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Kilachand Devchand and Co. Vs. Ajodhyaprasad Sukhanand - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 789 of 1933
Judge
Reported inAIR1934Bom452; (1934)36BOMLR992
AppellantKilachand Devchand and Co.
RespondentAjodhyaprasad Sukhanand
Excerpt:
contempt of court - notice of motion-notice to state particulars-service of notice-high court rules, original side (1930), rule 340-receiver appointed by court-obstruction to receiver-contempt-person guilty of contempt residing outside jurisdiction of high court but in british india-whither high court could hear notice of motion against such person-civil procedure code (act v of 1908), sections 2(14) and 36.; rule 340 of the high court rules, original side, which is applicable to all notices of motion, does not provide that when a notice of motion is lodged with the prothonotary and senior master it acquires the character of a process of the court and requires to be served accordingly.; a notice of motion for contempt of court is a proceeding of a criminal nature, and it is obligatory on.....kania, j.1. this is a notice of motion taken out by the plaintiffs calling upon defendants nos. 1 and 2 and one shamlal gomatwalla to show cause why they should not be committed to jail for having committed contempt of this court by interfering with the possession of the receiver, mr. nandlal kilachand, and having assaulted his men, or caused them to be assaulted, at the place commonly known as the sukhanand shiamlal ginning and pressing factory at debai on november 21, 1933. shamlal gomatvalla is not a party to this suit, mr. nandlal kilachand was appointed a receiver in this suit under a consent order made by this court on june 29, 1933. it is alleged that to the knowledge of defendants nos. 1 and 2 and the said shamlal, the receiver had taken possession of the ginning and pressing.....
Judgment:

Kania, J.

1. This is a notice of motion taken out by the plaintiffs calling upon defendants Nos. 1 and 2 and one Shamlal Gomatwalla to show cause why they should not be committed to jail for having committed contempt of this Court by interfering with the possession of the receiver, Mr. Nandlal Kilachand, and having assaulted his men, or caused them to be assaulted, at the place commonly known as the Sukhanand Shiamlal Ginning and Pressing Factory at Debai on November 21, 1933. Shamlal Gomatvalla is not a party to this suit, Mr. Nandlal Kilachand was appointed a receiver in this suit under a consent order made by this Court on June 29, 1933. It is alleged that to the knowledge of defendants Nos. 1 and 2 and the said Shamlal, the receiver had taken possession of the Ginning and Pressing Factory, and, thereafter, the three persons mentioned above assaulted the receiver's men and ousted them.

2. On behalf of the respondents four preliminary objections have been taken to this notice of motion. It is, first, alleged that the service of the notice of motion was effected at Khurja through the attorneys' clerk and the same is, therefore, not in order. It is next contended that in the notice of motion sufficient particulars are not given and, under the circumstances, the same is bad. It is, thirdly, contended that the order appointing Mr. Nandlal Kilachand receiver has not been served on any of the respondents and, therefore, the motion is not maintainable. On behalf of Shamlal it is further contended that as he is not a party to the suit and is not a resident within the jurisdiction of this Court, the plaintiffs are not entitled to take out this notice of motion against him as the Court has no jurisdiction over him. I shall deal with these points in the order in which they have been put before me.

3. In support of the first objection about service it is pointed out that, under the High Court Rules, all processes should be served by the Sheriff or his bailiffs. The only authority given to the attorneys' clerk to effect service is in respect of a chamber summons and that is by virtue of the express provision of Rule 78. It is, therefore, contended that an attorneys' clerk is not entitled to serve the present notice of motion on any of the respondents. I am unable to accede to that contention. In respect of the processes of the Court, the High Court Rules of the Original Side provide for the service through the Sheriff and his bailiffs. Rule 76 provides as follows:

The mode of proceeding in Chambers on any application, when notice is required to be given shall, unless otherwise ordered or provided by the rules of the Court, be by summons. Such summons shall be prepared by the party obtaining it or his attorney.

Sub-rule (ii), which is important for the present consideration, is as follows:

A summons, other than an originating summons, shall in the first instance and on payment of the proper stamp fee, be presented at the office or registry for being entered. And when so entered, it shall be deemed to be issued without any separate fiat of the Judge or Prothonotary and Senior Master in regard thereto but shall bear an office or registry stamp denoting the fact of such entry, and a copy of such summons shall at the time be lodged with the Prothonotary and Senior Master....

Having regard to the terms of this sub-rule it is evident that, although the summons does not bear the signature of the Judge or the Prothonotary and Senior Master, by reason of its being filed and entered in the Prothonotary's Office, it is deemed to be issued by the Court. By reason of this sub-rule, therefore, the summons becomes a process of the Court and its service through the attorneys' clerk is regulated by r.78. A notice of motion is taken out under Rule 340 which runs as follows:

Applications in Court for injunctions, receivers and other interim relief in a cause shall be made by notice of motion. A notice of motion shall be in Form No. 8 with such variations as circumstances may require. Where special leave to serve it is obtained, the fact shall be so stated in the notice of motion. A copy of every notice of motion shall be lodged with the Prothonotary and Senior Master.This rule, which is applicable to all notices of motion, and under which the present application is made, does not in terms provide that when the notice of motion is lodged with the Prothonotary and Senior Master it becomes a process of the Court. Therefore, in spite of the fact that a notice of motion is so lodged under this rule, it continues to be a notice given by one party to the other and it does not acquire the character of a process of the Court and require to be served accordingly. Under Rule 341 it is incumbent on the applicant only to prove that the notice of motion was served on the respondent at least four clear days before it is brought on for hearing, and provided that fact was established, the manner in which the notice of motion was served would be immaterial. Under the circumstances the first contention of the respondents fails.

4. A notice of motion for contempt of the Court is a proceeding of a criminal nature and under the circumstances it is obligatory on the party who applies to the Court to state the precise acts complained of in the notice of motion. It is not permissible not to mention those particulars in the notice of motion and leave the respondent to ascertain, if he can, from the affidavit relied upon in support of the motion what the charges are. This principle is accepted in Jayantilal v. Waman : AIR1932Bom638 . The terms of the present notice of motion clearly indicate the name of the receiver, the place at which the alleged cause of complaint took place, the nature of the complaint and also the date. In the present case the complaint is that the receiver's possession was disturbed by the respondents assaulting the receiver's men at the place and on the date mentioned in the notice of motion. I do not think it is obligatory on the plaintiffs to mention the evidence by which the charges made by them in the notice of motion are going to be supported. The particulars given in the present notice of motion appear to me to be sufficiently clear to inform the respondents to prepare themselves to meet the charge. I am unable to consider the particulars, as given in the notice of motion, insufficient, and, therefore, this contention of the respondents fails.

5. It is next urged that the order appointing the receiver was not served on any of the respondents, and, therefore, the application must fail. Strong reliance is placed in this connection on judgments where it is laid down that, before a notice of motion for contempt is taken out and heard, it is obligatory on the applicants to prove that the original order, of which the respondents are alleged to have committed the contempt, was served on them personally. In considering the observations in the various cases dealing with this point, it is necessary to bear in mind the nature of the complaint made by the applicant. In Halsbury's Laws of England, (2nd Edn.), Vol. VII, the subject of Contempt of Court, Attachment and Committal is discussed. Contempt of Court, as generally understood and treated in the law-books, consists of contempt of superior Courts of record, represented by the High Court of Justice. Contempt of Court is either (1) criminal contempt, consisting of words or acts obstructing or tending to obstruct the administration of justice, or (2) contempt in procedure, consisting of disobedience to the judgments, orders, or other process of the Court, and involving a private injury. The criminal contempt, i.e., the first part, has special characteristics and could be divided into contempt in the face of the Court, speeches or writings tending to defeat the ends of justice, obstructing persons officially connected with the Court or proceedings, obstructing parties, forging or abusing the process of the Court and breach of duty by persons officially connected with the Court or proceedings. Contempt in procedure, not accompanied by circumstances of misconduct, is a contempt in theory only and the respondent may be ordered to pay the costs of the application. In circumstances involving misconduct, contempt in procedure partakes to some extent of a criminal nature, and then bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest. Misconduct of this kind consists in disobedience to orders for the payment of money or in wilful disobedience to any order or process, or in the breach of any undertaking given to the Court. The case of interference with or obstruction to a receiver appointed by the Court is treated as a contempt of a criminal nature falling within the first category. Therefore, the fact that the order appointing him was improperly procured is held to be no justification for interference or disturbance to his possession. The Court jealously guards the possession of its officer, and therefore cases in which an action of ejectment is brought against a receiver without the leave of the Court that appointed him, or taking forcible possession of estates of the rents and profits of which a receiver has been appointed, or by issuing without the leave of the Court a sequestration of the profits of a living of which a receiver has been appointed previously, or levying an execution upon partnership assets in the possession of a receiver or taking management out of his hands, are considered contempt's of a criminal nature. See Angel v. Smith (1804) 9 Ves. Jun. 335, In re Battersby's Estate (1892) 31 L.R. Ir. 73, Broad v. Wickham (1831) 4 Sim. 511, Hawkins v. Gathercole (1852) 1 Drew. 12, Lam v. Sterne (1862) 3 Giff. 629, and Ex Parte Hayward: Re Plant (1881) 45 L.T. 326.

6. It further appears that in respect of the charges which could be brought under the heading of 'Criminal Contempt' it is obligatory on the applicant to show that the respondent knew of the possession of the person, e.g., the Court receiver, against whom the offence had been committed and knowing of such possession had tried to interfere. In those cases it does not appear to be necessary to prove that the order of appointment was served on the respondent. In other words in those cases it is not a matter of infringement of any order, but the actions of the respondents are challenged on the ground of interference with the administration of justice and with its officers. The authorities show that in cases of contempt in procedure when the complaint is of a breach of a specific order or where the applicants seek the enforcement of the terms of an order and the complaint is that in spite of knowledge the respondents did not carry out the terms of the order, it is necessary that the copy of the order should be personally served on the respondents before a charge of contempt can be brought against them. The reason behind this rule appears to be that the party is entitled to know the exact terms of the order which he is alleged to have disobeyed, and before he is made aware of it he could not be held liable in contempt. If this difference in the two kinds of contempt is borne in mind, the various decisions of the Courts in England, where the law on this point is more often discussed, could be easily explained.

7. This being the rule underlying the law of contempt, it is only necessary in a case of the present nature for the applicant to show that the respondents were aware of the appointment of the receiver and that to their knowledge the receiver had taken possession of the particular property with which the respondents had attempted to interfere. If the two facts are established by evidence, it is immaterial to consider whether the order appointing the receiver was served on the respondents or not. It should be noted that this is not a case where the alleged contempt consists of a refusal by a party to deliver possession of any property to the receiver, but the complaint is that after the receiver, to the knowledge of the respondents, had taken possession, his possession was deliberately disturbed by the respondents. In the former case it is obvious that before a party could be held liable in contempt it has to be shown that the order of appointment of receiver was served on him and thereafter when the receiver called upon him to deliver possession he did not do so. In other words the contempt would consist in not obeying an order of the Court. From the fact of the receiver having been appointed, it does not necessarily follow that the parties had moved the Court officer to act upon it, and in fact the property had gone into the possession of the receiver. Therefore, the mere knowledge that a receiver had been appointed would not be sufficient to establish a case of criminal contempt.

8. Defendants Nos. 1 and 2 were aware of the order appointing Nandlal Kilachand receiver, as the order was made with their consent on June 29, 1933. In Fripp v. Bridgwater and Taunton Canal Company (1855) W.R. 356 a receiver was appointed and he took possession of certain property. One Capt. Beadon, who was not a party to the suit, claimed to be entitled in his own right to certain portions of the property of which the receiver had taken possession. It was shown that the Captain had applied to the receiver to deliver up that portion of the property to him, and in support of that put forward a document on which he relied to prove his title. He was informed that in order to establish his claim he would have to apply to the Court for permission and some correspondence took place in that connection. Thereafter some trees were cut down in the garden by the order of the defendants' agent in that suit and the following morning they were removed by Capt. Beadon on the other side of his property. There was further correspondence and remonstrance and Capt. Beadon then dug a trench which he contended was necessary to enable him to carry out the repairs in respect of certain mills of which he was the owner. He stated that he had no intention of doing anything which would be contempt of the Court or of taking possession of the cottage and garden. Wood V. C. held that Capt. Beadon had interfered with the possession of the receiver and, although he was not a party to the suit, was guilty of contempt. That is a clear authority to establish that a person knowing that the Court receiver was in possession of the property cannot interfere with impunity with that possession, and if he does so, he is guilty of contempt. I think, therefore, that the service of the order appointing the receiver on the respondents is not a condition precedent to the motion for contempt alleged to have been committed in the present case by interfering with the possession of the receiver.

9. The last contention urged by Mr. Maneckshaw, on behalf of Shamlal, is that the notice of motion cannot be issued against him. This contention is based on two grounds : (1) that there is difficulty in enforcing the order which the Court may make against his client inasmuch as Shamlal is not a resident within the jurisdiction of this Court nor does he carry on business within the said limits; and (2) that this Court has no jurisdiction to issue a notice of motion against a person who is neither a resident within its jurisdiction nor carries on business within those limits. In support: of his contention he relies on the decision in Salam Chand Kanayram v. Joogul Kishore Ramdeo (1927) 32 C.W.N. 114. I think that the point is not free from doubt. As regards the alleged difficulty in enforcing the order I have no doubt on the point Shamlal is a resident of British India and such order as the Court might make on this notice of motion could be transmitted for execution to the District Court where he ordinarily resides. The order made on a notice of motion of this kind would be an order within the meaning of Section 2(14) of the Civil Procedure Code and could, therefore, be executed under Section 36 of the Code. In my opinion Section 36 is not limited to orders made only under the Code, but is applicable to all orders which could be included in the definition of the term 'order' as defined in Section 2(14). Moreover, the order which the Court can make on a notice of motion of this kind is not necessarily for the arrest of the defaulting respondent. The Court has jurisdiction to impose a fine also. I, therefore; think that this contention of Mr. Maneckshaw is unsustainable.

10. The case of Salam Chand v. Joogul Kishore was somewhat peculiar, and that case has left open the question which I have got to consider here. In that case an order for the arrest of a certain person for contempt of Court was made by the High Court on its original side but the warrant directed to the Sheriff failed to take effect as it was found that the man was at Nadia outside the original civil jurisdiction of the High Court. An application was, thereupon, made to the Judge on the original side for an order, either under Section 136 of the Civil Procedure Code or in exercise of the inherent jurisdiction, on the District Judge at Nadia to execute the said warrant. That application was refused by the trial Court and also by the Appeal Court. Rankin C.J. in delivering judgment expressly refrained from expressing an opinion on the point which now arises before me. The learned Chief Justice, in the course of his judgment, observed as follows (p. 116):

The question of the Court's power derived from the old Supreme Court to arrest for contempt of Court a person in the Mofussil has not been argued before us and I make no pronouncement with regard to that.

At the end of the judgment, in considering the difficulty in executing an order of arrest made by a Judge sitting on the original side of a person outside the limits of its original civil jurisdiction, it was observed as follows (p. 117):

That, however, was not touched upon in the arguments before us and it is a question upon which it is not necessary now to pronounce any opinion.

In that case the Judge on the original side had already ordered the issue of a warrant against the defaulting respondent and, as I have pointed out above, the application was one to have the order executed either under Section 136 of the Code or in the exercise of the inherent jurisdiction to direct the District Judge at Nadia to execute the warrant. The terms of Section 136 expressly show that that section applied only to orders made under the Code, and as an order of arrest for contempt was not made under any provision of the Code, any action under that section was not permissible. The second part of the application also could not be entertained because a Judge sitting on the original side, in the exercise of the inherent power, has no jurisdiction to direct a District Court to execute a warrant. The jurisdiction over the District Courts which is vested in the High Court is to be exercised by the appellate side of the High Court and the authorities clearly show that a Judge sitting on the original side does not constitute the High Court for this purpose. If the assistance of the District Judge was required to enforce the order, as pointed out by Rankin C.J., the application, if at all, must be made to the appellate side. That case, under the circumstances, does not touch the question which I have got to consider here.

11. In my opinion, if the Court has jurisdiction to make an order, it has necessarily jurisdiction to enforce the order and the law does not allow its machinery to be clogged in this respect. In National Telephone Co. Limited v. Postmaster-General [1913] A.C. 546, Viscount Haldane L.C. stated (p. 552):

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach,....

Relying on this case, in Narayana Iyengar v. Desika Chariar I.L.R(1933) Mad. 35 it was held that once a Court is given jurisdiction, the necessary consequences flow from its exercise of such jurisdiction, without any express words, and, therefore, the Court's order can be enforced in the usual way in which orders made by the Courts are enforced. In matters of contempt the jurisdiction of the Court is somewhat larger, and this is recognised in Navivahoo v. Narotamdas Candas I.L.R (1882) 7 Bom. 5, where it was expressly held that an order for attachment for contempt is not an order made in the exercise of the High Court's civil jurisdiction. On that ground that case was distinguished in Raja of Ramnad v. Seetharam Chetty I.L.R(1902) Mad. 120. In Salam Chand v. Joogul Kishore, Rankin C. J. also considered that the observations of the Court in Raja of Ramnad v. Seetharam Chetty in distinguishing the case of Navivahoo v. Narotamdas Candas lend support to the contention that an order of arrest for contempt, being in its nature criminal, that jurisdiction is wider than the jurisdiction of the High Court on its original side to execute its decree by arrest.

12. The question of jurisdiction over Shamlal in these proceedings is, however, not free from doubt. Although, under the Indian Penal Code and under the Criminal Procedure Code, steps could be taken by the receiver to safeguard his possession as against persons who attempt to interfere with the same, I do not think the criminal law contained in those two Acts is wide enough to include all kinds of interference with the receiver's possession which would constitute a criminal contempt as recognised in law. Under the circumstances it becomes necessary to consider whether the Court has jurisdiction in this respect as against a party who is residing in British India, and is, therefore, subject to the jurisdiction of another British Indian Court, although he may be outside the original civil jurisdiction of this Court. The authorities show that a Judge sitting on the original side has jurisdiction to appoint receivers of properties outside the original civil jurisdiction of the High Court, and the English authorities further show that receivers could be appointed of properties even within the territories of other monarchs. The question, whether the receivers so appointed could take possession of those properties or not is different from the jurisdiction of the Courts to appoint receivers of those properties. This High Court has recognised the jurisdiction of a Judge sitting on the original side to appoint receivers of properties in British India but outside its original civil jurisdiction, and such orders have been enforced. The question which arises is, whether the Court has any power to protect its own possession after such an order is carried out. No authority which can help me on this point is cited at the bar. The decision in Harivallabhdas Kalliandas v. Utamchand Manikchand (1870) B.H.C.R. (O.C.J.) 172 shows that contempt proceedings were adopted against defendants in that suit who had failed to deliver over property to the receiver appointed by this Court by a Judge sitting on the original side, even though the defendants were residing within the territories of H. H. the Gaekwad of Baroda. Although in that case proceedings were adopted against a party to the suit, the report shows that the defendants were residents within the territories of H. H. the Gaekwad of Baroda, i.e., outside British India. The question which arises for consideration is, whether there is any difference in a case where a resident in British India is not a party to the suit. In principle I do not see any difference. Because a defendant is a party to the suit the Court has assumed jurisdiction over him in respect of the disputes between the parties as contained in the pleadings. The question of contempt is not a dispute which arises between the parties in respect of the dealings as contained in the pleadings, but is a matter to be adjusted between the Court on the one hand and the respondent on the other and that dispute may arise in respect of property which is outside the original civil jurisdiction of the Court. I do not, therefore, see any difference in, principle to be applied in assuming jurisdiction in contempt proceedings in cases where the defaulting respondent is a defendant in the suit or an outsider. It need not be emphasized that the Court may act with reluctance in matters where outsiders are concerned, and may leave the receiver to seek the protection of the local Courts to safeguard his possession. Realising perhaps the difficulty of enforcing the orders in certain contingencies, the Court may refrain from issuing an order against the defaulting respondent. These considerations, however, cannot affect the question of the jurisdiction of the Court. They relate only to the exercise of the jurisdiction of the Court, once that jurisdiction is established. In my opinion, as all subjects in British India are bound to obey the laws of British India and to recognise the authority of Courts established by the laws prevailing in British India, a British Indian subject is not entitled to commit a breach of that law with impunity so as to defy the order of the Courts. The possession of this Court, whether it is within the limits of its original civil jurisdiction or outside, continues to be the possession of the Court, and, therefore, any person who attempts to disturb that possession, would, in my opinion, be liable to account to this Court for his action. In cases of criminal contempt, I do not see any reason to refrain from holding that the Court has jurisdiction to call upon a defaulting respondent to account for his acts provided, on the facts, the Court considers that it is proper to do so. To hold otherwise, in my opinion, would lead to serious consequences. For instance, a man residing at Bandra, and, therefore, not ordinarily a resident within the original civil jurisdiction of this Court, and who does not carry on business within those limits, would not ordinarily be liable to the original civil jurisdiction of this Court although to meet his friends and for other purposes he may be coming to Bombay every day. If the contention of Shamlal is upheld, if that person disturbs the possession of a receiver appointed by this Court at Bandra in respect of property situated there, he could do so with impunity if his acts do not constitute an offence under the Indian Penal Code. I do not think that the jurisdiction of the Supreme Courts in respect of criminal contempts is so limited as to enable such a person to escape the consequences of his acts. I, therefore, hold that the Court has jurisdiction to hear this notice of motion against Shamlal who is a resident in British India, and is, therefore, governed by the laws of British India.

13. [On the merits, his Lordship then held that the Court was unable to come to the conclusion that the receiver's men were assaulted as alleged.]

14. In his affidavit to show cause against the notice of motion, Shamlal alleges that he was not at Debai on November 21. He further says that in the firm which owns these factories there are several partners, and the partners, other than the defendant firm, had appointed Shamlal to manage the said factory. He further says that the receiver's men were not in possession of the factory at Debai and that he took possession of the factory as the manager. It further appears that proceedings under Section 145 of the Criminal Procedure Code were adopted by Morarji as the receiver's agent against Shamlal and others, and in those proceedings the local Magistrate at first gave possession to Morarji but thereafter deprived Morarji of the possession and gave possession to Shamlal. The proceedings under Section 145 are still pending. Under the circumstances, I do not think it would be proper to proceed with this notice of motion against Shamlal. If the receiver feels aggrieved that his possession has been disturbed, it is open to him to proceed under the Indian Penal Code, and that remedy is not debarred by my disposing of this motion by not making any order against Shamlal.

15. My order on this motion is made on the affidavits which are here before me and on the basis that on those affidavits the Court is unable to come to the conclusion affirmatively that the receiver's men were assaulted as alleged. The burden of proving these allegations is on the receiver, and as on the present affidavits alone, unsupplemented by any further materials which the receiver may have, I am not satisfied that the burden of proof is discharged I make no order on the notice of motion.

16. As the respondents do not press for costs, I make no order also for costs.


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