Skip to content


The Collector of Bombay Vs. Issac Penhas - Court Judgment

LegalCrystal Citation
SubjectContemt of Court
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 62 of 1946 and Miscellaneous No. 156 of 1946
Judge
Reported in(1947)49BOMLR709
AppellantThe Collector of Bombay
Respondentissac Penhas
DispositionAppeal allowed
Excerpt:
letters patent, clause 15-'judgment,' meaning of-whether an order committing far contempt is such judgment-contempt-procedural contempt-appeal from order of committal.;an order of a single judge of the high court committing a party to prison or ordering him to pay a fine for disobedience of an order of the court is a 'judgment' within the meaning of clause 15 of the letters patent, and therefore an appeal lies to the high court from such an order.;venkatalingam v. mrutyanjayadu [1944] mad. 197, relied on.;budhu lal v. chattu gope (1916) i.l.r. 44 cal. 804, referred to.;narendrabhai v. chinubhai (1936) 38 bom. l.r. 571, explained. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel.....leonard stone, c.j.1. this is an appeal from a judgment of mr. justice bhagwati dated october 29, 1946, whereby he ordered that the respondent, i.e. the appellant in this court, do pay into court a fine of rupees one hundred for the contempt of this; hon'ble court committed by him in not obeying an interim order made on september 28, 1946, in having, in contravention of the said order, ordered and directed the government representative ramkrishna dinanath shirsat to make an inventory of the furniture and other articles in flat no. 13 of the second floor of the building called 'rupayatan' situated at 69 marine drive, bombay, and to lock up the flat by putting a lock upon the outer door of the said flat and 'driving out the people who might be in possession thereof.' it is further ordered.....
Judgment:

Leonard Stone, C.J.

1. This is an appeal from a judgment of Mr. Justice Bhagwati dated October 29, 1946, whereby he ordered that the respondent, i.e. the appellant in this Court, do pay into Court a fine of rupees one hundred for the contempt of this; Hon'ble Court committed by him in not obeying an interim order made on September 28, 1946, in having, in contravention of the said order, ordered and directed the Government representative Ramkrishna Dinanath Shirsat to make an inventory of the furniture and other articles in flat No. 13 of the second floor of the building called 'Rupayatan' situated at 69 Marine Drive, Bombay, and to lock up the flat by putting a lock upon the outer door of the said flat and 'driving out the people who might be in possession thereof.' It is further ordered that the respondent should pay to the petitioner his costs of the rule nisi and of the order as between attorney and client.

2. That order was made upon a rule nisi issued by the learned Judge on September 30 whereby he ordered that the respondent (i.e. the appellant in this Court):

do appear before the Hon'ble Judge nominated to hear miscellaneous matters on Monday the seventh day of October 1946 at 10-30 O'clock in the forenoon and show cause if any he has why the respondent should not be committed to jail or otherwise dealt with by this Hon'ble Court in such manner as may be deemed necessary for contempt of Court committed by the respondent, viz., ordering and directing the Government representative mentioned in the affidavit of V.V. Nadkarni to make an inventory of the furniture and other articles in the said flat and to lock up the flat by putting a lock on the outer door of the said flat and thereby failing; to comply with and contravening the said interim order dated the 28th day of September 1946 and why the respondent should not be ordered to pay the costs of the petitioner of the said application and of this rule nisi.

3. It is to be noted that there is nothing in the rule nisi about the respondent having ordered anybody to drive out the people who might be in possession of the flat; but on the view which we take of this matter, it becomes unnecessary to consider what the effect of this inconsistency between the rule nisi and the ultimate order might be.

4. The appellant, Mr. R.G. Davies, is the Collector of Bombay, and as such a responsible officer of Government, and we have had the advantage of hearing in this Court the Advocate General, whom Government have instructed to appear in his behalf. Before proceeding to examine the facts and the merits of the case, it is necessary to dispose of a preliminary point taken by Mr. Taraporewalla, who appears for the petitioner, who is the respondent in this Court and who is the tenant of the flat which at, the time of this dispute was the subject-matter of a requisition order dated September 11, 1946, which had been made by the appellant on behalf of Government. The preliminary point goes to the jurisdiction of this Court to hear this appeal at all. Mr. Taraporewalla submits that no appeal from an order of this character lies to this Court because it, is not a judgment within the meaning of that word in Clause 15 of the Letters Patent. The alleged contempt is a disobedience of an injunction and there is no question but that this is a 'procedural contempt,' as opposed to being a 'criminal contempt' (see Banncrjee v. Kuchwar Lime and Stone Company, Limited: Secretary of State v. Kuchwar Lime and Stone Company, Limited (1938) 41 Bom. L.R. 137. If Mr. Taraporewalla's submission was right, it would seem that short of the Privy Council granting special leave to appeal, no appeal at all would be possible from an order of committal made by a single Judge of a High Court, see Section 111 of the Civil Procedure Code, though such an appeal would lie to the Privy Council under Section 109 of the Code from a committal order passed by a bench of the same High Court, see Bannerjee's case. That would be a very curious position, and one which it can scarcely be supposed that the Legislature intended.

5. We have been referred to a great many eases in various High Courts, containing much learned discourse on whether the particular orders respectively dealt with in the cases was a judgment 'inter partes,' and raising questions as to its finality' or its interlocutory nature. But the principal case relied upon by Mr. Taraporewalla for the assertion that no appeal lies is Narendrabhai v. Chinubhai (1936) 88 Bom. L.R. 571. That case, which is a decision of this High Court of the learned Chief Justice, Sir John Beaumont, and Mr. Justice Rangnekar, was an attempt to appeal to this Court from the refusal of the trial Court to commit for contempt for an alleged breach of an undertaking. In his judgment the learned Chief Justice said (p. 573):

This Court has always acted upon the definition of 'judgment' given by the Calcutta High Court in the case of The Justice of the Peace, for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 where Conch C.J. said (p. 452):-

We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.

It is difficult to sec how an order of the Court refusing to commit a man for breach of an undertaking given to the Court can be said to affect the merits of any question between the parties.

The undertaking is given to the Court: if it is broken, and that fact is brought to the Court's notice, the Court may take such action as it thinks fit. If it comes to the conclusion that the order has been deliberately broken, it will probably commit the defaulter to jail, but the Court is free to adopt such course as it thinks fit.

And Mr. Justice Rangnekar, after referring to the case of The Justices of the Peace for Calcutta v. The Oriental Gas Campany, said (p. 574);-

Does the order appealed from decide any question between the parties and determine any right or liability On the notice of motion there was, in my opinion, no question between the parties. Proceedings for contempt are matters entirely between the Court and the person alleged to have been guilty of contempt. No party has any statutory right to say that he is entitled as a matter of course to an order for committal because his opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted, and if the Court thinks that it was so, then the Court in its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application for contempt raises any question between the parties, so that any order made on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties.

6. In spite of the weighty grounds of this decision, I do not think that the learned Judges intended to lay down anything more than was decided in that case, viz. that no appeal lies to this Court from the refusal of a Judge to commit for a procedural contempt. That, if I may respectfully so say, seems to be sound sense, since it would be vexatious if a party to litigation could pursue applications to commit his opponent for contempt of Court to the Court of Appeal, when the trial Court whose process it was alleged had been disobeyed was of opinion that no vindication of its own order was necessary. But wholly different circumstances arise when a party has been committed for his contempt perhaps to suffer six months' rigorous imprisonment, it would be strange if he was to be deprived of all rights of appeal except by special leave of His Majesty in Council. There is a finality about such an order, which excludes any interlocutory flavour and, be it observed that all the researches of counsel have failed to find any case, in any High Court, in which leave to appeal against an order for committal has been refused. Directly in point is a decision of the Madras High Court of Gundu Venkatalingam v. Mrutyanjayadu [1944] Mad. 197 in which it was held that an appeal lay to the High Court from the order of a single Judge committing a person to prison for breach of an undertaking given to the Court; I respectfully agree with this decision, see also Budhu Lal v. Chattu Gope I.L.R. (1916) Cal. 804. In my opinion an appeal lies to this Court within the meaning of cl, 15 of the Letters Patent from the order of a single Judge committing a party to prison or ordering him to pay a fine for disobedience of the order of the Court, because such an order is final. Further it is inter partes to this extent that the Court does not usually move suo motu in procedural contempts. It deals with them on motion of a party to the proceedings, as in the case in the appeal before us, and such party can, if he fails, be ordered to pay the costs.

7. Turning to the facts of this case. At about 9-45 a.m. on the morning of September 28, which was a Saturday, an officer from the Requisition Department of Government, some police-officers and Dr. Laxmanan, for whose superior officer the flat was intended, went to the flat in question, which is on the second floor of the building, In order to enforce the requisition order of September 11, They found the flat locked up and could not get any response from inside, but after a short while a Sikh gentleman and two ladies came up from the lower floor and stated that they were the guests of the tenant and were living in the flat. They refused on request to produce any key. They asked for some time to get in touch, which they apparently did, by telephone with Mr. Nadkarni, the agent of the tenant, who is the respondent in this Court. Some delay was granted and then the police said that they could wait no longer and would break open the door. Resistance was offered by one of the ladies but finally at about 10-45 the police broke the lock and forced an entry. They were followed into the flat by the Sikh gentleman and the two ladies, who said they wanted to look after some of their belongings. There is no doubt that Mr. Nadkarni and his solicitors visited the flat after this entry by the police had been made. The Sikh gentleman in his affidavit, filed on the motion to commit in support of the petitioner, says:

I requested those people (i.e., the Police, Requisitioning Officer and Dr. Laxmanan) to wait and in the meanwhile I went to the adjoining flat to phone Mr. Nadkarni who informed that he would come to the flat within a short time. I returned to the flat and informed the Police Officers, Dr. Laxmanan and Government representative that Nadkarni was coming to the flat and requested them to wait for some time. The officers however did not wait and they ultimately broke open the lock.

The lock was opened in spite of requests made by me to the officers to wait for some time. I had also informed the officers that Nadkarni had been to the office of the petitioner's attorneys to affirm an application for injunction and that he was expecting to get the necessary injunction order within a short time.

Then a little later:-

Mr. Nadkarni thereafter came to the flat along with his solicitor who informed the police officer and Dr. Laxmanan that an application for injunction was about to be made at the bungalow of the Hon'ble Mr, Justice Bhagwati.

8. This confirms the evidence filed by the appellant's witnesses, and there cannot be the slightest doubt that when Mr. Nadkarni and his attorney went to the Judge's bungalow to get an interim injunction, they well knew that the police had broken into the flat and had taken possession by force. It is clear from Mr. Nadkarni's affidavit, filed on September 30, in support of the rule nisi against the appellant, for alleged contempt, that this fact was suppressed from the learned Judge.

9. The affidavit of Mr. Nadkarni is a dishonest affidavit, for in it he says:

I and my attorney saw the Police Inspector who was waiting outside the flat as also the Government representative and the said Dr. Laxmanan and told him that an application for injunction was about to be made at the bungalow of His Lordship the Hon'ble Mr. Justice Bhagwati within 15 minutes, and the said order would immediately be communicated to them. In the meanwhile they were requested not to take possession of the flat.

10. That clearly conveys the impression that the police had not forcibly entered the flat. I have little doubt that if the learned Judge had been told the true facts, he would never have made the interim injunction at all. The whole course of these proceedings has been tainted by the dishonest representations which were made to the learned Judge in the first instance. The injunction granted was in this form:-

It is further ordered that an interim injunction has been granted in the meantime and until the said 30th day of September 1946 restraining the respondent above-named from executing and/or enforcing the requisition order bearing No. PG. 62A mentioned in the petition or from taking any steps in execution or enforcement of the said order or from taking possession of the flat No. 13 of the 2nd floor of Rupayatan Building situate at 69 Marine Drive, Bombay, either from the petitioner or from the said V.V. Nadkarni.

11. I cannot part with this form of order without remarking that the slovenly expression, 'and/or' should never appear in an order of the Court; it is wholly ambiguous and leaves the precision of the order in considerable doubt.

12. What happened thereafter was that Mr. Nadkarni and his attorney went to the appellant's office and apprised him of the interim injunction. The appellant was in some doubt how to proceed, because he was not sure what had happened at the flat; as appears from the affidavits he was receiving some conflicting accounts on what the position really was. I will refer to his own affidavit filed on October 17. The facts as therein stated by him are not in dispute:-

As the Requisitioning Inspector in the beginning had already stated in the presence of the Petitioner's attorney that the locks had been broken, the flat entered and possession taken by Dr. Lakshmanan that morning and as the petitioner's attorney did not deny that Dr. Lakshmanan was in the flat with the Police and the inventory was being drawn up, I gained the impression that the only point at issue was that of possession and whether the possession acquired by Dr. Lakshmanan by breaking the locks in the presence of the Government representative and entering was to to be considered actual possession, as I understood was the position in law. In spite of this however and in order to give effect to the direction in the note book which obviously conceived that possession had not been secured I directed the flat should be locked up by the Requisitioning Inspector and the petitioner also should be allowed to put his lock on the doors. This direction was given on the basis that the possession already obtained by Dr. Lakshmanan, representing the Surgeon General, was legal and actual but in spite of that should be treated as one of disputed possession which should be left for the High Court to adjudicate on Monday 30th of September. My direction was given in the presence of the petitioner's attorney, Mr. Nadkarni and the High Court Officer and I repeated this direction so that there should be no mistake.

And a little further on:

At that stage I received a telephone call from the Deputy Secretary, Revenue Department, informing mo that he had heard from Dr. Lakshmanan and that possession of the flat had, in fact, been actually secured. I thereupon informed the petitioner's attorneys of the information received by me and after reconsidering the position stated that the verbal direction which I had just given could no longer hold good and I then wrote the order which is referred to in my affidavit of October 8, 1940. My reason for making this change was that in view of this latest information I became as it were, functus discretion and hence could not concede that the possession was merely a disputed one but was bound to consider that Dr. Lakshmanan was in possession. The facts as it were took control and all that remained was to record as a spectator what had happened. I informed the Requisitioning Inspector that having regard to the latest information showing that possession had been secured he should maintain possession and go on with the inventory. The petitioner's attorneys requested that I should revert to the position of treating possession as being one of disputed possession, but I informed them that I could not do so in face of the information received by me from the Deputy Secretary, Revenue Department.

13. That order to the Requisitioning Inspector was in fact not carried out, as there were communal disturbances in the City and no police were available from not duty. Dr. Lakshmanan felt unable to retain possession unaided and left the Sikh gentleman in undisputed possession of the Hat. So that in fact no breach of the injunction ever took place, but apart from this, I am most clearly of opinion that in the circumstances, and upon the information available to him, the appellant, when he gave the order to lock up the Hat and to take an inventory, did not wilfully disobey the interim injunction of the Court. On the view which he was entitled to hold, having regard to the telephone conversation that he had received from the Deputy Secretary, Revenue Department, who was his superior officer, it is clear that Government could be held responsible to the contents of this flat which the police had broken open. To hold the status quo till September 30, when the matter would come before the Court, common prudence demanded that some security measures should be taken, and by ordering the inventory to be taken and the flat to be locked up Mr. Davies was doing nothing more, for be it observed that in directing the locking up of the flat, he was also excluding Dr. Lakshmanan and the Surgeon General for whose occupation the flat had been requisitioned.

14. In my judgment the learned Judge was in error in finding the appellant guilty of contempt and that order must be set aside and the fine if paid restored.

15. Various procedural points have been taken by the Advocate General. It is stated that four days' notice of the rule nisi was not given to the appellant and that the affidavit of Mr. Nadkarni was not served with the notice of motion, but on the view of this matter which we take, it is unnecessary to go into these points, and I will only observe that in all cases in which the liberty of the subject is at stake it is essential that the procedural rules should be strictly complied with.

16. The respondent to this appeal must pay all the costs of these proceedings including the costs of this appeal.

Chagla, J.

17. On the preliminary point as to whether an appeal lies, there has been a long and continuous controversy in the different High Courts as to the true meaning to be given to the expression 'judgment' in Clause 15 of the Letters Patent. I. should have thought that, apart from authority, an order of committal for contempt was a judgment within that definition. The order undoubtedly constitutes final adjudication. It affects the merits of the case and it also determines the right and liability of the appellant. Let us therefore consider whether there is anything in the reported decisions which are contrary to the view I am suggesting. The definition given by Sir Richard Couch, Chief Justice, in the two Calcutta decisions is considered to be a locus classicus as far as the definition of the expression 'judgment' is concerned in Clause 15 of the Letters Patent. The first of these decisions is reported in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433. That was a case where an order was made directing the issue of a writ of mandamus to the Justices of the Peace for Calcutta to compel them to refer to arbitration question of compensation, and the question arose whether an appeal lay from that order, and Sir Richard Couch said in his judgment (p. 452):-

We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability.

18. In the subsequent decision reported in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub: Rohima Bye v. Hadjee Mahomed Joosub (1874) 13 Beng. L.R. 91 the interpretation was slightly extended and the learned Chief Justice said (p. 101):-

A judgment 'is not a mere formal order, or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have.'

In that case the learned Chief Justice was considering an order refusing to set aside an order granting leave to sue to the plaintiff under Clause 12 of the Letters Patent.

19. The Madras High Court has always given a more liberal interpretation to the expression 'judgment,' and the leading case is the one reported in Tuljaram Row v. Alagappa Chettiar I.L.R. (1910) Mad. 1 where we have the judgment of Sir Arnold White, and the opinion of that learned Chief Justice as to the true meaning of the expression 'judgment' is (p. 7):

If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause.

20. This High Court has always preferred to follow the Calcutta High Court rather than the Madras High Court: or, in other words, it has undoubtedly given a more restricted meaning to the expression 'judgment' than the Madras High Court has done-see the observations of Sir Basil Scott, Chief Justice, in Miya Mahomed v. Zorabi (1909) 11 Bom. L.R. 241 .

21. Our attention has been drawn to a recent judgment of a divisional bench in Vaijayantappa Shirsappa v. Anasuya (1939) 42 Bom. L.R. 377 in which Mr. Justice Wassoodew at p. 379 observed that the definition given by Sir Arnold White in Tuljaram Row v. Alagappa Chettiar was a good working test for determining what a 'judgment' is under Clause 15 of the Letters Patent. With respect, I think Mr. Justice Wassoodew has struck a rather discordant note because the current of authority of this High Court has consistently preferred to follow the definition given by the Calcutta High Court in the two cases to which I have referred rather than to the definition given by the Madras High Court through its Chief Justice Sir Arnold White. But I may point out that there is nothing sacrosanct or immutable about the definition given by Sir Richard Couch, and the Calcutta High Court itself in Budhu Lal v. Chattu Gope I.L.R.(1916) Cal. 804 has taken the same view of that famous definition. Chief Justice Sanderson in that case observed that the definition given by Sir Richard Couch is not exhaustive, and Mr. Justice Mookerjee has also expressed his opinion that that definition is after all not a statutory definition nor is it an inflexible or exhaustive definition.

22. Coming to the decisions of this Court, we start with the decision reported in Navivahoo v. Narotamdas Candas I.L.R(1882) . 7 Bom. 5. In that case a division bench of this Court consisting of Sir Charles Sargent, Chief Justice, and Mr. Justice Melvill took the view that a criminal contempt was a 'judgment' within the meaning of Clause 15 of the Letters Patent and, therefore, an order of committal was appealable. With respect, the divisional bench obviously erred in not looking at the exact terms of Clause 15 of the Letters Patent because it took the view that the only orders which were excepted were those not being a sentence or order passed in a criminal trial whereas the exact language used is not 'criminal trial' but 'criminal jurisdiction.' Therefore obviously an order of committal for a criminal contempt is not an order which is appealable under Clause 15 of the Letters Patent. But what is to be noted is that the division bench did take the view that an order for committal was a 'judgment' within the meaning of Clause 15 of the Letters Patent.

23. The next case is the one reported in Narayanrao Vithal v. Solomon Moses 35 Bom. L.R. 9. That again was a case of a criminal contempt. Mr. Justice Rangnekar had committed the appellant for publishing comments upon a pending trial, and the question arose before Sir John Beaumont, Chief Justice, and Mr. Justice Blackwell whether an appeal lay from that order; and the Court came to the conclusion that no appeal lay as it was not a civil but a criminal contempt. What is to be noted is that it was conceded by the Advocate General who appeared before that bench that the order was a 'judgment' within the meaning of Clause 15 of the Letters Patent; but what was urged was that it was made in the exercise of criminal jurisdiction and, therefore, not appealable.

24. Then we come to the decision which has created some difficulty, and that is the decision reported in Narendrabhai Sarabhai v. Chinubhai Manibhai 38 Bom. L.R. 571. The order with which the divisional bench of Sir John Beaumont, Chief Justice, and Mr. Justice Rangnekar was concerned was refusing to commit a person for breach of an undertaking given to a Court, and the Court held that no appeal lay from such an order. It is difficult to see how such an order could possibly be a 'judgment' within the meaning of Clause 15 of the Letters Patent and give the right of appeal to a person who had moved the Court for contempt and had failed to get an order for committal. It is impossible to say that any right or liability of the appellant was determined by the order of committal. The appellant had no right to get such an order from the Court, It was the discretion of the Court, and the Court having refused to exercise its discretion, the appellant could not say that any right of his was affected or any liability imposed upon him. Therefore on the facts of the case that decision is clearly distinguishable from the facts before us where the appellant has been ordered to pay a fine and has been held to be guilty of contempt. It cannot be disputed that in this case the appellant's rights are undoubtedly affected and that a liability has been imposed on him on a final adjudication by the learned Judge. But it is contended by Mr. Taraporewalla that the decision in Narendrabhai v. Chinubhai is of wider import than the facts on which it was decided. It is suggested that that decision lays down that there is no appeal from any order made by a Judge in contempt proceedings whether he refuses to commit or whether he makes a committal order. I refuse to read that judgment of the Court of Appeal in that light. What is contended is that that judgment relies on the definition given by Sir Richard Couch, Chief Justice, and it is argued that the decision of Mr. Justice Bhagwati is not a decision between parties and, therefore, it cannot constitute a judgment. Now it is to be remembered that most of the decisions reported in the books dealing with the definition of 'judgment' were cases between parties and usually the question that fell to be determined was whether a certain order was final or interlocutory; and if interlocutory, whether it was 'judgment' within the meaning of Clause 15 of the Letters Patent. What we are concerned with here is not the case of a 'judgment' given between parties in a litigation between parties but a 'judgment' given against a party which affects his rights. It would be clearly wrong to apply a definition given in its own context applicable to its own facts and circumstances to an entirely different set of facts and circumstances. The expression 'between the parties' in the definition of Sir Richard Couch is not an integral part of that definition. Therefore, in my opinion, in deciding that an appeal lies from an order of committal, we are in no way deviating from the accepted definition of Sir Richard Couch to the extent that that definition deals with the essentials and fundamentals of the expression 'judgment' occurring in Clause 15 of the Letters Patent. As I have already pointed out, the order of Mr. Justice Bhagwati affects the merits of the question by determining a right or liability. It is not between parties, but that it could not be because the contempt proceedings were between the Court and the appellant and not between the appellant and the respondent. Sir Richard Couch did not intend and could not have intended that any decision affecting the rights of a party against which the Court has made an order could not be a 'judgment' merely because there was no other party to those particular proceedings.

25. It is also to be noted that the Madras High Court in Venkatalingam v. Mrutyanjayadu [1944] Mad. 197 has expressly held that there is an appeal from an order of committal, and here again it is worthy of note that in the judgment it was assumed that an order of committal was a 'judgment' within the meaning of Clause 15 of the Letters Patent. The only discussion was as to whether it was a civil or a criminal contempt. Similarly, the Calcutta High Court itself in Mohendra Lall Mitter v. Anundo Coomar Mitter I.L.R(1897) Cal. 236 . in a full bench decision, has gone further than the Madras High Court and has held that even an order refusing to commit is appealable. It is indeed strange that the Calcutta High Court should have gone further than the Bombay High Court's decision reported in Narendrabhai v. Chinubhai, when the famous definition of its own Chief Justice is being requisitioned in order to ask us to hold that even an order for committal is not appealable. As the learned Chief Justice has just pointed out, there is no decision of any High Court which has held that an order of committal is not appealable. On the contrary, as I have pointed out, it has always been assumed and conceded that an order for committal is a 'judgment' within the meaning of Clause 15 of the Letters Patent. The only question that the Courts have considered is whether it was a civil contempt or a criminal contempt. In my view, therefore, an order for committal in contempt proceedings is a 'judgment' within the meaning of Clause 15 of the Letters Patent and an appeal lies from such an order.

26. On merits I should be extremely reluctant to interfere with the discretion of a learned Judge especially in contempt proceedings. But, in my opinion, with very great respect to Mr. Justice Bhagwati, he is clearly in error when he came to the conclusion that the appellant was guilty of contempt of Court.

27. In the first place, I am not at all satisfied that what the appellant did constituted a contravention of the learned Judge's order. All that he did was to direct some one to make an inventory and to lock the door of the flat. That direction was never carried out. The contempt could not possibly lie in what he directed; the contempt must lie in what actually happened, and nothing happened which could possibly be suggested as being the contravention of the learned Judge's order. Assuming that his mere direction was a contravention of the learned Judge's order, even so the Court has got to be satisfied that that contravention was contumacious in character and that it was a wilful disobedience of the order of the Court; and, in my opinion-and I will not again review the facts which the learned Chief Justice has done-it is patent on the record that what the appellant did was certainly not contumacious or not done with a view to defy the order of the Court. Whether the appellant was or was not in possession of the flat may be a matter of opinion. But it is clear that the appellant took the view that the Government was in possession on information supplied to him-an information supplied from the highest authority. The appellant came to the bona fide conclusion that the Government was in possession of the flat and the direction he gave was merely in order to protect the interests of Government which, according to him, was in possession of the flat at that moment. Under the circumstances, again with respect to the learned Judge, it is difficult to understand how one could possibly come to the conclusion that in doing what he did, the Collector committed a contempt of the Court.

28. I, therefore, agree with the learned Chief Justice that the appeal should succeed.

Dixit, J.

29. I agree. In view of the importance of the question raised by the preliminary objection, I desire to add a few words.

30. The preliminary objection is that no appeal lies from the order complained of and the determination of that question must depend upon the answer to another question, which is, what is the meaning to be given to the expression 'judgment' as used in Clause 15 of the Letters Patent. Now, there is no statutory definition of that expression. But the expression has been judicially interpreted in various decisions. Some of the cases give the expression a narrower definition, while others give the expression a wider definition. The former definition is illustrated in cases of which The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433 is the leading authority while the latter definition is illustrated in cases of which Tuljaram Roto v. Alagappa Chettiar I.L.R(1910) Mad. 1. is the leading authority. This Court in Narendrabhai v. Chinubhai : AIR1936Bom314 as also in previous cases has adopted the narrower definition given in The Justices of the Peace for Calcutta v. The Oriental Gas Company.

31. In The Justices of the Peace for Calcutta v. The Oriental Gas Company the principle which is propounded is as follows:

32. The word 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability, and which may be either final or preliminary or interlocutory.

33. That meaning of the expression 'judgment' has been adopted in later cases of the Calcutta High Court until in 1917 the case in Budhu Lal v. Chattu Gope I.L.R. (1917) Cal. 804 gave the expression 'judgment' a wider meaning. In the last mentioned case it was held that the order appealed against was a 'judgment' within the meaning of Clause 15 of the Letters Patent, and that there was a right of appeal. The order appealed against arose under the following circumstances. Sanction to prosecute the plaintiff in a civil suit in the Presidency Small Cause Court for making a false claim and for making a false statement in an application for leave to institute a suit, was refused by a Judge of that Court. The defendant, thereupon, applied to the Original Side of the High Court for a reversal of the order and obtained an order of remand to the Small Cause Court Judge. The plaintiff appealed against the order of remand and it was held that the order appealed against was a 'judgment', within the meaning of Clause 15 of the Letters Patent. At p. 815 of the report Mr. Justice Mookerjee observed as follows:

It is not necessary for our present purpose to refer to the numerous judicial decisions which embody an attempt to define or elucidate the meaning of the term judgment as used in Clause 15 of the Letters Patent, and which were analysed by me in the case of Mathura Sundari Dasi v. Haran Chandra Saha I.L.R.(1915) Cal. 857; but I desire to emphasise this point that the definition given by Sir Richard Couch, while it furnishes a useful test, is not a statutory definition and cannot be deemed inflexible and exhaustive. In every case where the Court is called upon to decide whether the decision under appeal is or is not a judgment within the meaning of Clause 15 of the Letters Patent, regard must be had to the nature and the contents of the order. It may not be easy to reconcile all the reported decisions, on their special facts, or to draw a dividing line between different classes of cases, such as Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub: Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 B. L.R. 91 and Ebrahim v. Fuckhrunnissa Begum I.L.R. (1878) Cal. 531. But the present case is reasonably free from difficulty and I entertain no doubt that the appeal is competent.

34. This case at any rate shows that the Judges in Budhu Lal v. Chattu Gope were not prepared to give the expression 'judgment' that restricted meaning which was given to it in The Justices of the Peace for Calcutta v. The Oriental Gas Company. A wider definition of the expression 'judgment' is given in Tuljaram Row v. Alagappa Chettiar. In that case it was held that an order of a single Judge on the Original Side refusing to frame an issue asked for by one of the parties was not a judgment within Clause 15 of the Letters Patent and was not appealable. With regard to the meaning to be given to the expression 'judgment', White C.J. observed as follows (p. 7):-

Speaking generally I think the word 'judgment' means any 'final order, decree or judgment' within the meaning of those words as used in Section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of Section 15 of the Letters Patent, On the other hand I am not prepared to say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas Company and in Sonbai v. Ahmedbhai Habibhai (1872) 9 B.H.C.R. 398 it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding.

35. Although this Court has uniformly adopted the meaning of the expression 'judgment' as given in The Justices of the Peace for Calcutta v. The Oriental Gas Company, Mr. Justice Wassoodew in the case reported in Vaijayantappa Shirsappa v. Anasuya (1989) 42 Bom. L.R. 377 appears to have quoted with approval the case in Tuljaram Row v. Alagappa Chettiar. At p. 879 the learned Judge after citing the Madras case observed as follows:-

That is apparently a very much wider definition than the one given in The Justices of the Peace for Calcutta case and in my opinion it is a good working test for determining what a'judgment' is under Clause 15 of the Letters Patent. The criterion of finality of the decision involved in the test gives it the connotation of a decree. In Jeranchod v. Dakore Temple Committee : (1925)27BOMLR872 their Lordships of the Privy Council observed that the term 'judgment' in Clause 39 of the Letters Patent, 1865, means, in civil cases, a decree, and not a judgment in the ordinary sense. Those provisions are analogous to the provisions Of Clause 15.

36. In view of the authorities to some of which I have referred above and of numerous other decisions cited at pages 1401 to 1403 of Mulla's Code of Civil Procedure, 11th edition, 1941, it is a somewhat difficult task to get at a precise definition of the expression 'judgment' as used in Clause 15 of the Letters Patent.

37. The learned Advocate General contends that for a decision in order to amount to a judgment within Clause 15 it is not necessary that there should be two parties to the decision and that it is enough if the decision involves the determination of some right or liability. On the other hand, counsel for the respondent contends that that position is wrong, particularly in view of the decision reported in Narendrabhai v. Chinubhai, to which I will refer in a moment. It may not be seriously disputed that the decision which is appealed from is not a decision between the parties. But the fact remains that the decision is one which does affect the right of the appellant as also his liability for contempt which is alleged to have been committed by him. If the argument for the respondent is to be accepted, viz. that a decision in order to be a judgment within Clause 15 must be a decision between the parties, one may have to ignore what has been held by their Lordships of the Privy Council in Bannerjee v. Kuchwar Lime and Stone Company Limited: Secretary of State v. Kuchwar Lime and Stone Company Limited (1938) 41 Bom. L.R. 136. In that case the order appealed from was an order made by the Patna High Court against the appellant among others for disobeying an order of injunction made by the High Court, It will appear from page 144 of the report that in that case a preliminary objection was raised by the respondents which was that the contempt in both cases or at any rate in the case of Ghose and Bannerjee was of the nature of a criminal matter, that the leave granted was granted under the Civil Procedure Code, and that inasmuch as it was in the wrong form, the Board should hold on the authority of Radha Krishan Das v. Rai Krishn Chand 3 Bom. L.R. 469 that leave had not properly been given. It was not urged before their Lordships that no appeal lay from the order complained of because there were no two parties to the decision. The only objection was that the contempt was of a criminal nature and that leave granted under the Civil Procedure Code was irregular. The objection failed and the appeal was allowed. It is to be remembered that this case has been followed in Venkatalingam v. Mrutyanjayadu [1944] Mad. 197. It was held in that case that an order passed by a single Judge of the High Court committing a person to prison for contempt of Court on the ground that he broke an undertaking given to the Court that he would not alienate any of the properties which were the subject-matter of an appeal, which undertaking had been given to avoid an order for security being passed against him, was a 'judgment' within Clause 15 of the Letters Patent and was not an order in a criminal proceeding, within the meaning of the said clause and that an appeal lay against such an order.

38. Reverting back to the case in Bannerji v. Kuchwar Lime and Stone Company, Limited: Secretary of State v. Kuchwar Lime and Stone Company, Limited, the position is this. If the argument for the respondent is right, it would mean that an appeal will lie from an appellate bench of the High Court to their Lordships of the Privy Council in a case where the High Court had made an order granting an application for contempt of Court whereas if an appeal is to be preferred from a similar decision of a single Judge sitting on the Original Side of the High Court, that decision would not amount to a judgment within Clause 15 of the Letters Patent so as to make it appealable. I think that would be a most illogical position.

39. The only difficulty which may at first sight confront the appellant is the case reported in Narendrabhai v. Chinubhai. But that case is, in my opinion, distinguishable on facts. There the order appealed from was an order refusing to commit a man for breach of an undertaking given to the Court and it was held that it did not affect the merits of any question between the parties and was not, therefore, a judgment within the meaning of Clause 15 of the Letters Patent and that, therefore no appeal lay from such an order. In that case the case reported in Mohendra Lall Mitter v. Anundo Coomar Mitter I.L.R.(1897) Cal. 236. was cited. But this Court was not prepared to follow that decision because the Calcutta High Court gave no reasons in support of its decision. If, therefore, the present case was analogous to the facts appearing in Narendrabhai v. Chinubhai, it would be a question whether or not the case was correctly decided. But actually the facts were different and the case is easily distinguishable.

40. But on general principles, it may be almost impossible to resist the conclusion that if an appeal lies from an order refusing an application for contempt of Court, as was the position in Mohendra Lall v. Anundo Coomer Mitter, though this Court differed from that view, it seems to me that it is all the more reasonable to hold that an appeal would lie from an order granting an application for contempt of Court. It may be that such an order is not one between the parties, but all the same, it is a decision which affects the right or liability of the party found to be guilty of contempt, and to hold that in such a case the person found to be guilty of contempt has no remedy by way of an appeal would amount to a denial of justice. There is no inherent right in any person to make an appeal. The right of appeal must be given by statute. In the present case the decision of the learned Judge is, in my opinion, a judgment within Clause 15 of the Letters Patent and therefore an appeal lies.

41. On the merits, I have nothing to add to the judgments just delivered.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //