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Navivahoo Vs. Narotamdas Candas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom5
AppellantNavivahoo
RespondentNarotamdas Candas
Excerpt:
contempt - committal for contempt--jurisdiction of high courts in india--power to commit for contempt--civil procedure code (act xiv of 1882), sections 136 and 591--right of appeal from order to commit for contempt. - - it was said, however, that the power of the high court to commit for disobedience of any order under chapter x of the civil procedure code as a contempt of court was impliedly taken away by the express provisions contained in section 136. it is a well-established rule of construction of acts of parliament in england that, the jurisdiction of superior courts is not to be deemed to have been taken, away except by express words or clear implication:.....were vested by royal charter in the supreme courts of india, and subsequently in the present high courts, the same rule of construction may be applied with equal propriety in determining whether those powers have been taken away by subsequent legislation.3. now, section 136 of the civil procedure code provides that if a party fails to comply with| any order under chapter x, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not appeared or answered; and, lastly, that the party so failing to comply with the order shall also be deemed guilty of an offence under, section 188 of the indian penal cod. it was contended that this last clause,.....
Judgment:

Charles Sargent, Kt., C.J.

1. This is an appeal from an order made on the 14th May, 1882, by Mr. Justice Bayley, committing the appellant to prison for contempt of Court in not obeying an order of 23rd December, 1881, by which she was ordered to produce certain cash books and ledgers for the inspection of the respondent. A preliminary objection was taken that an appeal would not lie against the order. It was said that Section 591 of the Civil Procedure Code (Act X) of 1877 provides that no appeal should lie from any order passed by any Court in the exercise of its original jurisdiction except as provided in chapter XLIII and that the order in question is not to be found amongst those enumerated in Section 588 from which an appeal is given. This would be true if the order in question had Seen passed in the, exercise of its original civil jurisdiction; for that, we apprehend, must be the meaning of original jurisdiction in a Code of Civil Procedure. Contempts, however, are in the nature of an offence; and attachment, as Blackstone in his Commentaries say is the immemorial method used by European Courts of punishing such offences. In Book VI, chapter XV, he enumerates the different forms of contempts, amongst which he mentions 'those committed by parties to any suit or proceeding before the Court by disobedience to any rule or order made in the progress of a cause.' An order of attachment for contempt cannot, therefore, be properly said to be an order in exercise of civil jurisdiction, and we do not think it can be regarded as being in the contemplation of the section in question. There is nothing, therefore, in the Civil Procedure Code which takes away the right of appeal given by Section 15 of the Letters Patent which provides that an appeal shall lie in the case of every judgment by a single Judge of the High Court not being a sentence or order passed in a criminal trial.

2. As to the order of commitment it was contended for the appellant that it was made without jurisdiction, the power of committal for contempt having been taken away by the Civil Procedure Code of 1882 in this particular form of contempt. The question as to the jurisdiction of the High Court to commit for contempt came before the.High Court of Calcutta in Martin v. Lawrence I.L.R. 4 Cal. 655 where the plaintiff was ordered by the Court to pay a sum of money in an administration suit, and not having complied with the order, was committed for contempt. Garth, C.J., and White, J., held that the jurisdiction of the Court to commit for contempt in the particular instance was neither taken away or affected by the new Code of Civil Procedure. It was said, however, that the power of the High Court to commit for disobedience of any order under chapter X of the Civil Procedure Code as a contempt of Court was impliedly taken away by the express provisions contained in Section 136. It is a well-established rule of construction of _ Acts of Parliament in England that, the jurisdiction of superior Courts is not to be deemed to have been taken, away except by express words or clear implication: Maxwell on the Interpretation of Statutes, p. 107. Andas all the high powers, which are the distinguishing marks of the superior Courts in England, were vested by Royal Charter in the Supreme Courts of India, and subsequently in the present High Courts, the same rule of construction may be applied with equal propriety in determining whether those powers have been taken away by subsequent legislation.

3. Now, Section 136 of the Civil Procedure Code provides that if a party fails to comply with| any order under chapter X, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not appeared or answered; and, lastly, that the party so failing to comply with the order shall also be deemed guilty of an offence under, Section 188 of the Indian Penal Cod. It was contended that this last clause, which provides for the party's disobedience being treated as a criminal offence, impliedly excludes the summary power of punishing it as a contempt of Court. We cannot adopt that, view of the section.

4. In the first place it appears to us to be not unreasonable to assume that if there had been any intention on the part of the Legislature to interfere with the very important and extensive powers of the High Courts of enforcing obedience of their orders by process of contempt, it would have been effected by express words and not left to be implied. Secondly, we think that there is no sufficient ground for such implication to be found in the section itself, and that the state of the law as regarded the Mofussil Courts before the new Civil Procedure Code came into force affords in itself an adequate explanation of the introduction of the provision in question without assuming any intention on the part of the Legislature to interfere with the jurisdiction of the High Courts in matters of contempt. Under the old Civil Procedure Code (Act VIII) of 1859 the power which the Mofussil Courts possessed of dealing with an act of disobedience, such as the one in question, was given them by Section 170 of that Code, which provided that the Court? might pass judgment against the party so failing or refusing to produce the document or make such order in relation to the suit as the Court might think proper in the circumstances of the case. Under Section 435 of the Criminal Procedure Code (Act X of 1872) the Court could also, where the offence was committed in its presence, summarily convict under Section 175 of the Penal Code, which makes the omission to produce a document before a public servant by a person legally bound, to produce such document an offence, and could sentence the offender to a fine not exceeding Us. 200 and in default of payment send him to the civil jail for a month, unless the fine was sooner paid.

5. It is plain that Section 175 of the Penal Code would not apply to many cases of non-compliance with orders under chapter X of the Civil Procedure Code (Act XIV) of 1882, which deals comprehensively with all questions relating to discovery, inspection and production of documents; and the object of the provision in Section 136 of the Civil Procedure Code of 1882 would seem to be to provide generally for all cases of non-compliance with orders under chapter X of the Code being regarded as an offence by enacting that they shall be deemed to be offences under Section 188, of the Penal Code which embraces all acts of disobedience to an order duly promulgated by a public servant.

6. We think that this view of the law can leave no reasonable doubt that the object the framers of the section had in view was exclusively to provide the Courts of the Mofussil with a remedy in all cases of disobedience of orders under chapter X of the Civil Procedure Code analogous to the one which they already possessed in the particular case contemplated by Section 170 of the Civil Procedure Code of 1859.

7. Lastly, the very limited nature of the powers given by section. 136 forbids this inference of any intention to take away the summary and unlimited power of attachment which the High Courts had possessed up to the passing of the Code; for it is to be remarked that not only is the period of punishment limited to one month, but as Section 480 of the Criminal Procedure Code (Act X) of 1882 does not apply to offences under section of 188 of the Penal Code, the offence contemplated by Section 136 of the Civil Procedure Code cannot be dealt with summarily by the Civil Court, but will have to be tried under the general provisions of the Criminal Procedure Code.

8. As to the merits of the order of commitment, we are unable to find any authority for going behind the order the disobedience to which constitutes the contempt. In the present case the appellant relies entirely upon the impropriety of that order, and upon the same grounds as she urged against its being made, and not upon any circumstances which might have supervened and have prevented her fulfilling it. If we were to hold otherwise, we should be virtually giving an appeal against the order of production of documents--an order which is not to be found amongst those enumerated in Section 588. It may be said that an appeal against the order of commitment will, under those circumstances, be, as a rule, of little value; but that cannot, we think, be a reason for departing from the ordinary practice, however mach it may be for exercising extreme caution in making orders of the nature of that appealed against.


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