not in dispute that the learned Single Judge has directed issuance of warrant for attachment
of the properties of the appellants for a period of six months or until such time the appellants deposit
an amount of Rs.20,000/- into the Court. The direction of the learned judge in this regard is not as per
the procedure laid down under Rule 2-A. It is only after lapse of one year, he could order the sale of
the property. But, there is no provision for deposit of the amounts in the Court and to permit the
petitioner to withdraw the same. It cannot be also be disputed that when once the order is violated, it
is open for the Court either to commit the contemnor for Civil Prison or to attach the property or
to order both. But, however, in the case of attachment of property, the same cannot be auctioned for
a period of one year. The learned Counsel would also submit that the amount directed to be remitted
should represent the extent of damages suffered by the other side and in the instant case there is no
such finding. But, However, the learned Judge has directed the appellants to deposit Rs.20,000/-
without there being any proper material. The learned senior Counsel would refer to certain passages
from the book of legal maxims by HERBERT BROOM. He submits that although damnum absque
injuria, is a matter of frequent occurrence, yet injuria absque damno may be said to be unknown to
our law; for a "damage is not merely pecuniary, but an injury imports a damage when a man is
thereby hindered of his right."
37. He, therefore, submits that the injury to right imports damage and in the instant case no injury
was caused and therefore the question of awarding damages would not arise. Learned Counsel would
submit that if the violation is established, the appellants ought to have been subjecting to the
consequences under Clause 2-A, but directing them to deposit the amount is illegal and contrary to
law.
38. He submits that the case reported in Samee Khan v. Hindu Khan, MANU/SC/0564/1998 :
AIR1998SC2765 , fully covers the situation. He refers to the following paragraphs in the said
judgment:
"No doubt the wording as framed in Order 21, Rule 32(1) would indicate that in
enforcement of the decree for injunction a judgment-debtor can either be put in civil
prison or his property can be attached or both the said courses can be resorted to. But
once the decree is enforced, the judgment-debtor is free from the tentacles of Rule 32.
The whole operation is for enforcement of the decree. If the injunction or direction was
subsequently set aside or if it is satisfied, the utility of Rule 22 gets dissolved. But the
position under Rule 2-A of Order 39 is different. Even if the injunction order was
subsequently set aside, the disobedience does not get erased. It may be a different
matter that the rigour of such disobedience may be toned down if the order is
subsequently set aside. Sub-rule (2) of Rule 2-A of Order indicates that attachment will
continue only till the breach continues or the disobedience persists subject to a limit of
a one year period. If the disobedience ceases to continue in the meanwhile, the
attachment also would cease. Thus even under Order 39, Rule 2-A, the attachment is a
mode to compel the opposite party to obey the order of injunction. But detaining the
disobedient party in civil prison is a mode of punishment for his being guilty of such
disobedience.
The words "and may also" in Rule 2-A cannot altogether be detached from the other
worlds in the sub-rule. The principle of noscitur a sociis can profitably be used to
construct the words "and may also" in the sub-rule. The word "also" has different
attributes and its meaning is not to be confined to "furthermore". In legalistic use, the
word "also" can be employed to denote other meanings such as 'as well' or 'likewise'.
The word "and" has generally a cumulative sense, but sometimes it is by force of a
context read as "or". It need not necessarily be understood as denoting a conjunctive
sense.
Hence the words "and may also" in Rule 2-A cannot be interpreted in context as
denoting a step which is permissible only as additional to attachment of property of the
opposite party. If those words are interpreted like that, it may lead to an anomalous
situation. If the person who defies the injunction order has no property at all, the Court
becomes totally powerless to deal with such a disobedient party. He would be immuned
from all consequences even for any open defiance of a Court order. No pragmatic
interpretation therefore, must be this: it is open to the Court to attach the property of
the disobeying party and at the same time the Court can order him to be detained in
civil prison also if the Court deems it necessary. Similarly the Court which orders the
person to be detained in civil prison can also attach the property of that person. Both
steps can be resorted to or one of them alone need be chosen. It is left to the Court to
decide on consideration of the fact situation in each case."
39. In view of the above, the Civil Court is vested with the power to send the contemnor to the Civil
Prison and to attach the property of the contemnor. But, however, we are in agreement with the
learned Senior Counsel for the appellants that the conditional attachment of property and deposit of
Rs. 20,000/- is unwarranted and runs counter to the statutory provisions. This is not a case where a
person is being dealt with under the provisions of the Contempt of the Courts Act. Therefore, the
learned Judge ought to have restricted the condition to the provisions contained in Order 39, Rule 2-
A. Since the power of punishment has to be strictly construed, the learned Judge ought not have
exceeded the powers vested under Order 39, Rule 2-A. Thus, we find that the portion relating to
conditional attachment of property subject to deposit a sum of Rs. 20,000/- and permitting the
respondents to withdraw the same is not sustainable. Accordingly, it is set aside.
40. Having agreed with the finding of the learned Single Judge that the Appellants have violated
theOrders of the Court, we would have normally, ordered the consequences contemplated
under Order 39, Rule 2-A Civil Procedure Code. But, in view of the later developments that the appeal
and LPA filed by the petitioners were dismissed, we are not inclined to exercise the power under
Rule 2-A of Order 39 at this stage.
41. This appeal is accordingly allowed in part to the extent indicated above. No costs.


MANU/AP/0002/2001
Equivalent Citation: 2001(1)ALD5, 2001CriLJ1285
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
CC No. 391 of 1996
Appellants: Sabirabi
Vs.
Respondent: B. Obula Reddy and others
N.Y. Hanumanthappa and A. Gopal Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S.R. Ashok for Mr. C. Vinitha Reddy, Advs.
For Respondents/Defendant: Mr. M.V. Ramana Reddy for Mr. G. Dasaratharama Reddy, Advs.
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution of India - Article 129, Constitution of India - Article 215; Contempt of Courts Act, 1971 -
Section 10, Contempt of Courts Act, 1971 - Section 12, Contempt of Courts Act, 1971 - Section
15, Contempt of Courts Act, 1971 - Section 20, Contempt of Courts Act, 1971 - Section 22; Code of
Civil Procedure, 1908 - Order 39 Rule 2; Contempt of Courts Rules - Rule 24
Cases Referred:
Advocate-General v. Dr. A. Gopal, 1996 (2) ALD 303; Om Prakash Jaiswal, v. D.K. Mittal, AIR 2000 SC
1136; Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 902; S.J.G.M. High School,
Bhimavaram v. Director of School Education, Hyderabad, 1995 (3) ALT 502; T. Deen Dayal v. High
Court of A.P., AIR 1997 SC 3451; The Advocate-General of A.P. v. A.V. Koteswara Rao, 1984 (1) ALT
69; Ushodaya Enterprises Limited v. Commissioner of Commercial Taxes, 1998 (3) ALT 96; Sukhdev
Singh Sodhi v. The Chief Justices of Pepsu High Court, 1954 SCR 454, AIR 1954 SC 186
Case Note:

(i) Contempt of Court - date of reckoning - Sections 10, 12 and 20 of Contempt of Courts
Act, 1971, Article 215 of Constitution of India and Order 39 Rule 2-A of Code of Civil
Procedure, 1908 - respondents directed not to raise any pucca construction during
pendency of suit on schedule land - relatives of respondents started construction ignoring
of Order of Court - complainant filed contempt case - violation of Courts Order - contempt
proceedings may be started - High Court under Article 215 has power to take actions
against contemnor - time stipulated in Section 20 not creating any bar on Court - day of
reckoning of time started from date of issuance of show cause notice to contemnor.

(ii) Illegal action - any illegal action amounting to contempt of Court be tried under
contempt proceedings - other provisions not to be attracted to initiate proceedings against
said action.

ORDER
N.Y. Hanumanthappa, J.
1. Heard both sides on maintainability of the contempt application. A few facts which are necessary to
answer the conditions raised are as follows:
Aggrieved by the common order passed in IA Nos.158 of 1991 and 78 of 1994 in OS No.44 of 1991 by
learned Subordinate Judge, Penukonda, the complainant herein filed CMA No.1053 of 1994 and this
Court passed the order against respondents 1 and 2 on 29-9-1994 setting aside the
impugned order subject to the condition that no pucca construction shall be raised on the suit
schedule land till the disposal of the applications by the lower Court. On 1-3-1996, other respondents
namely respondents 3 to 6, who are relatives of respondents 1 and 2, unmindful of the presence of
the orderof this Court, started construction of the building. When the complainant lodged before the
concerned police, no action was taken. Hence, the complainant filed this contempt case before this
Court on 21-3-1996 under Sections 10 and 12 of Contempt of Courts Act. The respondents 1 and 2
appeared before this Court through their Advocate and filed counter-affidavit in which they denied the
act of contempt and also proceeding with the construction. However, respondents 3 to 6 proceeded
with the construction. Hence, the complainant was compelled to bring them on record in CA No.852 of
1996 on which notice was ordered and also directed the parties to maintain status quo on 1 8-9-
1996. Though notice was ordered, the same could not be served on respondents 3 to 6. The
allegation is that the impleading respondents were fully aware of the said notice and also the status
quo order passed by this Court especially when they are living together with respondents 1 and 2.
Ultimately, notices were served on 19-9-1997. R4 filed counter on 9-3-1998 and R3 and R5 filed
counter on 16-3-1998. The stand taken by them is one of total denial of the act of contempt. The
implead petition is ordered.
2. To support the contention that contempt case has to be initiated within one year from the date of
the order, mere ordering of notice does not amount to initiation of contempt proceedings, Mr. M.V.
Ramana Reddy, learned senior Counsel appearing for respondents-contemnors, placed reliance on the
following decisions. The Advocate-General of A.P. v. A. V. Koteswara RaoMANU/AP/0004/1983 :
1984 (1) ALT 69; S.J.G.M. High School Bhimavaram v. Director of School Education, Hyderabad,
MANU/AP/0158/1995 : 1995(3)ALT502 ; Advocate-General v. Dr. A. Copal1996 (2) ALD 303 and
Om Prakash Jaiswal, v. D.K. Mittal, MANU/SC/0118/2000 : 2000CriLJ1700 . According to him, the
contempt application filed by the complainant is barred by time as the orderwas made on 29-9-1994
whereas the contempt petition was filed on 29-9-1996. The second contention is that the act of
contempt complained of is the order of injunction granted by this Court, and if there is any
disobedience to the said order, the proper remedy is under Order 39 , Rule 2-A of Civil Procedure
Code. He submitted that the inherent powers of this Court under Article 215 of Constitution of India
cannot be invoked. On the other hand, whether there is contempt or not, has to be decided only after
leading evidence in the proper Forum under Order 39, Rule 2-A of Civil Procedure Code. To support
this contention. Sri M.V. Ramana Reddy placed reliance on Rule 24 of the Contempt of Courts Rules.
Apart from the stand of denial, Mr. M. V. Ramana Reddy- learned senior Counsel appearing for the
respondents-contemnors, took a plea that the contempt petition is not maintainable for the reason
that the same is barred by limitation. Further, even if it is assumed that contempt petition is
maintainable, still this Court cannot entertain the same as the complainant has got an alternative
remedy under Order 39, Rule 2-A of Civil Procedure Code. Thus contending, he sought the contempt
petition be dismissed.
3. Mr. S.R. Ashok, learned senior Counsel appearing for the complainant contended that all the
contentions raised by M. V. Ramana Reddy on facts have no application. According to him, the act
complained of starts from 1-3-1996 and the contempt petition was filed on 21-3-1996. Thus, the
contempt case filed by his clients is well within time if the Courts take the date of alleged contempt.
Further, the impleading respondents have deliberately avoided receiving the notices. Hence, they
cannot be permitted to raise the plea of limitation. In support of this contention, he relied on the
decision in T. Deen Dayal v. High Court of A.P., MANU/SC/0851/1997 : 1997CriLJ4080 . Regarding
the point that the contempt proceedings can be initiated against the third parties, he submitted that
when the contempt act complained of is non-compliance of the order of this Court, it is only this Court
and not the Subordinate Courts, which has got the power to punish such contemnors irrespective of
the fact whether or not they are parties to the proceedings. He also contended that initiation of the
contempt proceedings starts from the date of issuing of notice even in the absence of admitting such
contempt case. According to the learned senior Counsel for the complainant, the act complained of is
in respect of this Court's order and as such, there is no need to approach the subordinate Court
under Order 39, Rule 2-A of CPC. This Court being a Court of record under Article 215 of the
Constitution of India and the act complained of relates to this Court'sorder, contempt case initiated
under Sections 10 and 12 of Contempt of Courts Act is maintainable. For this proposition and the
scope of Article 215, he relied on the decision in Pritam Pal v. High Court of Madhya Pradesh,
Jabalpur AIR 1992 SC 902. Lastly, he contended that though the complainant could have invoked the
power under Order 39, Rule 2-A of Civil Procedure Code. But not invoking the same will not vitiate the
proceedings under Sections 10 and 12 of Contempt of Courts Act. Thus contending, he sought the
contempt petition be admitted.
4. Reliance placed by both sides in support of their contentions, much stress need not be placed, since
the following decisions namely decision in Pritam Pal's case (supra), and the Full Bench decision of this
Court decision in Ushodaya Enterprises Limited v. Commissioner of Commercial Taxes,
MANU/AP/0414/1998 : 1998(3)ALD478 , are sufficient to answer the contentions raised in the case.
5. In Pritam Pal v. High Court of Madhya Pradesh (supra), the Supreme Court held as follows:
"Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent
power to deal with a contempt of itself summarily and to adopt its own procedure,
provided that it gives a fair and reasonable opportunity to the contemnor to defend
himself. But the procedure has now been prescribed by Section 15 of the Act in exercise
of the powers conferred by Entry 14, List HI of the Seventh Schedule of the
Constitution. Though the contempt jurisdiction of the Supreme Court and the High
Court can be regulated by Legislation by appropriate Legislature under Entry 77 of List I
and Entry 14 of List III in exercise of which the Parliament has enacted the Act, 1971
the contempt jurisdiction of the Supreme Court and the High Court is given a
constitutional foundation by declaring to be 'Court of Record' under
Articles 129 and 215 of the Constitution and, therefore, the inherent power of the
Supreme Court and the High Court cannot be taken away by any Legislation short of
Constitutional amendment. In fact, Section 22 of the Act lays down that the provisions
of this Act shall be in addition to and not in derogation of the provisions of any other
law relating to Contempt of Courts. It necessarily follows that the constitutional
jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot
be curtailed by anything in the Act of 1971. The above position of law has been well
settled by this Court in Sukhdev Singh Sodhi v. The Chief Justices of Pepsu High
Court MANU/SC/0022/1953 , holding thus:
"In any case, so far as contempt of a High Court itself is concerned, as distinct from one
of a subordinate Court, the Constitution vests these rights in every High Court, so no
Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its
own authority".
"From the above judicial pronouncements of this Court, it is manifestly clear 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 trammeled
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."
6. The Full Bench decision of this Court in Ushodaya Enterprises Limited v. Commissioner of
Commercial Taxes (supra) held as follows:
"In a case of conflict arising from the decisions of co-equal Benches of the Supreme Court, the
High Court is free to disregard the decision which is based on an obvious mistake of fact or the
one which purports to follow the ratio of an earlier decision though such ratio is found to be
non-existent. The High Court can legitimately decline to follow such decision and follow the
earlier decision which is backed by reasoning - whether it is acceptable to the High Court or
not, and which is free from any such apparent flaw. Court is unable to persuade itself subscribe
to the view that the later decision should be automatically followed despite the fact that it rests
on a conclusion based on an erroneous impression that an earlier decision took a particular
view which in fact it has not taken. By doing so, Court is neither questioning the hierarchical
superiority of the Supreme Court nor the higher wisdom of the Hon'ble Judges of the Supreme
Court. Court is preferring one decision to the other both rendered by Division Benches, for
obvious reasons so as to avoid an incongruity leading to travesty of justice".
7. The Supreme Court in Om Prakash Jaiswal v. D.K. Mittal (supra) held that contempt proceedings
can be said to be initialed not merely on receipt of the petition for taking contempt action and not on
issuing of notice to show-cause why action should not be taken, but when notice is issued to show-
cause why contemnor should not be punished.
8. After hearing both sides, we gave our careful thought to the various decisions relied on by both the
Counsel. We are of the view that the limitation for initiation of contempt case starts from the date of
knowledge of alleged violation of the order of the competent Court. The initiation of contempt
proceedings includes issuing of notice by this Court calling upon the contemnors to show-cause why
the contemnor shall not be punished. From this, it has to be presumed that the Court has taken
cognizance of the contempt though it might not have admitted the contempt case.
9. The question of Subordinate Court recording the evidence of the parties arises when it is alleged
that the order of the Subordinate Court is disobeyed and not otherwise. In the case on hand, the
alleged violation is in respect of this Court's order, as such only this Court is competent to take
cognizance and punish the contemnors by exercising its powers under Sections 10 and 12 of the
Contempt of Courts. Such an act is valid. Apart from that, this Court being a Court of Record, in view
of Article 215 of Constitution of India, the technicalities which Mr. M.V. Ramana Reddy, learned senior
Counsel for respondent-contemnors, pointed out deserve to be ignored. In order to see that
substantial justice is done and dignity of the Court is protected, this Court either on complaint or suo
motu, can take cognizance of the contempt and punish the contemnors. This view is supported by the
observations made by the Supreme Court in Pritam Pal's case (supra), which are extracted herein.
10. In none of the decisions cited at the Bar there was occasion to consider the decision in Pritam Pal's
case (supra), as that decision was not cited before their Lordships. Even when considering the facts
involved in Om Prakash Jaiswal v. D.K. Mittal (supra), the decision in Pritam Pal's case was not
brought to the notice of the Hon'ble Court.
11. Where the order of this Court has been disobeyed and the contempt proceedings initiated, which
requires evidence for adjudication, in such a case this Court can proceed to record evidence on its own
or direct the Court below to record the evidence and send its report and thereafter to take action in
the matter. Merely because the contempt proceedings are not initiated under Order 39, Rule 2-A of
Civil Procedure Code, it does not bar initiation of the contempt proceedings under
Sections 10 and 12 of the Contempt of Courts Act.
12. If a third party has committed the act of contempt in a proceeding pending before this Court,
proceedings can be initiated against such a party and deal him in accordance with law, by bringing him
on record by way of impleading.
13. For all the above reasons, neither the contempt case is time barred nor is it not maintainable.
Hence, the objections taken by Mr. M.V. Ramana Reddy, learned senior Counsel appearing for
respondents- contemnors, as to the maintainability of the contempt petition are overruled.
14. All the four points raised for consideration are answered in favour of complainant.
15. Post this contempt petition for further orders during last week of August, 2000.


MANU/TN/0059/1991
Equivalent Citation: AIR1991Mad323, 1991CriLJ2722, 1991-2-LW295
IN THE HIGH COURT OF MADRAS
L.P.A. No. 123 of 1990
Appellants: Vidya Charan Shukla
Vs.
Respondent: Tamil Nadu Olympic Association and another
Mishra, Govindaswamy and Kanakaraj, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kapil Sibal, Sr. Counsel, for M/s. P.S. Raman, P.R. Raman and K.S.
Viswanathan, Advs.
For Respondents/Defendant: K.K. Venugopal, Sr. Counsel for N.P.K. Menon and K.C. Cooper, Sr.
Counsel for P.G. Krishna Rao, Advs.
Subject: Civil
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution of India - Articles 129, 215, 223 and 225; Contempt of Courts Act, 1971 - Sections 2 and
17; Code of Civil Procedure, 1908 (CPC) - Sections 4, 39, 94 and 151 - Order 14, Rule 8 - Order 39,
Rules 1 and 2A, Order 21, Rule 35; Societies Registration Act, 1860; Indian Penal Code 1860, (IPC) -
Rule 3; Code of Criminal Procedure, 1973 (CrPC) - Sections 5 and 482; Contempt of Courts Act, 1952
- Section 1(2); High Courts Act, 1861 - Sections 9 and 11; Government of India Act, 1915 - Section
106; Chapter Act, 1861 - Section 9; Representation of People Act - Section 97, 98 and 99; Code of
Criminal Procedure, 1908 (CrPC) - Sections 20 and 125
Cases Referred:
Govindarajulu v. Imperial Bank of India, AIR 1932 Mad 180; Varadacharyulu v. Narasimhacharyulu
AIR 1926 Madras 258, 92 Ind Cas 615; Ayyaperumal Nadar v. Muthuswami Pillai, AIR 1927 Madras
687, (102 Ind Cas 700); Ellerman Lines Ltd. v. Read (1928) 2 KD 144; Ganga Singh v. Pirthichand
Lal, AIR 1922 Patna 34; Pariakaruppan Chettiar v. Ramaswami Chettiar AIR 1928 Madras 497; Rash
Behary Day v. Bhowani Churn Bhose (1907) ILR 34 Cal 94); Mungle Chand v. Gopal Ram (1907) ILR
34 Cal 101; Singnaravelu Mudali v. Balasubramania Mudali AIR 1926 Madras 1126; Periakaruppan
Chettiar v. Ramaswami Chettiar AIR 1228 Madras 491; Sukhdev Singh v. Teja Singh, AIR 1954 SC
186, (1954 Cri LJ 460); Surendranath v. Chief Justice and Judges of the High Court of Bengal, (1982-
83) 10 Ind App 171 at p. 179 (PC); Emperor v. Murali Manohar Prasad AIR 1929 Patna 72, (1929-30
Cri LJ 741); Parashram Detaram v. Emperor AIR 1945 PC 134; Manohar Lal v. Seth Hiralal AIR 1962
SC 527; Seaward v. Paterson (1897-1 Ch 545); Thorne RDC v. Bunting (No. 2) (1972) 3 All ER
1084; Phonographic Performance Ltd. v. Amusement Caterers (Peckam) Ltd. (1963-3 All ER
493); Filiot v. Kinger (1967) 3 All ER 141; Northern Counties Securities v. Jackson & Steeple (1974) 2
All ER 625; Lord Haldane in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (1914-15) All ER
Rep 280; Z Ltd. v. A (1982) 1 All ER 556 Attorney General v. Newspaper Publishing PLC, (1987) 3
WLR 942; Smith-Barry v. Dawason, (1891) 27 LR Ir 558; Lord Wellesley v. Earl of Mornington (1848)
11 Beav. 180; Lord Wellesaley v. Earl of Mornington (No. 2) (1848) 11 Beav. 181; Galaxia Maritime
S.A. v. Mineral import - export (1982) 1 W.L.R. 539; Attorney-General v. Butterworth, (1963) 1 QB
696); Ivason v. Harris, (1802) 7 Vas. Jum 251 256; Z Ltd. v. A-Z and AA-LL, (1982) QB 558; Lord
Eldon L.C. said in Iveson v. Harris, (1802) 7 Ves. Jun, 251, 256; Brydges v. Brydges and Wood
(1909) P 187, 191; Farewell L.J. In Brydges v. Brydges and Wood (1909) P. 187, 191; Ranson v.
Platt, (1911) 2 KB 291; Marango v. Daily Sketch and Sunday Graphic Ltd., (1948) 1 All ER
406; Viscout Haldane L.C. in SCOTT v. SCOTT, (1913) AC 417, 437; S.N. Bannerjee v. Kuchwas Lime
and Stone Company Ltd., AIR 1938 PC 295, 68 Cal LJ 488; Pratap Udal Nath v. Sara Lal, AIR 1949
Patna 39; Avery v. Andrews, (1882) 51 LJ Ch 414, 46 LT 279; Sfaward v. Paterson, (1897) 1 Ch 545,
6 LJ Ch 267; S.N. Banerji v. Kuchwar Lime & Stone Co. Ltd., ILR 17 Pat 770, AIR 1938 PC 295; P.K.
Kripalani v. Mahabir Ram Saha, AIR 1952 Cal 452, ILR (1953) 1 Cal 261; Iberian Trust Ltd. v.
Founders Trust & Investment Co. Ltd. (1932) LR 2 KB 87, 95; S.N. Bannerjee v. Kuchwar Lime &
Stone Co. Ltd., (1939) 43 Cal WN 197, (AIR 1938 PC 295); Yusuf v. Jyotish Chandra Banerji, (1932)
ILR 59 Cal 739, (AIR 1932 Cal 241); Cooper. v. Asprey, (1864) 3 B & S 932; Higg's Mortigage,
Goddard v. Higg, 1894 WN 73; Lacon v. De Grost, 1893 10 TLR 24; Santosh v. Birachandra, AIR
1965 Orissa 222, (1965 (2) Cri LJ 796); Kailas Chandra v. Sadar Munsif, Silchar, AIR 1925 Cal
817;Narain Singh v. Hardayal Singh, AIR 1958 Punjab 180; N. Senapathi v. Sri Ambal Mills, AIR 1966
Madras 53; Manchar Lal v. Seth Hiralal, AIR 1962 SC 527; Hari Nandan v. S.N. Pandita, AIR 1975 All
48; Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220; Century Flour Mills v. S. Subbiah, AIR 1975
Madras 270; M.S. Gill v. C.E.C., AIR 1978 SC 851, (1978) 2 SCR 272; Matajog Dobey v. H.C. Bhari
(1955) 2 SCR 925, (1956 Cri LJ 140); Commissioner of Commercial Taxes v. R.S. Jhaver, (1968) 1
SCR 148 at 154, 155, (AIR 1968 SC 59); Savitri v. Govind Singh Rawat, (1985) 4 SCC 337, (1986 Cri
LJ 41); Nemai Chand Jain v. Lila Jain, AIR 1968 Cal 405; D. Udayar v. Raja Rani ammal, AIR 1973
Madras 369; R.P. Ltd. v. Proprietor, Indian Express Newspapers, Bombay Pvt. Ltd., AIR 1989 SC
190;Charlotte Anita Whitney v. People of the State of California, (1926) 71 Law ED 1095; Bhagat
Singh v. Dewan Jagbir Sawhney, (AIR 1941 Cal 670); State of Bihar v. Rani Sonabati Kumari, AIR
1961 SC 221; Manga v. Rustam, AIR 1963 Raj 3
Authorities Referred:
Kerr on Injunctions, 6th Edition, Page 41; Belchamber's Practice of the Civil Courts, 1884 edition;
Oswald on Contempt 1910 Edition 106; 7 Halsbury's Laws of England (Hailsham edition) page 2
Citing Reference:

Discussed

54

Mentioned

13

Case Note:

Civil - execution of Order - Articles 129, 215, 223 and 225 of Constitution of India, Sections
2 and 17 of Contempt of Courts Act, 1971 and Sections 4, 39, 94 and 151 of Code of Civil
Procedure, 1908 - to effect enforcement of Order or to execute Order which is found not to
be implemented irrespective of whether action for contempt is taken or not Court can
Order for status quo ante by issuing mandatory injunction - ancillary to Court's power to
grant finally on conclusion of contempt proceedings that Court will also have power to
grant finally on conclusion of contempt that Court would also have power to make interim
mandatory injunction.

ORDER
Mishra, J.
1. The respondent in Contempt Application No. 157 of 1990 has preferred this appeal against an
order passed in Sub Application No. 230 of 1990 in which learned trial Judge has directed that the
first defendant in C.S. No. 481 of 1990 continues to be the President of the Indian Olympic
Association and the resolutions, if any, purported to have been passed appointing the appellant as
President of the Indian Olympic Association would be of no legal consequence and would have no
legal effect and the office premises of the Indian Olympic Association be restored by him to the first
defendant in the suit.
2. The Tamil Nadu Olympic Association represented by its General Secretary, the second plaintiff, who
has also been the Joint Secretary of the Indian Olympic Association, has filed the suit impleading the
first defendant described as the President of the Indian Olympic Association and the second defendant
described as the Secretary General of the Indian Olympic Association and alleging that the
Association is a Society registered under the Societies Registration Act having its office at New Delhi.
The members of the Association consist of National Sports Federations/Associations whose sport is
included in the Olympic/Asian or Commonwealth Games, National Sports Federations/Associations
which represent widely played Indian sports recognised by the Association, Olympic Associations of
States as well as centrally administered Union Territories, service Sports Central Boards and Indian
citizens who are member of the Olympic Committee. The Association has its own constitution
containing the Memorandum of Association and Rules and Regulations which is the binding contract
between the members of the Association. The management of the Association is entrusted to the
Executive Council constituted under the Rules. Article VII of the Constitution provides that election
would be held once in four years at the Annual General Meeting to elect the Executive Council
Members from amongst the representatives of the members present and that an office bearer of the
Association would hold office as such for one term of four years on obtaining simple majority votes in
the election. In the election held on 27-11-1988 at Park Sheraton Hotel, Madras, the first defendant
was elected as the President and the second defendant was elected as the Secretary General and in
addition as provided under Article VII above, Executive Council Members were also selected and,
"including the two I.O.C. representatives, there are now 39 members of the Executive council with
whom the administration of I.O.A. is entrusted under the provisions of the I.O.A. Constitution."
3. On 16-5-1990 however a notice was served in the office of the President of the Association stating,
"Notice is hereby given that a Requisitioned Special General Assembly Meeting of the
Indian Olympic Association under Article VI of the constitution of the I.O.A. be
convened at New Delhi, the head quarters of the I.O.A. within one month from the
date of receipt of this letter.
2. As required under Article VI of the Constitution the requisition has been signed both
by the President and Secretary General of 17 affiliated units of the I.O.A. Their list is at
Annexure I which is accompanied by the letters signed by them giving notice for the
requisitioned meeting. In addition 7 Presidents/Secretary Generals of the affiliated
units have also signed the letter requisitioning the meeting. Their list is at Annexure 11
accompanied by the letters signed.
3. The Agenda for the aforesaid requisitioned meeting will be to consider and pass the
following resolution and to take consequential action thereof:
"Resolved that this house has lost confidence in the present Executive Council of the
Indian Olympic Association and to Elect no Executive Council."
4. In case you fail to convene the said requisitioned meeting at New Delhi within the
specified period, the requisitionists shall hold the said meeting on 16th June 1990 or
on any day thereafter at National Stadium, New Delhi to consider the above noted
item of the Agenda."
4. The Executive Council according to the plaint, at a meeting held on 28-5-1990 decided that in view
of certain facts (alleged in the plaint) the Special General Meeting could not be convened. Yet, by a
notice issued on 28-5-1990, the first defendant convened a Special General Meeting of the
Association on 15-6-1990 at Park Sheration Hotel at Madras to consider and pass the following
resolution as required by the requisitionists.
"Resolved that this House has lost confidence in the present Executive Council of the
Indian Olympic Association and to elect New Executive Council leaving the legality of
the requisition to be decided by the General Assembly. The plaintiffs have not only
sought a declaration that the notice dated 28-5-1990 issued by the first and second
defendants on the basis of the requisition notices convening the Special General
Meeting of the Indian Olympic Association on 15-6-1990 is illegal, null and void, but
also a consequential injunction restraining the defendants from convening and
conducting the Special General Meeting on the said date or on any other day at any
other place and from considering and taking decision on the resolution mentioned in
the notice. The plaintiffs have also filed an affidavit and application in the said suit
seeking an order of injunction restraining the defendants from convening and holding a
Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel,
Madras or on any day at any place and from considering and taking any decision on
the resolution mentioned in the notice dated 28-5-1990. In this affidavit, the second
plaintiff K. Murugan stated,
"I understand from the report published in Newspapers that the I.O.A. represented by
the Secretary General filed a suit in the Delhi High Court for restraining the rival
meeting convened by the requisitionists on 15-6-1990 at Delhi for considering the
same resolution and the said High Court has granted an injunction and also appointed
an observer for the Madras Meeting. The validity and legality of the Madras Meeting is
not the subject matter in that suit. Further we are not parties to that suit. Hence I
submit that the said order which has not considered the validity of the Madras Meeting
is not binding on any of us. In addition the said suit has been filed without any
authority of the General Assembly,"
and
"I submit that the object granting the injunction would be defeated by the delay if
notice is to be ordered, since the defendants would try to evade notice, we undertake
to coming with the provision of 0.39, R. 3, I.P.C. immediately,"
5. The suit and the application for interim injunction were filed on 11-6-1990 and the Judge's
Summons under Order 14 Rule 8 of the O.S. Rules read with Order 39 Rules 1 and 2 and S. 151 of
the Code of Civil Procedure were handed over to the learned Counsel for the plaintiffs on the same
day.
6. A further affidavit was filed by Thiru Murugan on behalf of the plaintiffs on 14-6-1990 in which it
was stated that they had filed the suit for a declaration that the meeting notice issued by the first
defendant in pursuance of the requisition letters given by some member units of the Association was
null and void and illegal and for a permanent injunction restraining the defendants from convening
and conducting a Special General Meeting of the Association on 15-6-1990 at Park Sheraton Hotel,
Madras on or any day or place and that they had filed an application seeking for interim injunction
restraining the defendants from convening and conducting the said meeting on 15th June.
"Since the Hon'ble Court was re-opened after summer holidays on 11 th only we could
not file the suit and the application earlier and seek for interim orders,"
and that
"I submit that if this Hon'ble Court is not inclined to grant the interim order of
injunction restraining the holding of the Special General Meeting for any reason, I pray
that this Hon'ble Court may be pleased to order that the resolution viz.,
"Resolved that this House has lost confidence in the present Executive Council of the
Indian Olympic Association and to elect new Executive Council."
shall be passed in the Special General meeting of the IOA to be held on 15th June
1990 at 12.15 p.m. at Park Sheraton Hotel, Madras by secret ballot only and that the
IOA President shall preside over the said meeting."
On that very day Learned Trial Judge ordered for Judge's summons under Order 14
Rule 8 of the O. S. Rules read with S. 151 of the Code of Civil Procedure and handed
over the same to the learned counsel for the plaintiffs. This time it said, why the Court
be not pleased to order that the resolution mentioned in the meeting notice dated 28-
5-1990 issued by the defendants be passed in the Special General Meeting of the
Association to be held on 15-6-1990 by secret ballot only and that the first defendant
would preside over in the said meeting and it seems, the defendants entered
appearance and the Court ordered,
"Both applications were heard. It was admitted by the learned Senior Counsel Mr. R.
Krishnamurthy, appearing for R1/D1 that the meeting has been convened to be held
on 15-6-90 and almost all the persons had come to Madras and in as much as it has
been submitted in Appln. No. 2593/90 that in the event of the meeting being held and
this Court not granting stay of the Special General Meeting to be held on 15-6-1990 at
Madras, proper direction may be issued for voting by secret ballot with regard to the
resolution. It is to be seen in a suit filed in the Delhi High Court, it appears the learned
Judge of the Delhi High Court held that the meeting convened OP the basis of the
requisition was not valid but an order had been passed appointing an observer for the
meeting to be held on 15-6-1990 herein. As submitted by the Learned Senior Counsel
for R1, quite likely all the persons, concerned could have come here and inasmuch as
this applicant/plaintiff has filed Application No. 2593/90 seeking for voting by secret
ballot, I feel that there need not be any order of stay or injunction restraining the
respondent from convening or holding the Special General Meeting, but there could be
an order directing resolution mentioned in the Meeting Notice to be put to vote by
secret ballot, and inasmuch as the observer is also appointed by the learned Judge of
the Delhi High Court, I feel that the ballot papers or voting papers that are being
issued to the voting persons could be signed before issue by the R1 who is the
Secretary of the Association as well as the observer appointed by the Delhi High Court
and only such ballot papers or voting papers signed by the Secretary of the Association
and the observer are held to be valid. The meeting convened as scheduled on 15-6-
1990 is to be presided over by R1 who is the President. Ordered accordingly.
6A. In the contempt application, on affidavit Thiru Murugan has alleged that on 15-6-1990 all the
member representatives numbering 124 assembled at the meeting hall at 12-15 p.m. and the
meeting commenced as scheduled and the respondent/ appellant herein however barged into the
meeting hall with about 100 outsiders shouting that Sri B. S. Adityan, the President should not
preside over the meeting and,
"The President informed the members about the orders issued by this Hon'ble Court
and the Delhi High Court. The observer also read out order of this Hon'ble High Court
and said that the members must abide by the order.
The respondent and his men shouted that there will be voting only by show of hands
and they rushed towards the chairs occupied by the President, Secretary General and
the Observer. The said persons placed two chairs near the President and the
respondent occupied the same and declared that the resolution of No Confidence has
been passed and he has been elected as the President of I.O.A. When Sri B. S, Adityan
instructed the officials of I.O.A. to issue the ballot papers the respondent instigated his
supporters to go and seize the papers.
Apprehending violence the President Sri. B. S. Adityan gave a request to the
Commissioner of Police for a bandobust for peaceful voting. The President, Secretary
General, the observer and the members including the respondent and they were sitting
in the Meeting Hall till 4-30 p.m. In response to the request of the President, the Police
Officers came to the Meeting Hall and stood guard for the ballot papers and the ballot
box. Thereafter the officials started issuing the ballot papers signed by the Secretary
General and the observer. As soon as a few votes were polled at the instigation of the
respondent his supporters rushed towards the Observer and the President and the
ballot box and tried to assault the President and the Observer and snatched away the
ballot box and the ballot paper box. The Police Officers pushed away the miscreants.
One of the respondent's men assaulted an Assistant Commissioner of Police who was
standing as guard to the observer.
Fearing further violence the Police Officer requested the Observer to go to a safer
place outside the hall. Pandemonium prevailed and in order to avert unpleasant
occurrences the President adjourned the meeting slating that further date will be
announced after obtaining orders from Court since the convenience of the observer
has to be ascertained.
The news reporters who were present from the morning and who were witnessing the
unruly behaviour of the respondent and his group have reported about all these facts
in the newspapers.
The respondent has now given a statement to the Press that the resolution of No
Confidence motion has been passed by majority of votes by show of hands and that he
has been elected as President."
7. In the sub-applications filed in the contempt application, it is stated that the order of this Court
would stand violated and any such person who is guilty of violating an order or abetting the violation
of such order would also be guilty of contempt of this Court if.
"(1) The Special General Meeting were to be held other than under the Chairmanship
of the President of the Indian Olympic Association Thiru B. S. Adityam,
(2) The voting were to take place at such Special General Meeting other than by secret
ballot; or
(3) If the ballot papers, in case a ballot were to be taken, were not signed both by
Thiru Radhir Singh, Secretary General, Indian Olympic Association as well as Thiru
Avadh Behari Rohatgi, former Judge of the Delhi High Court and observer appointed by
the Delhi High Court in the Special General Meeting to be held on 15-6-1990 at
Madras."
It is submitted,
(i) That outsiders other than members of the Indian Olympic Association were present
inside the meeting hall where the requisitioned meeting was taking place;
(ii) That entry to these outsiders was denied by the members of the Indian Olympic
Association posted at the entrance door of the hall but by reason of Thiru V. C. Shukla
shouting to these members and asserting himself under cloak of his status as a
Member of Parliament and a former President of the Indian Olympic Association the
outsiders brought by him gained entry into the meeting hall.
(iii) That Shri Avadh Behari Rohtagi, former Judge of this Hon'ble Court and Observer
read out the order of this Hon'ble Court in CMP No. 6953 of 1990 to the entire
assembly before commencing voting by secret ballot.
(iv) That this Hon'ble Court's order required the poll to be conducted through secret
ballot but Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh and
persons who are outsiders pounced on Thiru Avadh Behari Rohtagi, former judge of
the Delhi High Court and assaulted him, tore off the ballot papers, took away the ballot
boxes and prevented this Hon'ble Court's order from being implemented.
(v) That thereafter the meeting was adjourned by (he President of the Indian Olympic
Association who had been directed to Chair the meeting by this Hon'ble Court and
whose adjournment therefore would bind the members present at the Special General
Meeting, but however Thiru V. C. Shukla today claims that he had held a meeting at
which he had been elected President of the Indian Olympic Association. 1( would follow
that any such meeting held by him without its being chaired by Thiru B. S. Adityan,
the President of the I.O.A. and after Thiru B. S. Adityan, President I.O.A. had
adjourned the meeting would be in total violation of the order of this Hon'ble Court.
(vi) To the extent that the so called meeting was not even purported to have been
held by the procedure of secret ballot, the express direction issued by this Hon'ble
Court has been flouted.
(vii) It would automatically follow that in view of the fact that the so called election
held by Thiru V. C. Shukla was not by secret ballot the question of the ballot papers
being signed both by Thiru Randhir Singh, General Secretary of Indian Olympic
Association as well as by Thiru Avadh Behari Rohtagi would not arise and this direction
automatically stands violated."
and it is said,
"What follows out of the narration of the facts mentioned above is that Thiru V. C.
Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh have not only flouted and
violated the orders of this Hon'ble Court but have shown their total contempt for the
institution of the Judiciary thus seriously exposing the Judicial organ of the State of
Public ridicule. I seek the leave of this Hon'ble Court to implead Thiru Mishra in this
petition for contempt."
Stating that the Asian Games were to be held in Beijing, China on and from 22-9-1990
and all the arrangements for the Asiad including the selection of players, managers
had been made, the teams in each discipline selected by the respective Federation and
already forwarded by the present committee headed by Thiru B. S. Adityan to the
Asian Games Organisation Committee, were in the coaching camp and the President
and the Secretary General had to countersign the identification cards and alleging that
the only motive behind the blatant and open violation by the respondent/appellant, a
Member of parliament, former Cabinet Minister and a former Chief Minister, of the
orders of this court, which had been read out by Thiru Avadh Behari Rohatgi at the
commencement of the meeting with so many witnesses including the newspaper
reporters was to somehow or other usurp the office of president of the Indian Olympic
Association with the hope that the Government of India and the Ministry of Sports
would support him in his adventure so that he could be the president of the Indian
Olympic Association to represent India at the Asiad to be held in Beijing and the
respondent appellant on the very next day, broke open the lock of the office of the
Indian Olympic Association in the Jawahar Lal Nehru stadium and had physically
trespassed and occupied the office, plaintiff/applicant sought a direction that Thiru E.
S. Adityan continued to be the president of the Indian Olympic Association and that
the meeting, if any, purported to have been held by Thiru V. C. Shukla after the
adjournment of the Special General Meeting on 15-6-1990 and the resolution if any
purported to have been passed appointing Thiru V. C. Shukla as President of the
Indian Olympic Association would be of no legal consequence and would have no legal
effect.
8. The respondent/appellant however appeared and filed a counter-affidavit in the contempt
application. He has stated in the counter-affidavit that he came to know about the orders of this Court
only after the meeting was concluded and,
"Curiously when lot of publicity was being generated by this issue the newspapers
which came out on the 15th June Morning 1990 did not contain any report of the
orders of this, Hon'ble Court passed on 14-6-1990 itself."
And alleged that the first defendant in the suit had intentionally not brought to the
notice of the members the order passed by this Court before the meeting because of
two reasons. (1) Because the entire General Body of I.O.A. was aware of the closeness
of the Association between the Plaintiffs/Petitioners and Thiru B. S. Adityan (first
defendant in the suit) and the fact that the suit was a clear abuse of process of Court
and obviously collusive in nature,
"If the orders were made known Thiru Adityan would possibly have lost any remaining
sympathy which the General body would have for him and defeat him at the election.
Therefore it suited his purpose to withhold service of the order. If he were really eager
to enforce the order, the same could easily have been affixed at the entrance of the
meeting hall or even xeroxed and handed over to the members, neither of which were
done".
Secondly, both Thiru Adityan and Thiru Murugan were part of the General Body in
1980 which amended the Constitution of I.O.A. to make voting by show of hands
mandatory,
"Indeed it was by show of hands on a resolution moved by the Plaintiffs among others
that I am unseated from my Presidency in Trivandrum in 1987."
He has stated that the collusive nature of the suit would be further evidenced by his
name not figuring in the list of parties in the suit. He has alleged that Thiru Adityan
and his men including the plaintiffs had deliberately withheld the information about the
orders of this Court because Thiru Adityan knew that he would have possibly lost even
the remaining sympathy which the General Body would have for him and would be
defeated at the election and that it was he who had tried to create a pandemonium
with the sole purpose of calling off the meeting and declare himself elected by secret
ballot.
9. The plaintiff/respondents supported the allegation of contempt by filing a copy of the order of the
Delhi High Court in I.A. No. 4515 of 1990 in Suit No. 1871 of 1990, a report of the observer
appointed by the Delhi High Court and submitted in Suit No. 1871 of 1990 in the Delhi High Court, an
extract of a newspaper report supported by the affidavit of the Reporter and a copy of the First
Information Report lodged by a Police Officer.
10. The respondent/appellant supported his stand by filing an affidavit of one V. K. Malhotra, who is
the President of the Archery Association of India, a Member of Parliament and one of the members of
the Association and affidavit of one G. S. Mandar, the President of the Wrestling Federation of India
(Director General of Central Industrial Security Force) and a member of the Association, who
attended the meeting and prepared the minutes of the meeting.
11. Thiru Murugan has filed a reply-affidavit and alleged,
"No meeting at all was held at the Park Sheraton Hotel on June, 15, 1990 at which any
resolution of no confidence was passed or V. C. Shukla elected President of the I.O.A.
or where he was authorised thereafter to nominate any executive Council. That is for
the reason that the report of the observer or any of the two other reports including the
affidavit of the petitioner herein, give a true and faithful account of what transpired at
the meeting where persons who held high offices or were office-bearers of sporting
associations or federations were prepared to resort to hooliganism, rioting and violence
for the purpose of seizing a powerful organisation and taking over control. The action
of V. C. Shukla and his supporters which is vividly described in these three reports
would show that if they are allowed to retain their advantage or benefit of their extra-
legal actions including their resorting to violence and rioting even for a day, the rule of
law would suffer the credibility of the proceedings of court would be seriously affected.
It is obvious that the minutes are fabricated ones. No meeting was in fact held on June
15, 1990 in the Park Sheraton Hotel, that signatures were collected subsequently as
the minutes and the signatures have seen the light of the day for the first time only on
25th of June 1990. Those fabricated minutes do not even speak to the presence of the
observer or anything that he had said and done on that day. A fraud had been
perpetrated on this Hon'ble Court by V. C. Shukla by pretending to have been elected
at a meeting held on that day in the Park Sheraton Hotel and by fabricating minutes of
such a meeting. The respondents are guilty of having filed forged documents before
this Hon'ble Court and the petitioner reserves his right to take criminal action by filing
appropriate proceedings u/S. 340 of the Criminal Procedure Code."
12. Learned trial Judge has disposed of the sub-application only saying.
"In disposing of this Sub Application it is not relevant or necessary to go into the
question of contempt, that I feel the contention put forward that there was no
intimation or information or knowledge about the order passed by this Court at the
meeting cannot at all be accepted. The learned counsel for the respondent submitted
that no reliance could be placed by this Court on the report of the observer and merely
because the observer happened to be a Retired Judge of the Delhi High Court,
importance need not be attached to them and according to the learned counsel, since
the said observer had been paid Rs. 20,000/- by way of cheque issued by the IOA
which was allowed to be encashed by V. C. Shukla, the report is a biased one. As
regards this contention I wish to point out that this Court in placing reliance not
because he happened to be a retired Judge of the Delhi High Court, but he happened
to be an observer appointed by the High Court whatever office he held before. I do not
think that the said observer could have wholly given a wrong version of the incident as
regards the order passed by this Court being made known to V. C. Shukla and others
by the observer as well as by B. S. Adityan. Since the resolution proposed to be moved
against Adityan, it was not proper for Mr. Adityan to be the President of the meeting.
Such an objection could have been raised and objection could have been given in
writing to Adityan and they would have requested the meeting to be postponed to get
further orders from this Court. Even under the Constitution of IOA the President shall
preside over the meeting of the Assembly and the Executive Council. Even assuming
for a moment that the order of this Court directing Adityan to be President of the
meeting was not made known, the Constitution IOA lays down that he shall be the
President of such meeting. When the requisitionists wanted him not to preside over the
meeting, as observed earlier, there could have been a requisition given to the
President not to preside over the meeting."
Learned trial Judge has found that on the facts pleaded before him, the plaintiff
respondents were entitled to come forward with the prayer that the alleged resolution
purported to have been passed by V. C. Shukla as the President of Indian Olympic
Association would be of no legal consequence and would have no legal effect and for a
further direction that the office premises of the Indian Olympic Association be restored
by him to B. S. Adityan.
13. The appellant first filed Contempt Appeal No. 5 of 1990 which was posted before the First Bench
of this Court. A preliminary objection was raised on behalf of the respondents as to the
maintainability of the contempt appeal. The appellant then filed a petition in C.M.P. No. 9627 of 1990
praying therein,
"Should this Hon'ble Court deem that a contempt appeal as the one filed above is not
maintainable, the appellant prays that this Hon'ble Court, in the interest of justice, be
pleased to order conversion of this Contempt appeal as an appeal filed under Cl. 15 of
the Letters Patent Act in the interest of justice."
After hearing learned counsel for the parties, the First Division Bench allowed the
prayer and permitted the conversion of the contempt appeal into a letters patent
appeal. The issue as to the maintainability of the contempt appeal has already been
concluded by an order of this Court dated 14-8-1990. The impugned order however
has been stayed by a Bench of this Court by an interim order dated 14-8-1990 in
C.M.P. No. 9042 of 1990. The situation as on this date is that the appellant is
functioning as the President of the Indian Olympic Association and it is stated that a
new Executive Council has been nominated by him which has since assumed office.
14. To complete the narration of facts, we may here state that at some stage of the proceedings
before this Court, certain Special Leave Petitions were preferred before the Supreme Court by Sri
Murugan and the Tamil Nadu Olympic Association and the Supreme Court on 5-9-1990 passed orders
during the pendency of this appeal to the effect that the affairs of the Indian Olympic Association are
in the very sorry state indeed and urgently need looking into it observing,
"Unless some remedial measures are taken, it appears that it might be difficult to
conduct the management of the Association in a democratic manner in accordance
with its constitution."
The Supreme Court passed no substantive order in the matter as it found that the
appeal was to be heard by this Court, but ordered,
"There will however be an order that neither Mr. V. C. Shukla nor Mr. Adityan shall
represent the Indian Olympic Association at the Asian Games commencing on
September 22, 1990. It is clarified that this order will not prevent either of them from
going to attend the Games in their private capacity or in any other capacity. The
Government of India, if it think fit may nominate any person eminent in the field of
sports other than a party to the dispute in this case to represent the Government and
accompany the Indian Olympic Team. It is clarified that such person shall, however,
not claim in any manner to represent the Indian Olympic Association but will
accompany the team merely as a representative to the Government of India.
15. Government of India however has given a letter on 20-6-1990 to Sri V. C. Shukla Stating,
".....in order to avoid any deadlock in the functioning of Indian Olympic Association
(IOA) particularly in view of our participation in the forthcoming Beijing Asian Games
being held in September-October 1990, Government would deal with you as President,
IOA on interim basis, till such time final !decisions are taken in respect of any matters
pending in court between you and others."
16. There was a suit filed in the Delhi High Court being Suit No. 1871 of 1990 in which a petition I.A.
No. 2515 of 1990 was also filed. The said suit and the petition were filed by the Indian Olympic
Association through its Secretary General that is to say that second defendant in C.S. No. 481 of
1990 on the file of this Court. A learned single judge of the Delhi High Court on 8-6-1990 disposed of
the petition for interim injunction by recording that the President of the Plaintiff Association that is to
say the first defendant in C.S.No. 481 of 1990 had already convened a meeting at Madras on 15-6-
1990 and thus no parallel meeting should be held at Delhi and accordingly ordered,
"I am of the opinion that plaintiff has made a good prima facie case. The balance of
convenience also lies in favour of plaintiff as the President of Plaintiff Association has
already convened the meeting at Madras on June 15, 1990. Plaintiff will suffer an
irreparable loss and injury in case, a parallel meeting is held.
It is made clear that in the Special General Meeting to be held at Madras on June 15,
1990, the resolution with regard to loss of confidence in the present Executive Council
shall also be considered and put to vote. All the members shall be entitled to
participate in the meeting and shall have the right to exercise their votes.
In my view, an observed to be appointed by this Court, should be present at the
Special General Meeting to be held at Madras on 15th June 1990. I appoint Mr. V. P.
Singh, Senior Advocate, as Observer for this purpose. His tentative fee is fixed at Rs.
10,000/-. All his expenses shall be borne by the plaintiff Association."
It appears that by a subsequent order of the Court Mr. V. P. Singh was replaced by Mr.
Avadh Behari Rohtagi, a retired Judge of the Delhi High Court, who it is admitted, was
present on 15-6-1990 at the commencement of the meeting at Park Sheraton Hotel.
He has submitted a report dated 31-6-1990 in which he has stated that he reached the
venue of the meeting at 11-30 a.m. on 15-6-1990. The meeting was to begin at 12-15
p.m. When however he reached, an order of the Court dated 14-6-1990 passed in C.S.
No. 481 of 1990 was served on him. In that order, Learned Judge directed that the
voting on the resolution would be by secret ballot and ballot papers would be signed by
the Secretary General of the Indian Olympic Association as well as by the observer
appointed by the Delhi High Court and only such ballot papers as were signed by them
would be held to be valid. The Court had further directed that the meeting to be held
on 15-6-1990 would be presided over by Sri Adityan who was the President of the
Indian Olympic Association. Since the Delhi High Court had allowed the Special General
Meeting to consider and vote upon the resolution afore-quoted which had been moved
by certain members of the Association against the present set of office-bearers headed
by B.S. Adityan. There were about 123 members who were divided into two groups,
one headed by Adityan and the other headed by Shukla. Before the resolution could be
considered and put to vote, Vijay Kumar Malhotra, a leading requisitionist announced
that the requisitionists had no confidence in Adityan and that they did not want him to
preside the meeting and Mandher, President of the Wrestling Federation of India, was
requested to take the chair. Mandher took his seat near Adityan and proposed name of
V. C. Shukla for the office of President. Thereafter, the report says,
"At this stage 1 announced that this was illegal and brought to the notice of the abuse
the order of the Madras High Court served upon me. V. C. Shukla came to me. I
showed him the order. He read it. Similarly V. K. Malhotra came to me and read the
order. Others also saw the order. Everyone had come to know that the Madras High
Court had directed Voting on the resolution by secret ballot and Adityan to preside at
the meeting, After his name was proposed, Shukla came and set near us where
Adityan, President, Randhir Singh, Secretary-General, and I were sitting. Shukla and
Adityan began to talk. Adityan insisted on secret ballot as directed by the Madras High
Court. Shukla did not agree. He refused to recognise the Madras High Court order. This
talk between the two went on for the rest part of the day to find out some solution or
compromise formula. When no agreement was reached Adityan announced that voting
by secret ballot will take place. Ballot papers and ballot box were brought. One or two
persons cast their votes. But voting was riot allowed to go on. The requisitionists tore
the ballot papers and smashed from my hand. I was pushed aside and manhandled.
There was a pandemonium. The Police had to intervence to restore order so that
voting takes place."
According to this report,
"The long and short of the entire sordid affair is that there was no consideration of the
resolution and there was no voting either by secret ballot nor by show of hands.
Instead there was confusion, chaos, fighting and shouting. There was a good exhibition
of muscle power and lung power..... From what I saw I can say this. There was no
election. No voting on the resolution. Voting had to take place by secret ballot. No
sooner voting process began all hell broke loose. It was a free for all right with no
holds barred. Such a State was not conducive to voting or election on any sane
discussion for that matter. It was impossible to conduct the meeting in the confusion
and chaos that prevailed. The requisitionists saw to it that voting does not take place.
The Madras High Court order was set at naught."
Sri Avadh Behari Rohtagi has said in his report,
"Adityan complained that Shukla has brought in people without accreditation cards.
Similar was the complaint of Shukla against Adityan. I cannot say anything on this as
there was trouble from the very beginning and nothing was orderly."
17. From what we have already noticed, it can be said :
(1) Certain members of the Association wanted convening of Special General meeting
and accordingly gave notice dated 16-5-1990 to resolve that the House had lost
confidence in his Executive Council and to elect a new Executing Council. The notice
suggested that the meeting should be convened at New Delhi within the specified
period or else the requisitionists would hold the said meeting on 16-6-1990 or on any
day thereafter at the National Stadium, New Delhi to consider the above noted item in
the agenda.
(2) The second respondent representing the Association, filed a suit in the Delhi High
Court, being Suit No. 1871 of 1990 in which suit a prayer for injunction was made
against the requisitionists. The Delhi High Court on 6-6-1990 passed an order
restraining the requisitionists from holding any meeting at Delhi but directed that the
Special General Meeting to be held at Madras would be so held and the resolution with
regard to loss of confidence in the Executive Council would also be considered and put
to vote. The Delhi High Court appointed Sri Avadh Behari Rohtagi, a retired Judge of
the said Court as an Observer, who was present at the meeting on 15-6-1990 at
Madras Park Sheraton Hotel.
(2) After the order of the Delhi High Court that is to say on 10-6-1990, C.S. No. 481 of
1990 was filed in this Court by the plaintiffs, one being the Tamil Nadu Olympic
Association represented by Sri Murugan, its General Secretary and another being
Murugan in person, who is the Joint Secretary of the Indian Olympic Association. Only
B.S. Adityan, the President of the Indian Olympic Association and Randhir Singh, the
Secretary General of the Association were impleaded as party defendants.
(4) Between 11-6-1990 and 14-6-1990, more than one petitions for interim injunction
or direction were filed in C.S. No. 481 of 1990 and on 14-6-1990 learned trial Judge
passed the order in the presence of the defendants, who were represented by their
counsel that resolution mentioned in the meeting notice would be put to vote by secret
ballot and that the ballot papers or voting papers which would be issued to the voting
persons, would be signed before issue by the Secretary Genera] of the Association
(Second defendant in the suit) as well as the Observer appointed by the Delhi High
Court and only such ballot papers or voting papers signed by them would be held to be
valid and further that the meeting as schedule on 15-6-1990 would be presided over
the first defendant Sri Adityan.
(5) On 16-6-1990 according to one version, supporters of Sri Shukla created
disturbances and chaos and according to the other version, Sri Adityan and his men
deliberately withheld information about the order of the Madras High Court and the
first defendant tried to create a pandemonium with the sole purpose of calling off the
meeting and declare himself elected by secret ballot.
(6) According to one version when Sri Adityan found that the supporters of Sri Shukla
were not allowing the voting by secret ballot, he adjourned the meeting. According to
the other version, in spite of the attempt of Sri Adityan and his supporters to somehow
forestall the meeting or to get himself declared as elected by a Sham secret ballot, the
no confidence resolution was adopted and Sri Shukla elected at the said meeting as
the President by show of hands and was authorised to nominate the other office-
bearers.
18. Thus the meeting of the Association either ended in the pandemonium without any vote of no
confidence or election of the meeting adopted the resolution of no confidence a majority vote by show
of hands and authorised Shukla to nominate other members of the Executive Council. In either case,
this Court's direction was not carried out. Whether it was on account of the supporters of Sri Shukla
interfering or on account of Sri Adityan deliberately withholding the information about the order of
this Court and whether the alleged meeting was adjourned after pandemonium by Adityan or was
held under the Presidentship of Sri Mandher in which Sri Shukla was elected as the President by show
of hands, Sri Shukla admittedly has assumed the office of President.
19. Our task in the instant case however is limited to first retracing or exploring the jurisdiction of the
Court to pass an order of the nature of the impugned order which on the one hand is a sort of
declaration and on the other an order of mandatory injunction against the appellant and examining
whether the facts of the case warranted a direction of this nature or not.
20. There are powers of this Court which are spelt out in various provisions of the Constitution of
India and the statutes framed by the Parliament or the competent Legislature. But this Court's power
as the Court of Record has been recognised since its creation and left unaltered by Art. 215 of the
Constitution which states,
"Every High Court shall be a Court of Record and shall have all the powers of such a
Court including the power to punish for contempt of itself."
This provision like Art. 129 of the Constitution of India which similarly states about the
Supreme Court being a Court of Record and powers of such a Court including the
power to punish for contempt itself is generally recognised as the Court's power to
punish for its contempt although it is clear that the power to punish contempt for itself
is Only one of such powers of the High Court as a Court of Record. Framers of the
Code of Civil Procedure, 1908 like the framers of the Constitution of India were also
aware of such special jurisdiction of the court and provided two savings, one in
S. 4 thereof and the other S. 151 thereof to recognise such a special and inherent
jurisdiction of the Court. S. 4 of the Code of Civil Procedure States,
"(1) In the absence of any specific provision to the contrary, nothing in this Code shall
be deemed to limit or otherwise affect any special or local law now in force or any
special jurisdiction or power conferred, or any special form of procedure prescribed, by
or under any other law for the time being in force. (2) In particular and without
prejudice to the generality of the proposition contained in sub-sec. (1), nothing in this
Code shall be deemed to limit or otherwise affect any remedy which a Land holder or
landlord may have under any law for the time being in force for the recovery of rent of
agricultural land from the procedure of such land."
Section 151 of the Code states,
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power
of the Court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court."
21. Similar provisions may be found in Ss. 5 and 482 of the Code of Criminal Procedure, 1973
wherein again it is stated,
"S. 5. Nothing contained in this Code shall in the absence of a specified provision to
the contrary affect any special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure prescribed, by any
other law for the time being in force.
S. 482. Nothing in this Code shall be deemed to limits or affect the inherent powers of
the High Court to make such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice."
22. We do not think it necessary in the instant case to make any comparative study of the Civil and
Criminal Jurisdiction of the High Court or the powers that this may exercise in a civil or criminal
proceeding because in the instant case, we are concerned with a civil proceeding pending in this
Court in which a certain order was passed and since that order has been allegedly violated, a
application contempt has been filed followed by a sub-application therein under S. 151 of the Code of
Civil Procedure in which application the impugned order has been passed. We may however state one
contention raised on behalf of the appellant that a contempt proceeding being a criminal proceeding,
the rules that are applied to a criminal proceeding have to be applied in the contempt case filed on
behalf of the plaintiff/respondents and thus in the sub-application also, the same rules should be
applied. Such a contention however is nothing but a misapprehension and a mistake in understanding
the true nature of a contempt proceeding. A contempt proceeding is a proceeding of special
jurisdiction of a Court of Record and a contemner is not an accused in a criminal case although some
limes he is so described. The Courts have extended the rules of proof beyond, reasonable doubt and
such other rules of procedure in a contempt proceeding only to emphasise that as Courts of law and
Courts of Record, they must act fairly and give full opportunity to the contemner, who may not]
establish his innocence but show that the allegations levelled against him are not free from doubt. In
that sense contempt proceedings are described as quasi-criminal proceedings. Otherwise they are
proceedings of a summary nature and the Courts evolve their own procedure to dispose of such
proceedings.
23. Apart from the provisions in Art. 215 of the Constitution of India, the Code of Civil Procedure and
the Code of Criminal Procedure saving the inherent jurisdiction of the Court including its contempt
jurisdiction, Art. 225 of the Constitution is another provision which emphatically saves the inherent
jurisdiction of the High Court, it states,
"Subject to the provisions of this Constitution and to the provisions of any law of the
appropriate Legislature made by virtue of powers conferred on that Legislature by this
Constitution, the jurisdiction of, and the law administered in, any existing High Court,
and the respective powers of the Judges thereof in relation to the administration of
justice in the Court, including any power to make rules of Court and to regulate the
sittings of the Court and the members thereof sitting alone or in Division Courts, shall
be the same as immediately before the commencement of this Constitution."
This not only saves the existing jurisdiction of this Court, but also saves the inherent
jurisdiction. As a result of these provisions, it can be slated without any hesitation that
as the incidence of Court of Record, this Court has got the power to determine the
question as to its own jurisdiction and it has inherent power to punish for its contempt
summarily.
24. In Govindarajulu v. Imperial Hank of India MANU/TN/0187/1931 : AIR1932Mad180 , when a
learned single Judge of this Court was confronted with an argument that if an injunction cannot be
passed under the provisions of Order 39, Rule 1 or 2 of the Code of Civil Procedure, it would not be
permissible to seek the power under Section 151 of the Code in order to justify such an order,
accepted the contention that an injunction to restrain the respondent from executing a certain decree
could not be granted in exercise of the inherent power of the Court (which has been subsequently
overruled by the Supreme Court), but proceeded to consider the jurisdiction of this court as a Court
of Record and said,
"..... So far as a Court which is restricted to the terms of the Code of Civil Procedure it
concerned, it has been held by Phillips, J. in Varadacharyulu v.Narasimhacharyulu
MANU/TN/0338/1925 : AIR1926Mad258 , which I had occasion to follow in
Ayyaperumal Nadar v. Mulhuswami Pillai MANU/TN/0269/1927 : AIR1927Mad687 that if
an injunction cannot be passed under the pr visions of O. 39, Rule 1 or R. 2, it is not
permissible to seek the power under Section 151 of the Code in order to justify such an
order. It has however been argued now that a High Court is not restricted to the terms
of the Code, but possesses an equitable power, otherwise derived, to control the
proceedings in other Courts. There can be no doubt that in England a power of this
character exists and a discussion of the nature of it will be found in Ellerman Lines Ltd.
v. Read (1928) 2 KD 144. In that case the question arose as to whether a British
subject could be restrained from enforcing a foreign judgment, in execution, and the
court of appeal answered the question in the affirmative, the principle upon which the
matter was decided being clearly explained in the judgment of Atkin, L.J., namely, that
the Court in granting injunctions does not seek to assume jurisdiction over the foreign
Courts or arrogate to itself some superiority which entitle it to.....dictate to the foreign
Court, or that it seeks to criticize the foreign Court or its procedure :
"The English Court has regard to the personal altitude of the person who has obtained
the foreign judgment. If the English Court finds that a person subject to its jurisdiction
has committed a breach of covenant, or has acted in breach of some fiduciary duty or
has in way violated the principles of equity and conscience, and that it would be
inequitable on his part to seek to enforce judgment obtained in breach of such
obligation, it will restrain him, not by issuing an edict to the foreign court, but by
saying that he is in conscience bound not to enforce that judgment."
I do not propose to go so far as the learned Judges who decided Ganga Singh v. Pirthi-
chand Lal, AIR 1922 Pat 34, and who appear to have based their decision as to the
power of a Court (not necessarily a High Court) to issue an injunction in certain
circumstances purely upon English precedents and without any reference to the terms
of the Code of Civil Procedure. But there is authority for the view that the High Courts,
over and above the powers which they enjoy under that Code possess an equitable
jurisdiction derived from the old Supreme Court to issue an injunction in appropriate
cases. This is the basis of the decision in Pariakaruppan Chettiar v. Ramaswami
Chettiar MANU/TN/0220/1927 : AIR 1928 Mad 497where Ramesam and Devadoss, JJ.
held that the Chartered High Courts have such a power following Rash Behary Day v.
Bhowani Churn Bhose I.L.R.(1907) Cal 94 and Mungle Chand v. Gopal
Ram I.L.R.(1907)Cal 101. In that former of these two decisions Woodruff ,J. who
certainly is a high authority on question of procedure, gave it as his opinion that a
High Court had and has, independently of the Civil Procedure Code, power to make an
order of the nature sought, and he answered in the negative the question whether
there was anything in the Civil Procedure Code which took away that power. That case
was decided under the old Code, but I do not think that there is anything either in
S. 151 or any other provision of the new Code which would deprive a High Court of
powers derived independently of it. Another case Singaravelu Mudali v. Balasubramania
Mudali MANU/TN/0561/1926 : AIR1926Mad1126 , decided by Ramesam, J. has been
cited to me as an authority in favour of the existence of the power, but I observe that
he was able to bring the injunction within the terms of R. 2, O. 39 so that the
remaking observations in the learned Judge's Judgment are, I think merely obiter,
though, as I understand them, he was of opinion that a power exists apart from the
terms of that rule. It appears to me however that Periakaruppan Chettiar v.
Ramaswami Chettiar AIR 1228 Mad 491 is sufficient authority for the general
proposition that this Court is not bound by the terms of the Code in issuing injunctions
in appropriate cases. It appears to me that a case of the present for the exercise of
such a power. We have two proceedings going on at the same time, one the execution
of the decree and the other a proceeding which may eventuate in the decree being set
aside. It is quite clear that these two proceedings, if allowed be to on independently
may lead to incompatible and perhaps unfortunate consequences. I think accordingly
that, in general, there is justification for a Court exercising the power to restrain the
holder of the decree against which such proceedings are pending from exercising it."
25. In Sukhdev Singh v. Teja Singh, AIR 1954 SC 186 : 1954 Cri LJ 460 a clear pronouncement of the
Supreme Court is available as to the nature of the contempt jurisdiction of this Court. One of the
arguments advanced before the Supreme Court was that a contempt being punishable under the
Contempt of Courts Act, 1952 or an offence punishable by a law consequently triable under the
Criminal Procedure Code. As Section 5 of Code of Criminal Procedure made it applicable not only to
the trial of offences under the Indian Penal Code but also to the trial of offences against other laws.
The Supreme Court rejected the said contention saying, (Para 3)
"We are unable to agree. In our opinion, the power of a High Court to institute
proceedings for contempt and punish where necessary is a special jurisdiction which is
inherent in all Courts of Record and S. 1(2) of the Code expressly excludes special
jurisdiction from its scope."
Section 5 of the Code of Criminal Procedure, 1973 is similar to Section 1(2) of the
1898 Code. The Supreme Court then proceeded to examine as to what this "special
jurisdiction "is and noticed that the term "special jurisdiction" is not defined in the
Criminal Procedure Code but the words "special law" defined in Section 41of the Indian
Penal Code would mean "a law applicable to a particular subject" and the said (Para 3)
"..... In the absence of any specific definition in the Criminal Procedure Code, we think
that that brings out the ordinary and natural meaning of the words "special
jurisdiction" and covers the present case. Contempt is a special subject and the
jurisdiction is conferred by a special set of laws peculiar to Courts of Records."
Making thereafter a study of the law on the subject, the Supreme Court proceeded to
take notice of the view of the Courts in India and referred to several authorities on the
subject and stated (page 5)
"This has long been the view in India. In 1867, Peacock C.J., laid down the rule quite
broadly in these words In 'In re Abdool: (1867) 8 SWR 32 '.
"There can be no doubt that every Court of Record has the power of summarily
punishing for contempt."
It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin
of the power in the case of the Calcutta, Bombay and Madras High Courts to the
Common Law of England : See 'Surendranath v. Chief Justice and Judges of the High
Court of Bengal', 1982 10 Tnd App 171 but it is evident from other decisions of the
Judicial Committee that the jurisdiction is broader based than that. But however that
may, be Sir Barnes Peacock made it clear the words "any other law" in Section 5 of the
Criminal Procedure Code do not cover contempt of a kind punishable summarily by the
three chartered High Courts.
Now it is relevant to note in this connection that whatever the origin of the jurisdiction
may be in the case of those three courts, the Charter of 1974, which established the
Supreme Court of Bengal, while providing in clause 4 that the Judges should have the
same jurisdiction has the Court of King's Bench in England, also expressly stated in
clause 21 that the Court is empowered to punish for contempt.
When the Supreme Court of Bengal was abolished, the High Courts Act of 1861
continued those powers to the Chartered High Courts by Sections 9 and 11 and clause
2 of he Letters Patent of the year 1865 continued them as Courts of Record. Despite
this, in 1883 the Privy Council did not trace this particular jurisdiction of the Calcutta
High Court to clause 15 of its charter but to the Common Law of England. But what is
the Common Law? It is simply this: that the jurisdiction to punish for contempt is
something inherent in every court of record.
Sulaiman, J. collected a number of English authorities at pages 631 to 632 of his
judgment In re Abdul Husan Jauhar, MANU/UP/0138/1926 : AIR1926All623 , and
concluded thus:
"These leading cases unmistakably show that the power of the High Courts in England
to deal with the contempt of inferior courts is based not so much on its historical
foundation as on the High Court's inherent jurisdiction."
Apparently, because of [his the Privy Council held in 1853 that the Recorder's court at
Serrc Leona also had jurisdication to punish for contempt, not because that Court had
contempt, not because that court had inherited the jurisdiction of the English courts
because it was a Court of Record. Their Lordship's language was this:
"In this country every Court of Record is the sole and exclusive judge of what amounts
to a contempt of court ..... and unless there exists difference in the constitution of the
Recorder's Court at serrc Legion the same power must be conceded to be inherent in
that Court..... We are of opinion that it is a Court of Record and that the law must be
considered the same as in the country."
The 1884 edition of Belchamber's Practice of the Civil Courts also says at page 241
that :
"Every superior Court of Record whether in the United Kingdom ,or in the colonial
possessions or dependencies of the Crown has 'inherent' power to punish contempts,
without its precincts, as well] as 'in facie curiae' ..... So also 7 Halsbury's Laws of
England (Hailsham edition) page 2.
"The superior courts have an 'inherent jurisdiction' to punish criminal contempt etc....."
But reverting to the developments in India, the High Court of Allahabad was
established in 1866 under the High Courts Act, 1861 and was continued a Court of
Record. In 1906 the Privy Council remarked at page 108 of its judgment in -- 'In the
matter of Sashi Bhushan Sarbadhicary I.L.R.(1907) All 95 : 1907 5 Cri LJ 57
"There is also no doubt that the publication of this libel constituted a contempt of Court
which might have been dealt with by the High Court in a summary manner by fine or
imprisonment or both."
After this came the Government of India Act, 1915. Section 106 continued to all High
Courts then in existence the same jurisdiction, powers and authority as they had at the
commencement of that Act, and Section 113 empowered the establishment of new
High Courts by Letters Patent with authority to vest in them the same jurisdiction,
powers and authority "as are vested in or may be conferred on any High Court existing
at the commencement of this Act."
The Supreme Court has thereafter referred to various judgments of the Indian Courts
including the Special Bench judgment of the Lahore High Court in Habib, in the Matter
of AIR 1926 Lah1 ; 1925 26 Cri LJ 1409 In the Matter of Muslim Outlook, Lahore AIR
1927 Lah 610 : 1927 Cri LJ 727 Matter of Har Kishan Lal AIR 1937 Lah 497 : 1937 Cri
LJ 883, a Special Bench Judgment of the Allahabad High Court in In re Abdul Hasain
Juhar MANU/UP/0138/1926 : AIR1926All623 and a Full Bench of the Patna High Court
in Emperor v. Murali Manohar Prasad MANU/BH/0195/1928 :
AIR1929Pat72 MANU/BH/0195/1928 : AIR1929Pat72 and other cases and stated :--
"Finally in -- 'Parashram Detaram v. Emperor MANU/PR/0018/1945 the Privy Council
said that,
"this summary power of punishing for contempt..... is a power which a court must of
'necessity' possess".
and added,
We have omitted references to the Bombay and Madras decisions after 1883 because
the Judicial Committee settled the powers of the three Chartered High Courts. What
we are at pains to show is that, apart from the Chartered High Courts, practically
every other High Court in India has exercised the jurisdiction and where its authority
has been challenged each has held that it is a jurisdiction inherent in a Court of Record
from the very nature of the Court itself. This is important when we come to construe
the later legislation because by this time it was judicially accepted throughout India,
that the jurisdiction was special one inherent in the very nature of the court".
The Supreme Court has thereafter referred to Art. 215 of the Constitution, the
Contempt of Courts Act, 1926, which was repealed by the Contempt of Courts Act,
1952 and said.
"In any case, so far as contempt of a High Court itself is concerned, as distinct from
one of a subordinate court, the Constitution vests these rights in every High Court, so
no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of
its own authority."
and concluded.
"We hold, therefore, that the Code of Criminal Procedure does not apply in matters of
contempt triable by the High Court. The High Court can deal with it summarily and
adopt its own procedure. All that is necessary is that the procedure is fair and that the
contemner is made aware of a the charge against him and given a fair and reasonable
opportunity to defend himself."
26. In Manohar Lal v. Seth Hiralal MANU/SC/0056/1961 : AIR1962SC527 , however, the inherent
jurisdiction of the Court to make orders ex debito justitiae was recognised by the Supreme Court in
these words, (at p. 537 of AIR).
"It is true that the High Courts constituted under charters and exercising ordinary
original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain
parties in a suit before them from proceeding with a suit in another court, but that is
because the chartered High Courts claim to have inherited this jurisdiction from the
Supreme Courts of which they were successors. This jurisdiction could be saved by
S. 9 of the Charter Act (24 and 25 Vict. C. 104) of 1861 and in the Code of Civil
Procedure. 1908, it is so expressly provided in S. 4. But the power of the Civil Courts
other than Chartered High Courts must be found within S. 94 and O. 39, Rr. 1 and 2 of
the Civil Procedure Code.
The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules
for guidance in respect of all situations nor does it seek to provide rules for decision of
all conceivable cases which may arise. The civil courts are authorised to pass such
orders as may be necessary for the ends of justice, or to prevent abuse of the process
of court, but where an express provision is made to meet a particular situation the
Code must be observed, and departure therefrom is not permissible. As observed
in MANU/PR/0025/1935 :
"It is impossible to hold that in a matter which is governed by an Act, which in some
limited respects gives the Court a statutory discretion, there can be implied in Court,
outside the limits of the Act a general discretion to dispense with the provisions of the
Act."
Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly
affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify
the provisions of the Code. Where the Code deals expressly with a particular matter,
the provision should normally be regarded as exhaustive."
27. Thus this court's special jurisdiction as well-as inherent jurisdiction to make orders ex debito
justitiae on the one hand and to punish for its contempt on the other, cannot be doubted and if a
jurisdiction exists in a court, the court always has the right and duty to exercise that power as
effectively as possible as it is always a inherent jurisdiction of the court to make its power effective
even though there is no specific provision of law to cover that particular power.
28. Article 215 of the Constitution has made no distinction between a civil contempt or a criminal
contempt and covers the whole field of litigation, civil or criminal and any thing that tends to crucial
or impair the freedom of the limbs of the judicial proceedings. The courts in their attempt to identify
the nature of contempt have noticed however three different sorts of contempt viz., (1) scandalising
the court itself. (2) abusing parties who are concerned in causes before it and (3) prejudicing
mankind against persons before the case is heard. We need not however wander into this arena as
the Parliament has enacted the Contempt of Courts Act, 1971 and defined "contempt of Court" to
mean civil contempt or criminal contempt, 'civil contempt" to mean wilful disobedience to any
judgment, decree, direction order, writ or other process of a court or wilful breach of an undertaking
given to a court" and, ..... "Criminal contempt" to mean the publication, whether by words, spoken or
written or by single or by visible representations, or otherwise of any matter or the doing of any other
act whatsoever which scandalizes or tends to scandalise or lowers or tends to lows the authority of
any Court or prejudice or interferes or tends to interfere with the due course of any Judicial
proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the
administration of justice in any other manner. The present appeal is concerned with the civil
contempt only although it is conceded before us that there are several allegations in the contempt
application, which make out a case of criminal contempt. Civil contempt is thus essentially concerned
with the enforcement of judgment, decree, direction, order, writ or other process of a Court. The
administration of justice can only be effective if it has the means to enforce the court's judgment and
orders. That is why civil contempts are also called contempt in procedure. Courts also do not easily
resort to the contempt procedure. Contempt is a blunt weapon. It is used sparingly and only in cases
where when it is found difficult to generate obedience and respect for the court or when a court
attempts to secure obedience to its. orders, directions, etc., or to elicit respect to it. It rarely does
any such thing to grandiose its Officers on the man power including the judges. It does so, first to
undo the wrong done and secondly to ensure that the administration of justice is not brought into a
scorn or ridicule because there is no interest of the court, which is not public interest. If violations of
the Courts' orders will be ignored, there will be nothing left save for each person to take the law into
his own hands. Loss of respect for the Courts will ultimately result in the destruction of the rule of law
and ultimately the society. Still courts before seeking enforcement of their order, want to be satisfied
first to whom the order, writ or direction was addressed, whether to whom the order was addressed
knew about the court's order or not and whether such a person had willfully disobeyed the order of
the court or not. ,
29. One of the contentions before us has been that the order/direction/injunction of a court in a Civil
Proceeding is directed only to the party to a proceeding and its implementation therefore is required
by such a party alone. A stranger or a third party may be involved in contempt only if he is found
aiding or abetting or otherwise obstructing the enforcement of the Court's order. There is and there
can be no dispute to the rule that a person cannot be held guilty of contempt in infringing an order of
the Court he knows not.
30. Order 39 Rules 1 and 2 of the Code of Civil Procedure provide for temporary injunction in any suit
on proof that any property in dispute is in danger of being wasted, damaged or alienated by any party
to the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to
remove or dispose of his property with a view of defrauding his creditors or threatens to dispossess
the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit
and in any suit for restraining the defendant from committing a breach of contract or other injury of
any kind, to restrain the defendant from committing the breach of contract or injury complained of or
any breach of contract or injury of a like kind arising out of the same contract or related to the same
property or right.
31. We have already noticed that a Court's power to grant injunction is not confined to Order 39,
Rules 1 and 2 of the Code of Civil Procedure. In Appropriate cases, the Court can grant injunction
exercising its inherent power. Yet, a departure from the rule that any order or direction in the nature
of injunction should be directed to the parties to the suit or litigation before it cannot easil y be
allowed. That is why the first thing to know in such a case is who the contemner is, a party to the
proceeding or a stranger. In addition to holding those who have been expressly enjoined by an
injunction to have committed a contempt if they disobey the Older, a person who is not a party to the
action, who knowing of an injunction, order or direction, aids and abets the defendant in breaking it is
also a contemner is a rule which has since received wide recognition by almost every court. The rule
stated in Seaward v. Paterson 1897 Ch 545 has been so often repeated that it has almost become a
common knowledge that a person, who is not enjoined by the Court's order is not bound by the
injunction order or direction. That was a case in which an injunction had been granted restraining
Paterson, his agents and servants inter alia from doing or suffering to be done which may interfere
with the full and quiet enjoyment of the plaintiff or his under tenants of the premises adjoining or
neighbouring to the first, second and third floors of certain premises. In contravention of this
injunction, Paterson allowed boxing matches to be held on his premises. The motion to commit was
moved against him and other persons against whom it was alleged, had aided and abetted the
breach. The Court of Appeal in that case held.
"There is no injunction against him -- he is no more bound by the injunction granted
against Paterson than any other member of the public. He is bound like other
members of the public, not to interfere with, and not to obstruct, the course of justice;
and the case, if any, made against him must be this not that he has technically
infringed the injunction, which was not granted against him in any sense of the word,
but that he has been aiding and abetting others in setting the court at defiance, and
deliberately treating the order of the court as unworthy of notice. If he has so
conducted himself, it is perfectly idle to say that there is no jurisdiction to (punish) him
for contempt as distinguished from the breach of the injunction, which has a technical
meaning."
In this case the argument that Murray had no notice of the injunction since he was not
served with a copy of the order until after the boxing matches had been held, was
rejected because the Court was satisfied that he did in fact know of the terms since he
had been present during a great part of the trial and had been informed by Paterson of
the result immediately afterwards. His other argument that he was a mere spectator
and could not therefore be considered as an aider or abetter was also rejected because
it was shown that far from being a mere spectator, he was in fact acting as a
promoter. The Court however accepted in that case that being a mere spectator was
not enough per se to prove that he was aiding and abetting the breach.
32. In Thorne RDC v. Bunting (No. 2) (1972) 3 All ER 1084, a Bench of the Court of Appeal
considered a case of breach of undertaking and liability of third parties for contempt. Observing on
facts, Russell LJ, held.
"The mother and son had submitted to orders about their registrations limited to the
specific and small portions of the relevant land that belonged to the council. The
undertaking which the father submitted to (although it would seem apparently that it
went further than could have been obtained if the matter had been fully fought out)
extended to much more land; that is to say, to other land not the property of the
council. The result of the orders against the mother and son and the undertaking by
the father has been, of course to clear from the registration the lands in the whole
area in fact belonging to the council. The father has done his best to fulfil his
undertaking in respect of the rest of the land by saying "so far as I made it provisional
common land by the original application No. 807, then in respect of this land 1
withdraw it, and in so far as 1 was party to the applications in respect of rights 2279
and 2281. I am prepared to write a letter, take whatever step you require on my part,
to assist the de-registration in respect of the rights provisionally registered in relation
to this other land'. But the registration authority say. 'Well, in respect of this other
land, we cannot de-register from these rights registered provisionally under 2279 and
2281 because you, the father, are the only person who created or caused their original
registration. We are not prepared to act under the discretion given to us by a
particular sub-section. We are not prepared to delete the registration of these rights in
respect of this wider area of land; and consequently we are not prepared to take the
steps which will make this wider area of land cease to be common land. So far as we
are concerned, therefore, it will have to wait until the Commons Commissioners get
round to deciding how much (if any) of the whole of this area is in fact common land
and I, suppose, what common rights there are attached to any part of it," and then
said the crucial point,
"It is said here is the father; he admittedly has done his best to comply with his
undertaking. Here are the mother and son who are under no obligation under any
order of any court to take any step in relation to the withdrawal of registration Nos.
2279 and 2281 in connection with land in the total area other than land belonging to
the council."
Russell I...!., said.
"I am hound to say, at a very early stage in the hearing of this appeal, it came to me
as an astonishing proposition that in a case where no breach of the father's injunction
could be asserted and no relevant order was in existence against the mother and son,
anybody could say that the mother and the son, by not doing that which they were
under no possible obligation to do, were in contempt of court."
In this judgment, Seaward v. Paterson's case (1897) 1 Ch 545 (supra) on aiding and
abetting the breach of injunction and some other cases were referred to by the learned
judge but said,
"We have had our attention drawn to a phrase, six lines in an old note under the
heading 'Rules of Court' in Butler's Case (1696) 2 Salk 596. We have been referred to
some passages in the judgments delivered for the benefit of the House of Lords in
Miller v. Knox (1838) 4 Bing NC 574, relating to people aiding the Sheriff's execution.
We have been referred to a case of aiding and abetting breaches of an injunction,
Seaward v. Pater-son (1897) 1 Ch 545 to another one of aiding and abetting,
Phonographic Performance Ltd, v. Amusement Caterers (Peckam) Ltd. 1963 3 AH ER
493; and to another one in connection with aiding and abetting, or the situation or
directors, Filiot v. Kinger (1967) 3 All ER 141. I cannot find anything in these cases
which justifies the conclusion that, in a case like this, there can be any conceivable
question of charging either the mother or the son with contempt of court."
Therein learned Judge made a further relevant observation.
"Counsel for the council has fought doughtily, wielding general propositions based on
six lines in the Salkeld report (In Butler's case 1696-2 Salk 596) that if anybody does
anything which tends to deprive a plaintiff of the fruits of an order, they are in
contempt of court. All I can say is, I cannot see it at all. It will be observed, as 1
ventured to observe in the course of the hearing, that what arc the fruits of the order
depends on the order. They may be desert apples or they may he crab apples; and
here the only undertaking the council got out of the father was that he would take
some steps which by themselves, if other people did not do something voluntarily to
aid him, would not achieve the ultimate aim that the council were looking for; that is
to say, to get all this land totally deregistered. But the trunk of the fruit tree was a
weak one, although it seeks to have been rather stranger than in law the council were
entitled to obtain against the father."
33. In the case of Northern Counties Securities v. Jackson & Steeple (1974) 2 All ER 625, a judgment
of the Chancery Division, Walt on J. delivered adjustment in a case in which a certain undertaking to
use best endeavours to obtain quotation for and permission to deal in shares and issue the same on
behalf of the company, was an issue, but shareholders were charged for contempt. Learned Judge
noticed the arguments.
"Counsel for the plaintiffs argued that, in effect, there are two separate sets of persons
in whom authority to activate the company itself resides. Quoting the well-known
passages from Lord Haldane in Lenard's Carrying Co Ltd. v. Asiatic Petroleum Co
Ltd. 1914 All ER Rep 280 he submitted that the company as such was only a juristic
figment of the imagination, lacking both a body to be kicked and a soul to be damned.
From this it followed that there must be some one or more human persons who did, as
a matter of fact, act on behalf of the company, and whose acts therefore must, for all
practical purposes, be the acts of the company itself. The first of such bodies was
clearly the body of the directors, to whom under must forms of articles (see art 80 of
Table A, or art 86 of the defendant company's articles which is in similar form) the
management of the business of the company is expressly delegated. Therefore, their
acts are the company's acts; and if they do not, in the present instance, cause the
company to company with the undertakings given by it to the court, they are
themselves liable for contempt of court. And this, he says, is well recognised : See
RSC Ord 45, R. 5(1), where under disobedience by a corporation to an injunction may
result directly in the issue of a writ of sequestration against any director thereof. It is
of course clear that for this purpose there is no distinction between an undertaking and
an injunction (see the Supreme Court Practice 1973) Vol. 1 P. 685.
This is, indeed, all well established law, with which counsel for the directors did not
quarrel and indeed I think his first proposition asserted. But, continues counsel for the
plaintiffs, this is only half of the story. There are some matters in relation to which the
directors are not competent to act on behalf of the company, the relevant authority
being 'the company in general meeting', that is to say, a meeting of the members.
Thus in respect of all matters within the competence -- at any rate those within the
exclusive competence of a meeting of the members, the acts of the members are the
acts of the company, in precisely the same way as the acts of the directors are the
acts of the company. Frgo, for any shareholder to vote against a resolution to issue the
shares here in question to the plaintiffs would be a contempt of court, as it would be a
step taken by him knowingly which would prevent the company from fulfilling its
undertaking to the court. Counsel for the plaintiffs admitted that he could find to
authority which directly assisted his argument, but equally confidently asserted that
there was no authority which precluded it.
Counsel for the directors indicted the argument of counsel for the plaintiffs as being
based on a nominalistic salary His precise proposition was formulated as follows:
"Whilst directors have special responsibilities as executive agents of the company to
ensure that the company does not commit a contempt of court, a shareholder when
the position has been put before them generally who chooses to vote against such
approval will not himself be in contempt of Court.
Putting this into less formal language, what counsel for the directors submitted was
that although it is perfectly true that the act of the members in passing certain special
type of resolutions binds the company, their acts are not the acts of the company.
There would, he submitted, be no real doubt about this were it not for the use of the
curious expression 'the company in general meeting' Which, in a sense, drags in the
name of the company unnecessarily. What that premise really means, he submitted, is
the member (or corporators) of the company assembled in a general meeting', and
that if the phrase is written out in fall in this manner it becomes quite clear that the
decisions taken as such a meeting, and the resolutions passed threat are decisions
taken by, and resolution passed by the members of the company, and not the
company itself. They are therefore in the position of strangers to the order and not in
contempt by their act in voting as they please, whatever its effect may be."
Having so put the contentions, the learned Judge said.
"In my judgment, these submissions of counsel for the directors are correct. I think
that in a nut shell the distinction is this. When a director votes as a director for or
against any particular resolution in a directors' meeting, he is voting as a person under
a fiduciary duty to the company for the proposition that the company should take a
certain course of action. When a shareholder is voting for or against a particular
resolution he is voting as a person owing no fiduciary duty to the company who is
exercising his own right of properly to vote as he thinks fit. The fact that the result of
the voting at the meeting (or a subsequent poll) will bind the company cannot affect
the position that in voting he is voting simply as an exercise of his own property rights.
Perhaps another (and simpler) way of putting the matter is that a director is an agent,
who casts his vote to decide in what manner his principal shall act through the
collective agency of the board of directors; a shareholder who casts his votes in
general meeting is not casting it as an agent of the company in any shape or form. His
act, therefore, in voting as he pleases cannot in any way be regarded as an act of the
company".
Having so stated the law, the learned Judge treated the shareholders, who acted in the
face of the given undertaking, as third parties, unless found aiding and abetting could
not be charged for contempt. In this case, the learned Judge accepted the proposition
as a general statement of law that where a court makes an order directing a party to
an action to observe or do some act, this does not impose an obligation on someone
who is not a party to the action to do anything, but observed,
"If applied to the directors of the company subject to such an order of the court it is
misleading. The directors, although not in express terms parties to the action, do come
under an obligation to procure that the company acts in conformity with the order of
the court, for the simple reason that if they did not there would never by any effective
remedy of this nature against a company..... I have no doubt that where conditional
contract is entered into-conditional, for example, on the shareholders approving an
increase in the capital of the company there is, in general, no duty on the company to
procure the fulfilment of the condition....."
There is yet another observation in the judgment, "It would, of course, be otherwise if
one could envisage any circumstances in which an order was made by the courts on a
company to do something, for example to increase its capital (as distinct from using its
best endeavours to increase its capital), which must of necessity involve the
shareholders voting in a particular manner. But I at any rate cannot envisage any
ordinary situation (as distinct from for example, situation where all the shareholders
were before the court and bound by the order) where such an order would ever be
made."
In other words, Walton, J treated the undertaking on behalf of the company to be one
depending upon the precise condition and the precise construction of the nature of the
order and undertaking and the conditions of contract under which the directors of the
company functioned, but found it rather difficult to anticipate a situation in which any
order could be passed in the absence of the shareholders as party to the proceeding to
bind them.
34. In Z Ltd. v. A (1982) 1 All ER 556 Lord Denning read 3 judgment on behalf of the Court of Appeal
adopting a device as parties in the case were cancelled by the letters of the alphabet, and stated the
guidelines on the issue of assets under a special direction called mareva injunction effecting bank
accounts and other assets and observed,
"Once granted, a Mareva injunction has immediate effect on every asset of the defendant
covered by the injunction, because it is a method of attachment, which operates in rem in the
same manner as the arrest of a ship and because any authority which third parties may have
to deal with the asset in accordance with the instructions of the defendant is revoked once
such third parties have notice of the injunction."
35. The case of Attorney General v. Newspaper Publishing PLC, (1987) 3 WLR 942 is a judgment of
the Court of Appeal of England which states the legal position and development of law with regard to
violation of an order of injunction and contempt, Three judges constituting the bench Sir John
Donaldson, M. R. Lolyd and Balcombe L. JJ. delivered their separate judgments and answered
questions which appear to be relevant for this case. They recorded opinion in an appeal by the
Attorney-General against the decision of Sir Nicolas Browne-Wilkinson V. C., on a point of law,
"Whether a publication made in the knowledge of an outstanding injunction against another
party, and which if made by that other party would be in breach thereof, constitutes a criminal
contempt of court upon the fooling that it assaults or interferes with the process of justice in
relation to the said injunction."
In the first judgment, it is said,
"I now return to the judgment of Sir Nicolas Browne-Wilkinson V.C. "(a) In no case (apart
from Smith-Barry v. Dawson, the Irish case) has a third party, C., been held to be in contempt
of an order restraining a named person, B from doing an act unless C has been privy or party
to the doing of an act which is a breach of precise terms of the order."
If Smith-Barry v. Dawson ,(1891) 27 LR 558 is accurately reported, there was some confusion
between the species of contempt which consists of disobeying, or assisting in the disobedience of an
order of the court and that which consists of interfering with the due administration of justice, and
this may have stemmed from the fact that no argument was addressed on behalf of the alleged
contemnors. Mr. Smith Barry had been declared by a final judgment, to which the alleged contemnors
were not parties, to be entitled to possession and to quiet enjoyment of his patent rights to hold a
market in the Fair Green. The alleged contemnors had held a rival market in the Fair Green with
knowledge of that decision and of the fact that an injunction had been granted against the defendant
in the action prohibiting him from holding such a market. Hedges E. Chatterton said, at pp. 559-560
that the alleged contemnors were;
"In my opinion, in just the same default as the original defendants would have been if they
had done similar acts. (But) the cases cited clearly establish the right to have these
attachments issued, and nothing can be more in point than the Killiney Foreshore case
(unreported). But even without any of these authorities, ordinary commonsense would show
that persons cannot be allowed to set at defiance the order of the court because they do not
happen to be named in the injunction."
If in an action between A and B for the possession of a dwelling house, B is ordered to give up
possession and to refrain from retaking possession, As remedy, if someone, C, subsequently tries to
dispossess him, is an action against C, not proceedings for contempt of court in disobeying an order
to which C was never a party and in the breach of which he was not assisting. So long as the full
importance of Sir Nicolas Browne-Wilkins on V.C.'s words "contempt of an order" are appreciated, I
consider that this represents the law. The Attorney-General does not allege that the defendants are
up contempt of the orders made in the Guardian and Observer actions or assisted in doing an act
which is a "breach of the precise terms of the order," i.e. terms which restrained conduct by the
Guardian and the Observer, their servants, agents, etc. He claims that, given the fact that these
orders had been made with a view to preserving the subject matter of the dispute, destruction of that
subject matter is an interference with the due administration of justice and so a contempt of court.
"(b) Under English law an injunction can only properly restrain a party to the proceedings from
doing an act, although it may restrain him from doing the act 'by himself, his servant or
agent.'"
This appears to be a wholly correct statement of the law (Marengo v. Daily Sketch and Sunday
Graphic Ltd.,) (1948) 1 All ER 406 hut it is capable of being misleading. The form of order now
usually adopted which enjoins the defendant "by himself, his servant or agent" does not enjoin the
servants or agents at all. All that the additional words do is to serve as a warning to such servants
and agents that they should not assist in the doing of the prohibited act. If they do so, they will not
have disobeyed the order, but they will have interfered with the due administration of justice and
may be liable to be proceeded against on that account.
That this is the position is made even clearer by the two motions Lord Wellesley v. Earl
of Morning ton (1848) 11 Beav. 180 and Lord Wellesaley v. Earl of Morning ton (No.
2) (1848) 11 Beav, 181. There the injunction Order omitted any reference to servants
or agents. Lord Langdale M. R. dismissed the first motion to commit Mr. Batley, the
Earl's land agent, who had cut down some trees which the Earl had been forbidden to
cut. He did so because the motion was based upon an allegation that Mr. Batley had
acted in breach of the order. As Lord Langdale M. R. pointed out, the order was not
addressed to Mr. Batley and he was not enjoined thereby. However, the second motion
accused Mr. Batley not of breaching the order, but of knowingly assisting in a breach
of the order and thereby obstructing the process of the court. As Lord Langdale M. R.
put it at p. 183:
"If the matter had been pressed, I should have found it my duty to commit Mr.
Bailey for his contempt in intermeddling with these matters....."
(c) As a result of (a) and (b) above, there is no English case in which a third party, C,
has been held in contempt for doing any act which does not constitute a breach by the
defendant enjoined, B, of the precise terms of the Orders."
I am not sure whether this adds anything to (a) and (b). Whilst it certainly records that no one has
been able to find a reported decision involving a finding of contempt by C, where the act complained
of was intimately related to an order against B but did not involve assisting in doing that precise act, I
am not sure of its significance, save that it underlines the fact that this is a novel situation. There is
at least one case in the books which, if C had acted differently, would have raised the point. This is
Galaxia Maritime S.A. v. Mineral import -- export (1982) 1 W.L.R. 539, where A obtained a Mareva
injunction against B ordering B not to remove his assets from the jurisdiction including, in particular,
cargo loaded on C's ship. C. for his own purposes --he wished to have the use of his ship and to allow
the crew to get home for Christmas - -and regardless of the wishes of B wished to remove his ship
from the jurisdiction with or without the cargo. Applied successfully for the injunction to be
discharged and seems, to have assumed, as the court also assumed, that absent permission from the
Court or the discharge of the injunction, the ship could not sail. I think that C was right, but had the
ship sailed with the cargo, it certainly could not have been said that he was in breach of the precise
terms of the order which prohibited B exporting the cargo and still less that B would have been in
breach.
"(d) The plaintiff in the proceedings, A, an apply for the committal of C even though the act of
C is a criminal contempt,"
This is an historical anomaly arising out of the classification of contempts as civil and criminal. If
instead, they are classified as contempts involving (a) disobedience or assisting in the disobedience of
orders and (b) other conduct interfering with the administration of Justice, there is no problem. A can
apply in category (a) and the Attorney-General can apply in category (b). In any event it appears to
cast no light upon what has to be decided in this appeal.
"(e) The principle underlying the law that C is in criminal contempt if he is party to a breach of
the Order is that the court will not allow its order to be knowingly flouted, thwarted or
frustrated by any person even though he be a stranger to the action."
This is quite correct but, I think, nihil ad rem. The three newspapers were not parties to breaches of
the actual orders in the Guardian and Observer actions which prohibited publication by those
newspapers. In publishing as they did, they were intending to serve their own interests or their view
of the public interest and certainly not the interests of the Guardian and Observer.
Based on these propositions of law, Sir Nicolas Browne-Wilkinson V.C. said that it seemed to him that
the Attorney-General was seeking to widen the application of the law of criminal contempt, albeit in
accordance with established principle. This I am unable to accept. The law of contempt is based upon
the broadest of principles, namely, that the courts cannot and will not permit interference with the
due administration of justice. Its application is universal. The fact that it is applied in novel
circumstances, for example to the punishment of a witness after he had given evidence (Attorney-
General v. Butterworth, 1963) 1 QB 696, is not a case of widening its application. It is merely a new
example of its application. In that case, as here, the trial judge, Nocatta, J., relied upon the fact that
there was no such case in the books, but the court held that that was a distinction of fact, not
principle; per Donovan, L..I. at pp. 724-725.
Next, and this is really the final stage in his reasoning a part from the practical considerations with
which I must deal hereafter, Sir Nocolas Browne-Wilkinson V. C., said, anti, p. 955 F-F;
"the question which I have to decide whether, due to the chance that there is in existence an
order of the court preventing the Guardian and the Observer from publishing, the appropriate
sanction is contempt of court."
At the risk of appearing to be a carping critic and I repeat my tribute to the clarity of his Judgment --
I think that the Vice-Chancellore misdirected himself in thus formulating the question. Contempt of
court is not a sanction. Contempt of court is lawful conduct, the sanction for which is imprisonment,
attachment, a fine or an order to pay costs. So the question should at least be rephrased to read:
"Whether, due to the chance that there is in existence an order of the court preventing the
Guardian and the Observer from publishing, the conduct of 'The Independent'. 'The London
Evening Standard' and 'The London Daily News' was unlawful as constituting an interference
with the due administration of justice."
But even this is not correct. "Chance" is not the right word. The existence of the restraining orders
against the Guardian and the Observer was a fact. It was only a chance in the sense of being what I
believe is known across the Atlantic as a "happenstance" - a past circumstance which was not created
by any of the principal actors. So I would substitute "fact", for "chance", whilst at the same time
appreciating that I have to consider whether it is a very material fact, one which made any real
difference.
This brings me to the very interesting and, as 1 think, crucial decision is In re X (A Minor) (Wardship :
Injunction) (1984) I WLR 1422. There Balcombe, J. made an order prohibiting publication of
information about the word by the "News of the World", which was a party, and any other person who
should have notice of the order. It was effective in fact and I am wholly satisfied that it was also
effective in law. What is interesting is why it was effective in law.
personam.
As Sir Nicols as Browne-Wilkinson V.C. pointed out, English civil courts not in
personam. They adjudicate disputes between the parties to an action and make orders
against those parties only. This is true even in proceedings under R.S.C. Ord. 113,
which permits proceedings against "Persons unknown." They become parties. What is
not permissible is to make an order against a stranger to the action. In Ivason v.
Harris, (1802) 7 Vas. Jum. 251 Lord Eldon L.C. said:
"I have no conception, that it is competent to this court to hold a man bound by an injunction,
who is not a party in the cause for the purpose of the cause."
Yet that is what Balcombe, J. purported to do. To say that the jurisdiction of the court
in ward ship involves a peculiar parental or administrative responsibility to which the
disposal of controverted questions is only incidental is no explanation. This only means
that this jurisdiction is unusual in the extent to which it involves extended judicial
supervision throughout the ward ship ,which may last for years.
I sympathies with the position in which Bal combed ,J. found himself. The proper
discharge of the ward ship by the court in the exercise of the ancient duties of parents
partial made it essential that there should be no publication and he had to find a way
of achieving this result. But had any newspaper, other than the "News of the world",
published details of the ward and had the Attorney-General sought to commit it or its
editor for contempt consisting of disobedience of the order, the motion would have
been dismissed, it would have been a reply of Lord Wellesley v. Earl of Morning ton
,(1848) 11 Boav. 180, which would have been indistinguishable. The fact that the
order was addressed to the alleged contemnor would rightly have been disregarded as
done without jurisdiction. But if the Attorney-General had moved instead upon the
ground that the publication interfered with the administration of justice (Lord Wellesley
v. Earl of Morning ton (No. 2), (1848) 11 Beav. 181), he would have succeeded and
the fact that publication had taken place notwithstanding the warning conveyed by the
form of the order would have been an aggravating circumstance."
36. Lloyd, L.J., in his separate judgment agreed with the proposition that in no case other than the
Irish case of Smith-Barry v. Dawson, (1891) 27 LR 558, has as third party, not subject to the Order
of the court, been held liable for contempt for doing an act which is prohibited except by aiding the
person enjoined, and the proposition that while it is open to the court to extend the law, nevertheless
the court should be wary of doing so, since the liberty of the subject is involved, but made his
independent comments upon whether to apply the law of contempt to a person who is not a party to
the order in question would not only widen the application of the law, but also infringe a fundamental
principle that the courts do not make orders against all the world and said that the court acts in
personam. Accordingly its orders only operate in personam, never in rem and to hold that a person
who is not party to the order and not party to the breach of the order as aider and abetter may
nevertheless be liable for contempt on the ground that he has contravened or frustrated the spirit of
the order will not be proper. Referring to Sweaward v. Paterson 1897 1 Ch 545and other cases,
learned Judge held,
. . .
"Although there are dicta in Sweaward v. Paterson, (1897) 1 Ch. 545 and Lord Wellesley v.
Earl of Morning ton ,11 Beav. 180 which may be said to support a wider principle, I regard
those cases and having decided, and decided only that a person may be liable in contempt if,
with knowledge of the order, the aids and abets a breach of the order by the person enjoined.
The same is true of Z Ltd. v. A-Z and AA-LL, (1982) QB 558. It was held in that case that the
bank would be liable for contempt if, with knowledge of the Mareva injunction, it enabled its
customer to act in breach of the terms of the injunction, even though the injunction had not
been served on the customer. The customer could not, of course, be liable in contempt himself
until notice of the injunction had been properly served. But he could breach the injunction as
soon as it was granted, and the bank could therefore be liable in contempt for aiding and
abetting that breach....I would only add, before leaving the cases, that it would be an
improvement of this branch of the law if aiding and abetting a breach of a court order were re-
classified as a civil contempt rather than a criminal contempt. The best course would no doubt
be to abolish what remains of the distinction altogether, in accordance with the
recommendation of the Phillimore Committee, Report of the Committee on Contempt of Court
(Crand. 5794). But if the distinction is to remain, it does not make sense that a stranger to
the order, who aids and abets a breach, should be criminally liable while the person to whom
the order is directed and who himself commits a breach should only he liable for civil
contempt. That is the sort of nonsense which does no credit to the law, as was pointed out
forcibly enough by Lord Atkinson nearly 75 years ago in Scott, (1913) AC4I7".
Coming to the third step to apply the law of contempt to a person who is not a party to the order in
question he said,
"It is when he comes to the third step in his reasoning that I begin with great respect,
to part company from Sir Nicolas Browne-Wilkinson V.C.I accept ,of course, that it is a
fundamental Principle with certain very limited exception, of which the best established
is ward ship ,that our courts act in personam. As Lord Eldon L.C. said in Iverson v.
Harris, (1802) 7 Ves. Jun. 251, :
"I have no conception, that it is competent to this court to hold a man bound by an injunction,
who is not a party in the cause for the purpose of the cause".
That dictum was repeated with approval by Lord Uthwatt in Marengo v. Daily Sketch
and Sunday Graphic Ltd., (1948) All ER 406, ; see also, Brydges v. Brydges and
Wood (1909) P 187, .
But the question here is not whether a third party is bound by the injunction, but
whether he can be liable for contempt even though he is not bound by the injunction.
He cannot be liable in contempt for breach of an order to which he is not a party; nor,
on the facts of the present case, could the respondents be liable for aiding and
abetting a breach. But it does not follow that they may not be liable for interfering with
the course of justice. Thus, to take a wholly improbable example in order to illustrate
the point; suppose a party to certain proceedings assaults or abuses the judge;
suppose the judge make an order against him in the proceedings prohibiting him from
repeating his abusive conduct. If a stranger comes to court and abuses the judge in
like manner, it will surely not be a defence to a charge of contempt that he was not a
party to the order. His conduct amounts to a contempt of court independently of any
order made in the proceedings. Nor would holding such a man liable for contempt
create any undesirable uncertainty or injustice. He is assumed to know that abusing
the judge is a contempt of court. Ignorance of the law will afford him no more excuse
in this than in any other branch of the criminal law.
It may be said that abusing the judge is an obvious contempt, whereas interfering with
the course of justice, in particular proceedings is much less precise. This is true,
Moreover I would accept that not all acts which are calculated to interfere with the
course of justice will necessarily ground a charge of contempt. The act must be
sufficiently serious and sufficiently closely connected with the particular proceedings.
But in the present case the conduct relied on by the Attorney-General is not marginal.
It is not a mere prejudging of the issue to be decided in the particular proceedings. It
is not a mere usurpation of the court's function. It is the destruction, in whole or in
part, of the subject matter of the action itself. The central issue in the Guardian action
is whether "The Guardian" should be restrained from publishing confidential
information attributable to Mr. Wright. Once the information has been published by
another newspaper, the confidentiality evaporates. The point of the action is gone. It is
difficult to imagine a more obvious and more serious interference with the course of
justice than to destroy the thing in dispute".
37. Balcombe L.J., in his judgment has also accepted that a third party may be charged for criminal
contempt but not civil contempt and stated his opinion in these words,
"Although I hope I have made it clear in the earlier part of this judgment that the
reason why I consider that the publications of the respondents are capable of
constituting criminal contempt of court is because they interfered with the
administration of justice and not because they disobeyed orders made in the
Guardian/Observer actions which were not addressed to them, I am conscious that this
conclusion is reached by a sophisticated argument which may not be readily appearing
to the layman. It seems to me that it would be preferable, in an appropriate case,
where it is apparent that the subject matter of an action e.g. confidential information
or a secret process) could be destroyed by its publication by any person, whether a
party to the action or not, for the court to make its initial protective order in terms
which make it clear to third parties that they, too, must not destroy that subject
matter. The question is whether the court has power, in an appropriate case, directly
to order third parties not to destroy the subject matter of the action. The general
principal was stated by farewell LJ. in Brydges v. Brydges and Wood (1909) P. 187, :
"But the court has no jurisdiction, inherent or otherwise, over any person other than those
properly brought before it as parties or as persons treated as if they were parties under
statutory jurisdiction e.g. person served with notice of an administration decree or in the same
interest with a defendant appointed to represent them), or persons coming in and submitting
to the jurisdiction of their own free will, to the extent to which they so submit e.g. creditors of
a bankrupt executor, who has carried on business under a power in the will, coming in to
claim against the testator's estate in order to obtain subrogation to the executor's right of
indemnity). But the courts have no jurisdiction to make orders against persons not so before
them merely because an order made, or to be made, any or will be ineffectual without it. Even
in the case of an injunction Lord Eldon says in Inveson v. Harris, (1802) 7 Vcs. Jun. 251,: I
have no conception, that it is competent to this court to hold a man bound by an injunction,
who is not a party in the cause for f he purpose of the cause. The old practice was that he
must be brought into court, so as according to the ancient laws and usages of the country to
be made a subject matter of the writ".
See also Ranson v. Platt, (1911) 2 KB 291 and Marango v. Daily Sketch and Sunday
Graphic Ltd. (1948) 1 All ER 406. The last case, being a decision of the House of Lords,
is clearly binding on this court, unless there is any relevant exception to the general
rule. That there is at least one exception appears from a case of my own at first
instance, In re X (A Minor)( Ward ship :Injunction) (1984) 1 WLR 1422. In that case I
held that, in the exercise of the ward ship jurisdiction, there was power to make an
order (prohibiting the publication of information about the ward) binding on the world
at large, when persons who were potentially subject to that order had not been parties
to the proceedings in which the order was obtained, with all respect to Sir John
Donaldson M.R., that was the ratio of decision, and I still believe it to have been
correct. It is true that I then said that I was satisfied that, if it were not an exercise of
the parental jurisdiction in ward ship ,there would be no such power, but the question
whether there might be other exceptions to the general rule was not then before me. I
believe that there can be another exception to the general rule which would enable the
court to make an order, binding on the world at large, in the circumstances of the
present case, where such an order may be appropriate to preserve the subject matter
of an action pending trial. The law of contempt is but one example of the court's ability
to regulate its own procedure so as to ensure that justice prevails. The rule that courts
normally act only in personam is but another example of the same process. If the
court needs to ensure that the subject matter of an existing action be preserved
against all comers pending the trial of the action, then in my judgment the court can
obtain the desired result by introducing another exception to the general rule that the
court acts only in personam. I can find nothing in the cases to which I have referred,
in which the general rule is stated, to say that the rule is wholly without exception, and
it is not without significance that the Canadian courts have felt themselves able to
make such orders".
38. Courts in United Kingdom, it appears, understand the distinction between civil contempt and
criminal contempt as we understand in India and accept a broad classification, which has been
recognised by our Courts as well as the Contempt of Courts Act, 1971. But their thinking has since
developed and they appear to approach the problem with a reclassification as (a) a conduct which
involves a breach, or assisting in the breach of a Court order and (b) any other conduct which
involves an interference with the due administration of justice, either in a particular case, or more
generally, as a continuing process, the first category being a special form of the latter, such
interference being a characteristic common to all contempts. The distinction between the two
categories is that in general conduct which involves a breach, or assisting in the breach, of a court
order is treated as a matter for the parties to raise by complaint to the court, whereas other forms of
contempt are in general considered to be a matter for the Attorney Advocate General to raise. In
doing so, he acts not as a government minister or legal adviser, but as the guardian of the public
interest in the due administration of justice, In the case of the former, the Courts do not only intend
to punish in the form of committal, attachment or fine, but also strike out all or part of a claim or
refuse to entertain the whole or part of a defence. Courts in United Kingdom also maintain that an
injunction can only restrain a part of a proceeding from doing an act although it may restrain him
from doing the act from himself or his servants or agents and a third party is not held to be in
contempt of an order restraining a named person except that person, who aids and abets the
commission of the breach. Rarely, any exception was made like in the case of Mareva injunction.
They however took notice of the violation at the hands of the third party as a conduct interfering with
the administration of justice and treated it as a criminal contempt. As noticed in the citations above,
the law of contempt in United Kingdom is based upon the broadest of the principle viz., that the
Courts cannot and will not permit the interference with the due administration of justice. Its
application is universal and it is applied in novel circumstances, Facts of a given case alone justify
new example of committal action. In the ward ship injunction afore referred to, one such exception
had been made. We find that the above rules has been confined to United Kingdom but it has been
extended by the Canadian Courts also, at least once stated by the Viscount Haldane L.C. in SCOTT v.
SCOTT, (1913) AC 417, 437, "white the broad principle is that the Courts of this country must, as
between the parties, administer justice in public, this Principle is subject to apparent exceptions, such
as these to which I have referred to. But the exceptions are themselves the outcome of a yet more
fundamental principle that the chief object of courts of justice must be to secure that justice is one.
In the two cases of wards of court and of lunatice, the court is really sitting primarily to guard the
interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative and
disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in
order to attain its primary object, that the court should exclude the public. The broad principle which
ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the
lunatic. The other case referred to, that of litigation as to a secret process, where the effect of
publicity would be to destroy the subject matter, illustrates a class which stands on a different
footing. There it may well be that justice could not be done at all if it had to be done in public. As the
paramount object must always be to do justice, the general rule as to publicity, after all only the
means to an end must accordingly yield. But the burden lies on those seeking to displace its
application in the particular case to make out that the ordinary rule must be as of necessity
superseded by this paramount consideration. The question is by no means one which, consistently
with the spirit of our jurisprudence, can be dealt with by the Judge as resting in his mere discretion as
to what is expedient. The latter must trust it as one of principle, and as turning, not on convenience,
but on necessity."
39. In the case of S. N. Bannerjee v. Kuchwar Lime and Stone Company Ltd. MANU/PR/0060/1938 ,
the Privy Council in an appeal from a decision of the High Court, Patna applied the rule of law as
stated in Seaward v. Paterson 1897 1 Ch 545 (supra) and stated.
"The respondents, however, contended that even if the Secretary of State was not
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.
Andirews, (1882) 51 U Ch 414 and Seaward v. Pa'terson, (1897) 1 Ch. 545. 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 in the cases referred to nor do they think it is sound in
principle."
40. A Special Bench of the Patna High Court in Pratap Udal Nath v. Sara Lal, MANU/BH/0211/1948
: AIR1949Pat39 considered a case of disobedience of an injunction decree and held that equity acts
in personam and reiterated the aforementioned law in Seaward v. Paterson 1897 1 Ch 545 in these
words,
"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. None of the
opposite parties in present case were defendants in the suit or named in the decree.
Mr. B. C. De, for the petitioner seeks to overcome this difficulty upon the principle laid
down in Avery v. Andrews, (1882) 51 U Ch 414 : 46 LT 279 and Seawards v.
Paterson, (1897) 1 Ch 545 : & 6 LJ Ch 267 to the effect that persons not party to the
injunction may be proceeded against for contempt for aiding and abetting the breach.
There can be, however, no question of aiding and abetting where there is no principal
offender. There is no one whom the opposite party can be said to have aided and
abetted. The principle, in my opinion, is not therefore applicable; and it seems to me
that the decision of the Privy Council in the case of S. N. Banerji v. Kuchwar Lime &
Stone Co. Ltd. MANU/PR/0060/1938 is conclusive upon that point."
41. In P. K. Kripalani v. Mahabir Ram Saha MANU/WB/0189/1951 : AIR1952Cal452 , where a sub-
tenant resisted the execution of the order, a Division Bench of the Calcutta High Court said that
committal for contempt is a serious matter and the jurisdiction must be exercised with scrupulous
care only in a case which is clear and beyond reason doubt. Such an order should never be made if
the case is doubtful. It is for the petitions :making for the committal of another for contempt to
justify clearly that the order should be passed. If he fails to do so, no order should be made. Bench
also said that a person bona fide claiming to be rightfully in possession of property, is entitled in law
to resist a court officer from ousting him in execution of an order of Court passed in a proceeding to
which he was not a party. The Court held, (at p. 453 of AIR).
"The rule clearly is that the wilful disobedience to an order of a court requiring a
person to do an act, other than the payment of money is a contempt : Halsbury's Laws
of England (2nd Ed.) Vol. VII p. 30 Art. 42. But that rule does not, in our view, help
the petitioner in the present case, and this for two reasons. First, in order that the rule
may apply there must be an order on a person to do an act and in this case there is no
such order. All that the order of Rexburg ,J. does is to direct the bailiff to deliver
possession : it does not direct any other person to do any act. There is no question
here, therefore, of any person disobeying an order, unless it is the bailiff. The case of
Iberian Trust Ltd. v. Founders Trust & Investment Co. Ltd., (1932) LR 2 KB 87, may be
usefully compared with the case in hand. That was also a case of contempt for not
carrying out an order of the court and it failed on the ground that there was no order
on the defendant, the alleged contemnor.
Luxmoore, J. Said:
Now, turning back to Rowlatt, J.'s order, what is it that the defendant company have
been ordered to do which the company and its directors have failed to do? In terms,
the order does not direct the defendant company to do anything, it says: "that the
plaintiffs to have a return of the said shares within fourteen days". Am I to spell out of
that an order on the defendant company to do something ? I think not. if the Court is
to punish any one for not carrying out its order the order must in unambiguous terms
direct what is to be done.
Secondly, the opposite party No. 2 being no party to the proceedings resulting in the
order of Roxburgh, J., that order could not have directed him to do anything. As Lord
Eldon pointed out in Ivcson v. Harris, (1802) 7 Ves. 251, it was not competent to the
Court, "to hold a man bound by an injunction, who is not a party "in the cause for the
purpose of the cause." See also S. N. Bannerjee v. Kuchwar Lime & Stone Co. Ltd.
MANU/PR/0060/1938 . The order of Roxburgh, J. not being therefore an order on the
opposite party No. 2 there is no question of his disobeying that order or committing
contempt by any disobedience thereof. It may be that if the opposite party No. 2 is a
tenant of opposite party No. 1, as he claims to be, the order may have been binding
on him in certain circumstances under R.35 of O. 21 of the Code of Civil Procedure, as
was held in Yusuf v. Jyotish Chandra Banerji MANU/WB/0079/1931 : AIR1932Cal241 .
But this would not make the Order an Order on the opposite party No. 2 for the order
is binding on him only in the sense that it may have been executed by removing him
from possession notwithstanding that he was no party to the proceeding in which the
order was made. This therefore is not a case in which the opposite party No. 2 can be
said to have committed contempt by disobeying an order of Court."
The Calcutta Court thereafter posed a question, can it then be said that the opposite party No. 2 is
guilty of contempt by obstructing the course of justice and setting the process of the Court at naught
? and answered MANU/WB/0189/1951 : AIR1952Cal452 .
"If he did so he would undoubtedly be guilty of contempt and this although he was no
party to any proceeding in court which was obstructed thereby; Cooper, v.
Asprey, (1864) 3 B &S 932. It is contended on his behalf that he cannot be said to
have done that in this case as no interference with the process of the Court.
Possession was retaken from the petitioner after it had been delivered to him by the
plaintiff, after, as it was put, the force of the order had expired and therefore there
was in this case in any event, no obstruction to the course of justice whatever other
offence or civil wrong the retaking might have amounted to. On that facts of the
present case it does not seem to us that the argument is tenable. What happened was
that the opposite party No. 2 was present all along when the plaintiff was delivering
possession to the petitioner and he offered no resistance then nor attempted to retake
possession till the bailiff had turned his back. It is quite obvious that the opposite party
No, 2 only lay by so as to mislead the bailiff into believing that there was no opposition
to possession being delivered to the petitioner. The retaking of possession followed so
soon after the delivery of possession as in reality and substance to amount to being
part of the delivery of possession and therefore to obstructing the bailiff in carrying out
the order. A person who retakes possession of land from a party who had recently
obtained possession of it by a writ has been held to be guilty of contempt ; Oswald on
Contempt (34d Ed. p. 88, relying on In re Higg's Mortigage, Goddard v. Higg, 1894 WN
73. Again in Lacon v. De Grost, 1893 10 TLR 24 it appears that the Sheriff had been
able, after much trouble, to execute a writ it and deliver possession of certain
premises to the party entitled to possession under an order of court, but immediately
after the Sheriff had gone away, the defendant and his men retook possession with the
help of a riotous mob from the party to whom possession had been delivered by the
Sheriff and they were held liable in contempt. Learned counsel for the contemnors had
argued that "the writ in fact had been executed, and so there "was no ground for a
proceeding for contempt". Baron Pollock said, in his judgment in this case.
In case like this, where judgment had been given that the plaintiff shall recover
possession of premises and a writ has been issued to the Sheriff to deliver possession;
if the officer has been apparently put in possession and the dependent chooses at
some later time to change his mind and come back to the premises and by craft or
force to again obtain possession, it was right that an attachment should be issued
against him on the ground that he had not really given up possession. Whenever, the
writ being put in force, the defendant or anybody who assists him does not fully and
honestly give up possession, but only colorable does so, the Judge applied to may and
ought to find that the process of the court had not been obeyed, and that there had
been contempt of court. In the present case the practical test was this; if the Sheriff's
officer had known what was intended he certainly would not have left the premises.
We are clearly of the opinion that in this case also, if the bailiff had suspected the
intention of the opposite party No. 2, he would not have left when he actually did. The
act of this opposite party, therefore, was as if he had in reality ousted the bailiff from
possession. Prima facie it would therefore appear that he was guilty of contempt. It
makes no difference that he was no party to the action, for a stranger has no more
right than a party, wilfully and wrongfully to oust the court's officer from possession or
prevent him from carrying out the Court's order."
42. A Division Bench of the Orissa High Court in Santosh v. Birachandra MANU/OR/0086/1965 :
AIR1965Ori222 also reiterated the same view saying that the offence of contempt committed by
disobedience to order of injunction by a person not a party to the injunction is limited to case a where
he aids and abets the party enjoined in the breach and on the facts of the case, held (Para 10):
"Admittedly, the appellant Sarpanch was not a party to the order of injunction passed
by the Subordinate Judge on April 8, 1962 in Miscellaneous Case No. 33 of 1962 in
Connection with the arbitration case against the Union of India and the State of Orissa,
who alone were parties in the said proceedings. The question is can it be said that the
appellant Sarpanch had in any way aided or abetted the persons so inhibited in
breaking the injunction? Our answer is 'No'. The name of the appellant Sarpanch was
not mentioned in the order of injunction. In view of the position that the injunction was
issued by the Court against the Union of India and the State of Orissa alone in respect
of the plots in dispute and further that the injunction order made no mention of their
servants and agents, the appellant Sarpanch cannot be found guilty for disobeying the
injunction."
43. One of the earlier judgments of the Calcutta High Court in Kailas Chandra v. Sadar Munsif, Silchar
MANU/WB/0367/1924 : AIR1925Cal817 , considered a case of an injunction with respect to a
meeting of a company, which had been announced to take place on a certain day. Previous to that
day, a suit was instituted for declaring that the petitioner and certain other persons are not
competent to act as shareholders. A temporary injunction was asked for restraining the defendants
from acting as shareholders of the company. The Court passed an injunction not restraining the
shareholders in question from voting at the meeting, but restraining the company from holding a
meeting until further orders. The order was not served on the petition. On the day of the meeting,
some of the shareholder including the petitioner proceeded to a private house and held a meeting
whereby they purported to appoint directors, etc. The petitioner was not a party to the suit. The
Court on such facts held,
"These are the facts and one has only got to state them to see that there has been an
error at every stage in these proceeding. There are proper ways in which a meeting of
a company can be called either by the directors in accordance with the provisions of
the Articles of Association or by the shareholders on requisition, also in accordance
with the provisions of the Articles of Association. There is only other way of which I
know, apart from any special Articles of Association, that a meeting of a company can
be called and that is by a direction of a court to the Liquidator in winding up
proceedings. The mere fact that certain persons who happened to be shareholders of
the company met together at a private house and purported to pass resolution
appointing directors and so on does not make that a meeting of the company. For a
meeting to be a meeting of the Company it must be a meeting convened, in one of the
ways to which I have referred and convened strictly in accordance with the Article of
Association. The result is that the order of the 27 June, 1924 was wrong and there was
no breach of that order as no meeting of the company was held on the 18th of May
1924 as the Munsif seems to have thought".
44. In Narain Singh v. Hardayal Singh MANU/PH/0050/1958 , the Court found the Executive Officer
of a Municipal Committee guilty of contempt of the disobedience of an order passed against the
Municipal Committee basically on the principle as Courts in England punish for contempt strangers
aiding and abetting breaches of prohibitory orders, thereby obstructing the course of justice, but
referred to 12 Amn. Jur. para 26 which states,
"The violation or disobedience of an injunction order issued by a Court having jurisdiction in
the matter, when committed by a party to the injunction suit or by a third party having actual
notice is a contempt of court. This rule is not confined to parties to the injunction. One who is
not a party to the injunction suit, but who is within the class of persons whose conduct is
intended to be restrained or who acts in concert with a party litigant or with a third party is
guilty of contempt. Persons who act as agents, servants, associates or confederates of parties
to the injunction suit may be held guilty of contempt in doing acts forbidden by the injunction
order."
45. A Division Bench of this Court in N. Senapathi v. Sri Ambal Mills MANU/TN/0115/1966 :
AIR1966Mad53 has stated the law in a case wherein an objection was taken to the territorial
jurisdiction of the Court of District Munsif, Coimbatore in issuing an order of injunction against the
first respondent company. Under the said order, holding an extraordinary general meeting of the
company was inhibited. However, several persons were brought in the contempt proceedings
including the 1st respondent Company, Managing Director of the company, another director of the
company and an advocate, who was the legal adviser of the company. It appears that the notice of
the orders of injunction had been served telegraphically to respondents t and 2 informing them of the
prohibitory orders. Petitioner himself went to the notified place of meeting at 9.30 a.m. on 14-12-
1964. He found the shareholders and directors present including the respondents. Petitioner informed
those persons of the ex parte interim injunction and pointed out that holding and passing the
contemplated resolution would amount to flouting the orders of the Court and to contempt of court.
In spite of this, apparently due to an earlier written legal opinion furnished by the 11th respondent
concerning the validity and legal effect of the interim orders of injunction, the meeting was actually
held and the resolution was passed. The Bench said (Paras 7 and 9):
"We have been at some pains to examine the law on this aspect of the flouting of an
order of Court, which may be passed without territorial jurisdiction, for, it seems to as
that this is of some importance and cases might arise frequently in actual judicial
administration. It seems to be abundantly clear that the question whether a court has
territorial jurisdiction or not, when one defendant indisputably resides within such
jurisdiction and the other ex facie does not, is primarily a question of fact for the court
to decide. For instance, it may depend on such a matter of evidence as the location of
a particular milestone in relation to a house of business, or the house of a private
individual. Even if such jurisdiction were altogether lacking, it could be easily cured
under Section 20(b) of the Code of Civil Procedure, either by an order of special leave
of court, or by the acquiescence of the concerned party. Where neither of these
elements is available, we may assume that Prima facie, the Court has no territorial
jurisdiction to exercise its powers over the concerned defendant including a power to
inhibit the acts of the defendant by an interim injunction .But we do think that it is
very important that a distinction should be made between a lack of jurisdiction which
does not go to the root of the powers of Court, such as an absence of territorial or
pecuniary jurisdiction or an alleged absence in these respects, and a lack of jurisdiction
which is basic to the very organisation of Court, or to the scope of its powers.
Authorities are available for the view that a mere absence of territorial or pecuniary
jurisdiction does not proceed to the root of the matter of jurisdiction and is capable of
cure by acquiescence by order of Court, or in other respects as provided for by law...
An order irregularly obtained cannot be treated as a nullity, but must be implicitly
obeyed until by a proper application, it is discharged... It is sufficient to refer here to
Halsbury's Laws of England, 3rd Edition, Volume 8 part I Sec. 3, sub-section 39 (also
see Oswald on Contempt 1910 Edition 106 which runs thus):
"A stranger to an action who aids and abets the breach of a prohibitory order obstructs
the course of justice and this contempt is punishable by committal or attachment."
There are several English cases cited in the books in support of this authority. Hence as far as these
other respondents are concerned, they are undoubtedly guilty of contempt, whether they were parties
to the order or otherwise so long as it was brought to their notice that the meeting was prohibited
and nevertheless they participated in it.
46. We can see thus clearly that the Courts in India invariably accepted the law applied in England
and found (1) a party to the suit if he had notice or knowledge of the order of the Court and (2) a
third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the
order of injunction guilty of civil contempt and otherwise found a (bird party guilty of criminal
contempt if he has been found knowingly obstructing implementation of its order of direction ,if ii is
found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the
order of the learned single Judge was directed to his conduct also and he violated the order after
notice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt
if he is found to have aided and abetted the violation of the order of the Court. Even otherwise it is
found that he obstructed or attempted to obstruct the implementation of the Court's
injunction/direction, he may be found guilty of criminal contempt provided he had the notice or the
knowledge of the order of the Court. It will be only after a determination of the nature of the
disobedience that it will be possible for the Court to say whether the procedure applied to a civil
contempt shall be applied to the contempt proceeding in his case or the procedure applied to a
criminal contempt will be applied (o it. In the former case, the learned single Judge shall be
competent to proceed. In the latter case, it shall be before a Division Bench and subject to such
conditions as are envisaged under the Contempt of Courts Act, 1971. We have however no hesitation,
in view of the principles of law noticed by us that this Court's power as the Court of Record will
extend not only to the determination of the contempt but also the determination whether on the
allegations brought before it, a civil contempt is made out or a criminal contempt is made out and
instead of any action of committal for contempt, the Court should make any such order which would
be in the administration of justice or not. We 'have already noticed that there are provisions in Order
XXXIX Rule 2A of the Code of Civil Procedure as a remedy for the violation of temporary or interim
injunction. Besides what is contemplated under Order XXXIX Rule 2A of the Code of Civil Procedure,
Courts have found another source of power in Section 151 of the Code of Civil Procedure and if that is
also ignored for a moment, this Court's power as a Court of Record and a Court of Special jurisdiction
is preserved under Articles 215 and 225 of the Constitution of India. There have been cases before
several Courts in which when faced with situations that some order or direction was violated and the
violation resulted in grave and serious injury, the Courts took the view that the Code of Civil
Procedure is not exhaustive. There are cases which say that if remedy to do justice is not provided for
in the Code or any other Act, the High Court must not fold its hands and allow injustice to be done.
47. In Bhagat Singh v. Dewan Jagbir Sawhney MANU/WB/0075/1941 : AIR1941Cal670 , a learned
Judge of the Calcutta High Court observed that the law cannot make express provisions against all
inconveniences and that the Court had, therefore, in many cases where the circumstances warranted
it, and the necessities of the case required it, acted upon the assumption of the possession of an
inherent power to act ex debito justitiae and to do that real and substantial justice for the
administration of what it alone exists.
In Manchar Lal v. Seth Hiralal MANU/SC/0056/1961 : AIR1962SC527 , the Supreme Court
approved the above statement of law.
48. In Hari Nandan v. S. N. Pandita MANU/UP/0011/1975 : AIR1975All48 , the Allahabad High
Court has taken the same view, namely that when a party has been dispossessed in disobedience of
the order of injunction, the Court can in exercise of its inherent power pass such order for ends of
justice as would undo the wrong done to the aggrieved party. A similar view has been expressed in
Magna v. Rustarn MANU/RH/0002/1963 .
49. Kerr on Injunctions, 6th Edition, Page 41 has said :
"But where the injury is of so serious or material a character that the restoring things to their
former condition is the only remedy which will meet the requirements of the case, or the
defendant has been guilty of sharp practices or unfair conduct, or has shown a desire to steal
a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue,
notwithstanding the amount of inconvenience to the other party, and though the expense
thereby caused to him will be out of proportion to any advantage the plaintiff may derive from
it."
50. In one of the recent judgments in Sujit Pal v. Prabir Kumar Sun MANU/WB/0038/1986 :
AIR1986Cal220 , a Division Bench of the Calcutta High Court has reiterated this view and stated that
"no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39,
Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order
of injunction. The process as contemplated by the said provision may or may not be ultimately
effective but, in any event, the procedure laid down in O. 39 R. 2A is incapable of granting an
immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction.
In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its
inherent power."
51. A similar view has been expressed by a Full Bench of this Court in Century Flour Mills v. S.
Subbiah MANU/TN/0217/1975 : AIR1975Mad270 . The Full Bench has said (at pp. 271-272 of AIR),
"Since the matter is not res integra, the best way to approach the question is to refer to the
decided cases and in the light of it, to come to a conclusion. Cases are agreed that, whether it
is a stay order or injunction, essentially, there is no difference between them except that in
the case of a stay order, it is addressed to the Court concerned and in the order, to the person
inhibited from doing a certain thing. There is also no difference that so far as Order XXXIX,
C.P.C. is concerned, it confers only limited powers and would not be of assistance in
circumstances as in the present case.... In our opinion, the inherent powers of this Court
under Section151, C.P.C. are wide and are not subject to any limitation. Where in violation of
a stay order or injunction against a party, something has been done in disobedience, it will be
the duty of the Court as a policy to set the wrong right and not to allow the perpetration of the
wrong doing. In our view, the inherent power will not only be available in such a case, but it is
bound to be exercised in that manner in the interests of justice. Even apart from S. 151, we
should observe that as a matter of judicial policy, the Court should guard against itself being
stultified in circumstances like this by holding that it is powerless to undo a wrong done in
disobedience of the Court's order. But in this case it is not necessary to go to that extent as
we held that the power is available under S. 151, C.P.C.
52. One important aspect of the case since there has been some arguments before us about it is, can
it be said that for a breach of the injunction by a party or a stranger for aiding or abetting the breach
alone, the Court's inherent power can be exercised and not in a case of a third party, who had the
knowledge of the order, but decided to violate it, who may be guilty of obstructing the administration
of justice still, will not be subject to any restitution order? This we feel needs no detailed discussion.
No person can obstruct the path of justice. No one can escape by committing a gross and violent
obstruction to the implementation of the order/direction of the Court. The only question relevant in
such a situation will be, whether the right which such a person has pleaded has been acquired by the
violation of the order or had existed in him independently unaffected by the injunction. There can be
no other law than one stated above that no person should be allowed to reap the benefits of a wrong
done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer
can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or
criminal contempt. Whether it is a civil concept or a criminal contempt, it is a contempt of Court and
the disobedience of the order in any case is an obstruction in the administration of justice. It has
been urged however that any order of restitution or restoration of the status quo ante by the order of
the Court should be as a consequence of the commission of the breach having been established.
Reference has been made to certain procedure adopted by Courts in England that where judgments
or orders of the Court are disobeyed, they are enforced by writ of sequestration or an order of
committal. This however should not detain us beyond stating that even if it is assumed that the Court
shall make an order of restitution or restoration of the status quo ante as a consequence of the
finding of guilt of disobedience, if there can be such a power, there can always be ancillary to it the
power to make an interim order to the said effect subject to the final determination of the case.
53. In M. S. Gill v. C.E.C. MANU/SC/0209/1977 : [1978]2SCR272 , the Supreme Court has
observed with respect to the power of the Court and the Chief Election Commissioner under
Sections 97,98 and 99 of the Representation of People Act and said (at pp. 884-885 of AIR),
"If a candidate whose return is challenged, has a case invalidating the challenger's
election, he may set it up subject to the provisions in Section 97. Then comes the
finale in Section 98. The High Court has three options by way of conclusive
determination. It may (a) dismiss the petition (b) declare the election void and (c) go
further to declare the petitioner duly elected. Side-stepping certain species of orders
that may be passed under Section 99, we have to explore the gamut of implied powers
when the grant of power is wide but needs incidental exercises to execute the
substantive power... Everything necessary to resurrect, reconstruct and lead on to a
consummation of the original process. May be, to give effective relief by way of
complaint of the broken election, the Commissioner may have to be directed to hold
fresh poll and report back together with the ballots. A recount of all or some may
perhaps be required. Other steps suggested by other developments may be desired. If
anything integrally linked up with and necessitated by the obligation to grant full relief
has to be undertaken or ordered to be done by the election machinery, all that is
within the orbit of the election court's power. Black's Law Dictionary explains the
proposition thus;
"Implied powers are such as are necessary to make available and carry into effect
those powers which are expressly granted or conferred, and which must therefore be
presumed to have been within the intention of the constitutional or legislative grant.
This understanding accords with justice and reason and has the support of Sutherland.
The learned Additional Solicitor-General also cited the case of Matajog Dobey v. H. C.
Bhari MANU/SC/0071/1955 : [1955]28ITR941(SC) , and Commissioner of Commercial
Taxes v. R. S. Jhaver MANU/SC/0046/1967 : [1968]1SCR148 , to substantiate his
thesis that the doctrine of implied powers clothes the Commissioner with vest
incidental powers. He illustrated his point by quoting from Sutherland Frank E. Harack
Jr. Vol. 3 "Necessary implications.
Where a statute confers powers or duties in general terms, all powers and duties, incidental and
necessary to make such legislation effective are included by implication. Thus it has been stated.
"An express statutory grant of power of the imposition of a definite duty carries with it
by implication in the absence of a limitation, authority to employ all the means that
are usually employed and that are necessary to the exercise of the power or the
performance of the duty. That which is clearly implied is as much a part of a law as
that which is expressed. The behind the rule is lo be found in the fact that legislation is
enacted to establish broad or general standards. Matters of minor details are
frequently omitted from legislative enactments and if there could not be supplied by
implication, the drafting of legislation would be an interminable process and the true
intendment of the Legislature likely to be defeated. The rule whereby a statute, is by
necessary implication extended, has been most frequently applied in the construction
of laws relegating powers to public officers and administrative agencies. The power
thus granted involves a multitude of functions that are discoverable only through
practical experience.
A municipality empowered by statute to construct sewers for the preservation of the
public health, interest and convenience was permitted lo construct a protecting wall
and pumping plant which were necessary for the proper working of the sewer, but
were essential to public health. A country school superintendent, who was by statute
given general supervisory power over a special election, was permitted to issue
absentee ballots. The power to arrest has been held to include the power to take finger
prints and take into custody non-residents who were exempted from the provisions of
a licensing statute."
54. Confronted with the provisions in Section 125 of the Code of Criminal Procedure which provides
for grant of maintenance after adjudication the Supreme Court in Savitri v. Govind Singh Rawat
MANU/SC/0104/1985 : 1986CriLJ41 said,
"In the absence of any express prohibition it is appropriate to construe the provisions in
Chapter IX as conferring an implied power on the Magistrate to direct the person against
whom an application is made under Section 125 of the Code to pay some reasonable sum by
way of maintenance to the appellant pending final disposal of the application. It is quite
common that applications made under Section 125 of the Code also takes several months for
being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the
applicant should be alive till the date of the final order and that the applicant can do in a large
number of cases only if an order for payment of interim maintenance is passed by the Court.
Every Court must be deemed to possess by necessary intendment all such powers as are
necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid
conceditur, conceditur et id sine quo res ipsa non potest (where anything is conceded, there is
conceded also anything without which the thing itself cannot exist) (vide Eral Jowitt's
Dictionary of English Law 1959 Edn. p. 1797). Whenever any thing is required to be done by
law and it is found impossible to do that thing unless something not authorised in express
terms be also done, then that some thing else will be supplied by necessary intendment. Such
a construction though it may not always be admissible in the present case however would
advance the object of the legislation under consideration. A contrary view is likely to result in
grave hardship to the applicant, who may have no means to subject until the final order is
passed. There is no room for the apprehension that the recognition of such implied power
would lead to the passing of interim orders in a large number of cases where the liability to
pay maintenance may not exist. It is quite possible that such contingency may arise in a few
cases but the prejudice caused thereby to the person against whom it is made is minimal as it
can be set right quickly after hearing both the parties".
This view has been expressed in a large number of cases including Nemai Chand Jain v. Lila Jain
MANU/WB/0083/1968 : AIR1968Cal405 , and Century Flour Mills Ltd. v. S. Subbiah
MANU/TN/0217/1975 : AIR1975Mad270 , and in a case under Section 18 of the Hindu Adoption
and Maintenance Act on the question of interim maintenance, a learned single Judge of this Court in
the case of D. Udayar v. Raja Rani ammal MANU/TN/0212/1973 : AIR1973Mad369 has said (at p.
371 of AIR),
"When the jurisdiction of the Court is attracted by filing a suit the Court has power to make
interlocutory orders in aid of the suit. Denial of status does not take away the jurisdiction of
the Court.... Bearing the general principles in view, namely the acts of Court including its
delays ought not to prejudice and cause hardship to any party, the power to make an interim
order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass
final orders therein.
55. There are three possible stages, where to redress damage or injury, the Court may decide to
grant a mandatory injunction in a case in which a certain injunction is violated.
(1) there can be an injunction apprehending further contempt, unless further order is
not made to stop, the violation will continue or perpetrate.
(2) Final adjudication of the damage is postponed and a temporary but mandatory
order is made, and
(3) Damage or injury is finally determined, and steps taken to effectuate the order.
The Supreme Court has said in R. P. Ltd. v. Proprietors, Indian Express Newspapers, Bombay Pvt.
Ltd. MANU/SC/0412/1988 : AIR1989SC190 .
"We must see whether there is a present and imminent danger for the continuance of
the injunction. It is difficult to lay down a fixed standard to judge as to how clear,
remote or imminent the danger is.... It is necessary to reiterate that the continuance
of this injunction would amount to interference with the freedom of press in the form
of preventive injunction and it must, therefore, be based on reasonable grounds for
the sole purpose of keeping the administration of justice unimpaired. In the words of
Mr. Justice Brandeis of the American Supreme Court concurring in Charlotte Anita
Whitney v. People of the State of California, (1926) 71 Law Ed 1095 , there must be
reasonable ground to believe that the danger apprehended is real and imminent. This
test we accept on the basis of balance of convenience. This Court has not yet found or
laid down any formula or test to determine how the balance of convenience in a
situation of this type, or now the real and imminent danger should be judged in case of
preventive publication of an article in a pending matter.....
The law of contempt must be judged in a particular situation. The process of due
course of administration of justice must remain unimpaired. Public interest demands
that there should be no interference with judicial process and the effect of the judicial
decision should not be pre-empted or circumstanced by public agitation or
publications. It has to be remembered that even at turbulent times through which the
developing countries are passing, contempt of Court means interference with the due
administration of justice."
The narrati Korren on of injunction above, the law as stated in Bhagat Singh v. Dewan Jagbir
Sawhney MANU/WB/0075/1941 : AIR1941Cal670 and the statement of law in Sujit Pal v. Prabir
Kumar Sun MANU/WB/0038/1986 : AIR1986Cal220 (supra) lend support to the view that any
action under Order 39, Rule 2A of the Code of Civil Procedure of contempt can be postponed and the
Court may issue a temporary mandatory injunction and order for restoration of status quo ante. The
Supreme Court in State of Bihar v. Rani Sonabati Kumari MANU/SC/0002/1960 : [1961]1SCR728
has held in respect of a proceeding under Order 39, Rule 2(3) of the Code of Civil Procedure before
amendment, similar to the amended provision of Order 39, Rule 2A that these provisions a punitive
aspect as evident from the contemner being liable to be ordered to be detained In civil prison but
they arc in substance designed to effect the enforcement of or the execution of the order. Thus to
effect the enforcement of the order or to execute the order, which is found not to have been
implemented ,irrespective of whether action for contempt is taken or not, the Court can order for
status quo ante by issuing a mandatory injunction. It is indeed ancillary to the Court's power to grant
finally on the conclusion of the contempt proceeding that the Court will also have the power to make
an interim mandatory injunction. A question may legitimately arise as to what consideration may
prompt the Court to ignore or overlook the contempt proceeding or postpone the contempt
proceeding or order for a mandatory injunction pending a final adjudication. Here one may Bear in
mind that merely because the Court's special jurisdiction or inherent jurisdiction is invoked at a stage
when a petition for contempt is filed, it will be wrong to say that such jurisdiction of the Court is
invoked in the contempt proceeding, it is a jurisdiction a special or inherent designed to effect the
enforcement or the execution of the order. Where the injury is of so serious or material a character,
that the restoring things to their former condition is the only remedy which will meet the
requirements of the case or the defendant has been guilty of sharp practices or unfair conduct or has
shown a desire to steal a march upon the plaintiff or to evade the jurisdiction of the Court, a
jurisdiction of this kind can be exercised in a pending proceeding, a suit, a contempt proceeding, or
even an independent proceeding after the final order or decree which has been evaded or violated. To
put any restriction upon the jurisdiction of the Court in this regard will render the constitutional
protections under Articles 215 and 225 of the Constitution aforequoted and afore discussed ineffective
and unenforceable. When then however be the consideration that will induce the Court to resort to
such jurisdiction will depend upon the nature of the injury, its seriousness and the threat it created to
the enforcement of the order of the Court and the public interest of the administration of justice on
the one hand and the rights of the parties on the other hand. As observed in the case of Manga
v. Rus lam MANU/RH/0002/1963 , the object of such an order being to safeguard the rights of a
party against a threatened invasion by the other party, if in disobedience of the order of injunction,
such rights are invaded during the pendency of the suit, the inherent power under Section 151 of the
Code can be invoked and a mandatory injunction can be granted. The Courts have also to lake notice
of the larger and higher interests of the administration of justice which is a public interest and this
should receive the first priority in considering whether the Court's special or inherent power should be
exercised or not. Grant of a temporary mandatory injunction will naturally thus require not only a
strong Prima Facie Case To Ensure That the Court's injunction or direction should first be
implemented or until it is implemented, status quo ante is maintained, it shall also bring into
consideration such rules on balance of convenience which are relevant quo rights of the parties in
dispute and the public interest of the administration of justice.
56-57. Adverting to the facts of this case, we knew that the main relief in the suit to declare that the
notice dated 26-5-1990 issued by the first and second defendants on the basis of the requisition
notices convening a Special General Meeting of the Association on 15-6-1990 is illegal, null and void
cannot be said to have become infructuous merely because the Court instead of granting any
injunction to hold the meeting on 15-6-1990, gave a direction to consider an agenda of no-confidence
against the Executive Council and election of new President and members of the Council in a
particular manner. It can still be found in the suit that the notice was illegal, null and void and as a
consequence, the Court may suitably modulate the relief or permit the plaintiffs to amend the relief.
Besides this the trial Court will have jurisdiction to consider the grant of a mandatory injunction even
in a suit which stood disposed of if its decree is found to have been violated or frustrated. The trial
Court being a Court of Record will have special jurisdiction/inherent power to pass such orders as arc
deemed necessary to meet the ends of justice since this power is saved for it under
Sections 4 and 151 of the Code of Civil Procedure and Articles 215 and 225 of the Constitution. The
instant suit which is still pending, shall give to the Court power to consider the desirability to grant a
mandatory injunction, for the reason of its interim injunction having been violated, to remove the
violation and until the suit is finally decided to preserve the property in dispute in Status Quo.
58- Our attention has been drawn to several provisions of the Memorandum of Association including
Clause (c) of Article XXVII thereof which states,
"The Association may sue or be sued in the name of the Secretary General, 10A -- A law suit
can only he filed at New Delhi, the headquarters of the I.O.A."
It is suggested on that basis that the second defendant being the Secretary-General of Indian
Olympic Association, the suit has been one against the Association and thus addressed to every
person connected with the Association. If this clause is required to be applied, it may be deemed that
the Association is the second defendant, but then the suit had to be filed at New Delhi and not at
Madras. Even if it is assumed that the Association has been a defendant and thus the direction issued
by the Court was directed to the Association, a question will arise whether the order of the Court
merely because it was addressed to the Secretary-General, who represented the Association, was an
order addressed to the representatives, who had arrived to participate in the Special General Meeting
or not. The General Assembly had been defined in the Rules and Regulations of the Association to
mean and include the Representatives deputed by the Members in accordance with the Rules and the
persons holding Indian citizenship and who are Members of the International Olympic Committee.
Article III names the members as National Sports Federations/Associations, whose sport is included in
the Olympic/Asian or Common Wealth Games, National Sports Federations/ Associations, which
represent widely played Indian sports recognised by the I.O. A., Olympic Associations of State, as
well as Centrally Administered Union Territories, Service Sports Control Board and the Indian Citizens
who are Members of the International Olympic Committee. As to who may be eligible to participate in
the general meeting and special meeting of the Association and who may be eligible to vote or who
qualify for being elected to the Executive Council, etc. may be gathered from the provisions which say
that at the annual general meeting and special general meeting, the members shall be entitled to
send their representatives and will depend mainly upon the Sports Federations and the Associations
sending their representatives as they are such members under the Rules and Regulations of the
Association who are entitled to send their representatives. We do not think it is necessary for us in
this appeal to decide on facts in dispute as to who participated or who was eligible to participate in
the special general meeting called on 15-6-1990. But as we have noticed above, it will be necessary
for the Court before finding out whether Sri Shukla is guilty of civil contempt, to decide whether
defendants 1 and 2 were implicated in their individual capacity or defendant No. 2 as alleged
represented the Association and thus the order/direction of the Court was addressed to the
Association and if it was addressed to the Association it was also addressed to Sri Shukla. In other
words, since the Association was a party, Sri Shukla was also a party at the time of the
order/direction which has allegedly been violated. If it is not so found, the Court shall have then to
consider whether there are any materials to show that Sri Shukla aided and abetted the violation of
the order/direction of the Court. In either case, it will be necessary to record a finding that notice of
the Court had been served upon Sri Shukla or he had knowledge of the order/direction of the Court
otherwise. In the event of the Court finding that the order had been addressed to Sri Shukla and he
had the knowledge of the order when the violation took place, he may be found guilty of civil
contempt, provided other ingredients of contempt are found to exist. Sri Shukla still may be found
liable for civil contempt even though the order of the Court had not been addressed to him if there
are materials to show that he had aided and abetted in the commission of the violation having notice
or knowledge of the order of the Court, even otherwise he may be found guilty of contempt but as a
stranger or a third party for obstructing the course of justice, a criminal contempt and not a civil
contempt. In the case of a civil contempt, found to have been committed by Sri Shukla, the Court
shall have full power to direct him by an order in the nature of a mandatory injunction to restitute or
restore the Status Quo as it obtained on the date of the order besides such punitive actions which the
Court may take against him in exercise of its power under Order 39, Rule 21 of the Code of Civil
Procedure or as a Court of Record under Art. 215 of the Constitution of India read with the relevant
provisions of the Contempt of Courts Act, 1971. Incase it is found however that the order of the Court
had not been addressed to Sri Shukla as a representative of one of the members of the Association,
nonetheless it is found that he had the knowledge of the order/direction of the Court, and he
knowingly and deliberately constructed the implementation of the order/direction of the Court, he
may be found guilty of criminal contempt; the Court shall not be powerless even in such a case and
may direct Sri Shukla or any other person who may be found to have stood in the way of
implementation of the order/direction of the Court, to remove the obstruction and restore Status Quo
Ante, besides any effective action that may be taken in the criminal contempt. The Court's power
under its special jurisdiction of inherent jurisdiction to make such an order even in the case of a
criminal contempt cannot be denied. It shall however be necessary in the case of a criminal contempt
that the procedure prescribed under the Contempt of Courts Act, 1971 is followed and the criminal
contempt will have to be dealt with by a Division Bench and not by the learned single Judge that is to
say the trial Court. Learned trial Judge has found in this case that it was not possible to accept the
contention that there was no intimation or information or knowledge to Sri Shukla about the order
passed by the Court at the meeting. He has however not considered the question whether the
order/direction of the Court had been addressed to Sri Shukla or not. whether there were/are
materials to show that Sri Shukla aided and abetted in the commission of the violation of the
order/direction of the Court or not and whether as a third party, Sri Shukla obstructed the due courts
of justice or not. Learned trial Judge however has rightly observed that in disposing of the sub-
application under Section 151 of the Code of Civil Procedure, it was not relevant or necessary to go
into the question of contempt, if he has meant to say that it was not necessary to dispose of the
contempt petition finally because even for a Prima Facie determination for the purpose of removing
the obstruction in the implementation of the order/direction of the Court, or for enforcing the order/
direction of the Court, it will be necessary to find that Sri Shukla violated the order of the Court or
that he obstructed the execution of the order of the Court. Besides such a finding as noticed by us
above, it will also be necessary to consider all aspects of inconvenience that Sri Shukla suffer on the
one hand and the injury that may be caused would be of so serious or material a character that the
restoring things to their former condition is the only remedy which will meet the requirements of the
case or that Sri Shukla had been guilty of sharp practices and unfair conduct or had shown a desire to
steal a march upon the plaintiff or that he had acted to evade the jurisdiction of the Court and such
other principles which govern or emerge from the rule of the balance of convenience on the other
hand. Learned trial Judge has got jurisdiction for making an order in the nature of mandatory
injunction but on principles that we have noticed above.
59. Mr. K. K. Venugopal has conceded that Learned trial Judge has not addressed himself to the
above aspects of the case. Mr. Cooper, who has followed him, has submitted that the question
aforementioned are questions of law. Both of them however have urged that this Bench as the Court
of Appeal should determine these questions and decide the controversy finally. Mr. Kapil Sibbal on the
other land, however, has submitted that any determination of these questions at this appellate stage
will cause serious prejudice to the interests of the appellant as he may be deprived of a right of
appeal under the Letters Patent against any finding on the question above by the learned trial Judge
and in case it is found to be a criminal contempt of his right of being tried by a Division Bench subject
to the statutory appeal before the Supreme Court.
60. We have given cur anxious consideration to the matter. We are of the opinion that it will be fair
and equitable to remit back the case to the trial Court to consider the case in the light of the
observations with respect to the law on the subject by us above. But we are not able to close our
eyes to the serious injury that the sports in the country is likely to suffer on account of the remand
and delay in determination of the matter in full even for the purpose of granting an immediate relief
by an order of mandatory injunction. Since we have found that the Court can grant temporary
mandatory injunction pending a contempt petition or independent of it, we have no hesitation or
doubt in holding that the Court, pending a decision on the desirability of issuing a temporary
mandatory injunction and restoration of status quo ante to ensure the enforcement of or the
execution of the order/direction which has been allegedly violated, can make an ad interim order as
well either in the nature of mandatory injunction and restoration of status quo ante or by an order to
ensure that until issue of the grant of mandatory injunction and restoration of status quo ante is
decided, no injury is caused to the public interest of sports. The Supreme Court has also shown its
concern to the state of affairs of the Indian Olympic Association causing serious injury/damage to the
interest of Sports. While it may be said that if it is found that no confidence resolution has not been
adopted, the plaintiffs have a right for continuance of the status quo as it obtained before 15-6-1990
and if it is found that Sri Shukla has acquired an independent right to the office of the President of the
Indian Olympic Association unaffected by the order/direction of the Court, then Sri Shukla has got a
right to be the President of the Indian Olympic Association, these two conflicting interests have to be
balanced with reference to the facts that may be found one way or the other. In our opinion, there
shall be no injury of any kind to any of the parties to the proceeding including the plaintiffs or to Sri
Shukla if all of them arc asked to keep away from the Indian Olympic Association until the issue as to
the grant of mandatory injunction is decided. We are more inclined in favour of such an order for the
reason that only the President and the Secretary-General of the Association before 15-6-1990 are
present as part defendants in the suit. The Executive Council of the Association has got as its
members besides the President and the Secretary-General, 9 Vice-Presidents, 6 Joint-Secretaries, a
Treasure. 7 members elected from among the Representatives of the State Olympic Associations and
12 members elected from among the Representatives of National Special Federations/Associations/
S.S.C.B. who are not before this Court. It is not known whether they desire to be restored as
members of the Executive Council and are willing and ready to function in the said capacity. It is one
of the settled rules that even a temporary mandatory injunction should not be granted in favour of a
person, who is not willing to get such an order. It will be inappropriate therefore to restrain Sri Shukla
until the entire matter is finally decided as observed by us earlier. But at the same time, it shall be
wholly inappropriate to allow Sri Shukla to function as the President or those nominated by him to
constitute the Executive Council in view of the seriousness of the allegations made on behalf of the
plaintiffs because it is clearly the case of Sri Shukla that he was elected as the President of the
Association as a result of the no-confidence resolution, which if at all adopted, was not adopted in
accordance with the directions of this Court.
61. For this reason and the reason of the interest of the sports as well as the interest of
administration of justice, two public interests, we are inclined to order that until the final adjudication
of the issue whether any mandatory injunction be issued for restoration of status quo ante or not, the
administration of the Association is put in the hands of a person of eminence, independence and who
takes interest in sports.
62. In the result, the appeal is allowed. The order of the learned trial Judge dated 11-7-1990 made in
Sub-Application No. 230 of 1990 is set aside. The case is remitted back for a fresh hearing and
disposal in accordance with law and in the light of the observations made above. Pending disposal of
the said application, it is hereby ordered that Shri S. Natarajan. a retired Judge of the Supreme Court
shall he the one Member Executive Council, who shall exercise all the powers vested in the Office-
bearers including the President as well as the Executive Council in consultation with a Committee
nominated by him of men representing National Sports Federations/ Associations, Stale Olympic
Associations and the International Olympic Committee members in India not exceeding seven and
receive a fixed honorarium of Rs. 15,000/- p.m. and expenses and allowances admissible to the
President of the Indian Olympic Association from the funds of the Association. Parties are directed to
comply with the order forthwith. Since the matter is of importance and far-reaching consequences,
we direct that the sub-application be disposed of as quickly as possible preferably within a period of
two months.
63. Order accordingly.


MANU/DE/2041/2011
Equivalent Citation:
IN THE HIGH COURT OF DELHI
Cont. Cas (C) 173/2011
Appellants: Vimal Kumar
Vs.
Respondent: Ramesh Negi and Anr.
Rajiv Sahai Endlaw, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.K. Saini, Sitab Ali Choudhary and Aradhna Mittal, Advs.
For Respondents/Defendant: None
Catch Words
Mentioned IN
Acts/Rules/Orders:
Industrial Disputes Act, 1947 - Section 17B, Industrial Disputes Act, 1947 - Section 33C, Industrial
Disputes Act, 1947 - Section 33C(1), Industrial Disputes Act, 1947 - Section 33C(2), Industrial
Disputes Act, 1947 - Section 33C(4); Contempt of Courts Act, 1971 - Section 13
Cases Referred:
Nishikesh Tyagi v. Sh. P.R. Santhanam Cont. Cas (C) 26/2011; Uma Shankar v. Hindustan Carbide
Pvt. Ltd. MANU/DE/0415/2004 : 111 (2004) DLT 270; Government of NCT of Delhi v. Shri D.S.
Bawa MANU/DE/1423/2010 ; Hindustan Zinc Ltd. v. Industrial Tribunal MANU/SC/2324/2000 :
(2001) 10 SCC 211; T. Sudhakar Prasad v. Govt. of A.P. MANU/SC/0811/2000 : JT 2001 (1) SC
204; R.N. Dey v. Bhagyabati Pramanik MANU/SC/0286/2000 : 2000 (4) SCC 400; Kishorbhai
Dahyabhai Solanki v. Nagjibhai Muljibhai Patel MANU/GJ/0441/2002 : (2002) II LLJ 1034
Guj; Abdul Razack Sahib v. Mrs. Azizunnissa Begum AIR 1970 Madras 14; Dr. Bimal Chander Sen v.
Kamla Mathur MANU/DE/0426/1982 : 1983 Cri LJ 495; Shri Puneet Parkash v. Shri Jai
ParkashMANU/DE/0773/2010 ; Anand Kumar Deepak Kumar v. Haldiram Bhujiawala 146 (2008)
DLT 100; Central Bank of India Limited v. P.S. Rajagopalan MANU/SC/0149/1963 : AIR 1964 SC
743;Kaivalyadham Employees Association v. Kaivalyadham S.M.Y.M. Samity MANU/SC/1656/2009
; Ajit Arjani v. Roma Arjani MANU/DE/0317/2004 : 111 (2004) DLT 545; Rama Narang v. Ramesh
Narang MANU/SC/1960/2006 : (2006) 11 SCC 114
Citing Reference:

Discussed

8

Mentioned

10

Disposition:
Petition dismissed
Case Note:
Contempt of Court - Disobedience of Order - Contempt of Courts Act, 1971 - Court below on
an application of Petitioner / relator under Section 17B of the Industrial Disputes Act, 1947
directed contemnor to pay to Petitioner / relator, last drawn wages or minimum wages
whichever was higher and on other terms and conditions stipulated in order - Hence, this
Petition - Whether, contemnors were in violation of order - Held, amounts payable under
Section 17B of ID Act would also fall in amounts due to an employer "under an award"
inasmuch as same represent amount payable statutorily during time challenge to award
was pending before the Court - However, Court had held remedy of contempt to be not
available for breach of interim orders directing payment in proceedings other than under
the ID Act - Further, Labour Courts/Industrial Tribunals were constituted to provide
speedy remedy to workmen who was found to be constituting class amongst themselves
entitled to speedy adjudication of their claims - Though, finding merit that lofty aspiration
with which Labour Courts/Industrial Tribunals were constituted had not been fulfilled - It
was often found that disposal of disputes by Labour Court/Industrial Tribunal was taking
longer than adjudication by the Civil Courts - Moreover, it was for Industrial
Tribunal/Labour Court to devised ways and methods for enforcement of orders under
Section 17B - If it was shown that employer had by his conduct created situation whereby
neither award of reinstatement was being enforced nor was order under Section 17B
abided by Court could always invoke its jurisdiction under the 1971 Act to punish guilty -
Thus, Petition could not be held to be maintainable - Petition dismissed.
Ratio Decidendi:
"Suit shall not be held maintainable, if there is violation of order of Court."
JUDGMENT
Rajiv Sahai Endlaw, J.
1. Contempt is averred of the order dated 11th November, 2009 of this Court on an application of the
Petitioner / relator under Section 17B of the Industrial Disputes Act, 1947 directing the alleged
contemnor to pay to the Petitioner / relator from the date of the award and till the decision of the writ
petition, last drawn wages or minimum wages whichever is higher and on the other terms and
conditions stipulated in the order. It is the case of the Petitioner that the alleged contemnors are in
violation of the said order.
2. The petition came up first before this Court on 10th March, 2011 when attention of the counsel for
the Petitioner/relator was invited to an order dated 17th January, 2011 of this Bench in Cont. Cas (C)
26/2011 titled Nishikesh Tyagi v. Sh. P.R. Santhanam holding a contempt petition to be not
maintainable with respect to an order under Section 17B of the ID Act. Reliance in the said order was
placed on another judgment of this Court in Uma Shankar v. M/s Hindustan Carbide Pvt.
Ltd. MANU/DE/0415/2004 : 111 (2004) DLT 270 where also a contempt petition filed for the
alleged violation of order under Section 17B was dismissed. The counsel for the Petitioner had then
sought time to consider the matter.
3. The counsel for the Petitioner has today urged that the judgment of this Court in Uma Shankar
(supra) cannot be read as laying down that a contempt petition would not be maintainable for
violation of an order under Section 17B of the Act. He has argued that in Uma Shankar the employer
was in violation not only of the order under Section 17B of the ID Act but also of the terms and
conditions on which the stay of the award of the Labour Court/Industrial Tribunal challenged in that
case was granted; that owing to the said violation, the writ petition stood dismissed; that it was
thereafter that the contempt petition for non compliance of the order under Section 17B was filed. It
is argued that it was in these circumstances, since the writ petition already stood dismissed and
further since owing to the violation/breach of the order under Section 17B the Petitioner employer in
that case had already been punished by the dismissal of its writ petition, that this Court held that the
contempt petition would not be maintainable and that the remedy of the workman is under
Section 33C of the ID Act. It is urged that in the present case the writ petition in which the order
under Section 17B of the ID Act was made is still pending and thus what has been laid down in Uma
Shankar, would not apply.
4. Before proceeding to consider the aforesaid argument, I may notice that I have had an occasion in
Government of NCT of Delhi v. Shri D.S. Bawa MANU/DE/1423/2010 to consider whether non-
compliance of order under Section 17B necessarily results in dismissal of the writ petition challenging
the award of the Labour Court/Industrial Tribunal. Relying on Hindustan Zinc Ltd. v. Industrial
Tribunal MANU/SC/2324/2000 : (2001) 10 SCC 211 it was held that a writ petition cannot be
disposed of for the reason of non compliance with the order under Section 17B, without dealing with
the merits.
5. I am unable to agree with the counsel for the Petitioner that the judgment in Uma Shankar is not a
precedent for the proposition that non compliance of order under Section 17B is not contumacious.
Undoubtedly, in Uma Shankar the writ petition in which the order under Section 17B was made stood
dismissed by the time the contempt petition was filed. However, the contempt petition was held to be
not maintainable not for the reason of the writ petition having stood dismissed. This Court referred to
T. Sudhakar Prasad v. Govt. of A.P. MANU/SC/0811/2000 : JT 2001 (1) SC 204 and to R.N. Dey v.
Bhagyabati Pramanik MANU/SC/0286/2000 : 2000 (4) SCC 400 deprecating the use of Contempt of
Court jurisdiction as a method of executing a decree or implementing an order for which the law
provides appropriate remedy. This Court also relied upon Kishorbhai Dahyabhai Solanki v. Nagjibhai
Muljibhai Patel MANU/GJ/0441/2002 : (2002) II LLJ 1034 Guj (DB) and on Abdul Razack Sahib v.
Mrs. Azizunnissa Begum MANU/TN/0075/1970 : AIR 1970 Mad 14 to hold that penal sanctions
under the contempt procedure should not be invoked for default of compliance with such orders and
that the high function of a Court of Justice proceedings by way of Contempt of Court should not be
employed as a legal thumbscrew by a party against his opponent for enforcement of his claim. It is on
the basis of the said principles that this Court held that the contempt petition did not lie. Uma
Shankar is thus a precedent on all fours against the maintainability of this petition.
6. I have in Nishikesh Tyagi (supra) given yet another reason for holding contempt to be not
maintainable. Reliance was placed on Dr. Bimal Chander Sen v. Kamla Mathur MANU/DE/0426/1982
: 1983 Cri LJ 495, Shri Puneet Parkash v. Shri Jai Parkash MANU/DE/0773/2010 and on Anand
Kumar Deepak Kumar v. Haldiram Bhujiawala 146 (2008) DLT 100 to hold that once a mechanism for
enforcement of the order is provided, contempt would not lie.
7. The counsel for the Petitioner/relator has not been able to controvert that an order under
Section 17B would be enforceable under Section 33C(1) before the Labour Court. Thus if the
employer does not comply with 17B order, the employee/workman can always approach the Labour
Court/Industrial Tribunal for enforcement thereof.
8. Even though Section 33C(1), as per its language is applicable where any money is due to the
workman from an employer under a settlement or an award or under the provisions of Chapter VA or
Chapter VB of the ID Act and even though Section 17B does not fall in either of the said Chapters, but
the Supreme Court in Central Bank of India Limited v. P.S. Rajagopalan MANU/SC/0149/1963 : AIR
1964 SC 743 held that Section 33C(1) provides for a kind of execution proceedings and it
contemplates that if money is due to a workman, the workman is not compelled to take recourse to
the ordinary course of execution in the Civil Court but may adopt a summary procedure prescribed by
Section 33C(1) and that all that Section 33C(1) postulates is that a specific amount is due to the
workman and the same has not been paid to him and if the appropriate Government is satisfied that
the money is so due, then it is required to issue a certificate for the said amount to the Collector and
that leads to the recovery of the said amount in the same manner as an arrear of land revenue.
It was further held that if though Section 33C(1) contains words of limitation and Section 33C(2) is
free of such limitations but Section 33C(4) further provides that the amounts found due under
Section 33C(2) may be recovered in the manner provided for in Section 33C(1). It would thus be
seen that Section 33C(4) widens the scope of Section 33C(1).
In my opinion, the amounts payable under Section 17B would also fall in amounts due to an employer
"under an award" inasmuch as the same represent the amount payable statutorily during the time the
challenge to the award is pending before the High Court.
9. Mention must also be made of the recent dicta in Kaivalyadham Employees Association v.
Kaivalyadham S.M.Y.M. Samity MANU/SC/1656/2009 where the Supreme Court though held that
the High Court could not direct an application under Section 17B to be adjudicated by directing
parties to lead evidence before the Labour Court under Section 33C(2), nevertheless held that in
certain cases the provisions of Section 33C(2) may have to be resorted to in respect of an order
under Section 17B but not as a matter of course.
10. I may also notice that this Court has held the remedy of contempt to be not available for breach
of interim orders directing payment, in proceedings other than under the ID Act. Reference in this
context may be made to Ajit Arjani v. Roma Arjani MANU/DE/0317/2004 : 111 (2004) DLT 545
laying down that contempt petition does not lie for violation of an order directing payment of interim
maintenance and the remedy for such violation is by execution of the said order. Similarly in Puneet
Prakash v. Jai Prakash MANU/DE/0773/2010 contempt was held to not lie for non compliance of a
consent decree. It was held that the remedy was by way of execution. The common thread running
through the said judgments is that contempt proceeding is not a substitute for execution. Though the
Supreme Court in Rama Narang v. Ramesh Narang MANU/SC/1960/2006 : (2006) 11 SCC 114
observed that merely because an order or decree is executable, would not take away the Court's
jurisdiction to deal with a matter under the Contempt of Courts Act, 1971 but provided the Court is
satisfied that the violation of order or decree is such, that if proved, it would warrant punishment
under Section 13 of Contempt of Courts Act on the ground that the contempt substantially interferes
with the due course of justice; non compliance of Section 17B order cannot be said to be interfering
with the due course of justice also for the reason hereinafter stated.
11. The occasion for passing an order under Section 17B arises only if the employer prefers a
proceeding against the award of the Labour Court/Industrial Tribunal of reinstatement of the
workman and if the workman has not been employed in any establishment during the pendency of
such proceeding. The question of the workman being not employed in any establishment during the
pendency of such proceeding would arise only if the High Court or the Supreme Court while
entertaining challenge to the award, stays the operation thereof. If it is found that the employer has
on the one hand obtained an order of stay of the operation of the award of reinstatement and is on
the other hand not complying with the order under Section 17B, the appropriate remedy would be to
seek vacation of the said order of stay and whereupon the employee would become entitled to
execute the award of reinstatement before the Labour Court. No case of contempt would still be made
out.
12. Some of the other counsels for employee / workman in other similar matters have argued that
unless the jurisdiction of contempt is exercised in such a situation, the workman would be compelled
to file applications under Section 33C month after month. It is also contended that the procedure
before the Labour Court / Industrial Tribunal is elaborate.
13. The Labour Courts/ Industrial Tribunals were constituted to provide a speedy remedy to the
workmen who are found to be constituting a class amongst themselves entitled to speedy
adjudication of their claims. Though finding merit in the contentions that the lofty aspiration with
which the Labour Courts/Industrial Tribunals were constituted has not been fulfilled and it is often
found that the disposal of the disputes by the Labour Court/Industrial Tribunal is taking longer than
adjudication by the Civil Courts, however, the same cannot digress the view of this Court on the logic
aforesaid. It is for the Industrial Tribunal/Labour Court to devise ways and methods for enforcement
of orders under Section 17B. If the Labour Court/Industrial Tribunal finds that the employer is
harassing the workman in payment under Section 17B, the Labour Court/Industrial Tribunal can
always devise ways and means for ensuring such payment regularly and month by month. Moreover
if it is shown to this Court also that the employer has by his/its conduct created a situation whereby
neither the award of reinstatement is being enforced/implemented nor is the order under
Section17B abided by, this Court can always invoke its jurisdiction under the Contempt of Courts Act,
1971 to punish the guilty.
14. Thus looked at from any perspective, the petition cannot be held to be maintainable and is
dismissed with liberty to the Petitioner / relator to avail of the alternative/appropriate remedy. No
order as to costs.


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MANU/DE/0426/1982

Equivalent Citation: 1983CriLJ495, 22(1982)DLT33, 1982RLR553

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