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Kapil P. Mohmed Vs. S. Anthony - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtMumbai High Court
Decided On
Case NumberContempt Petition No. 81 of 1983
Judge
Reported in1984(2)BomCR199
ActsContempt of Courts Act, 1971 - Sections 2 and 8; Code of Civil Procedure (CPC) (CPCP), 1908 - Sections 2(2), 9 and 9A - Order 7 - Rule 10 , Order 43, Rule 1
AppellantKapil P. Mohmed
RespondentS. Anthony
Appellant AdvocateV.C. Kotwal, Adv. and ;Shellim Samuel & Co.
Respondent AdvocateP.R. Naidu, Adv. for respondent No. 1 and ;Kaiser Shroff, A.G.P., for respondent No. 2
Excerpt:
contempt of court - disobedience - sections 2 and 8 of contempt of courts act, 1971 and sections 2 (2), 9 and 9 a and order 7 rule 10 and order 43 rule 1 of code of civil procedure, 1908 - receiver was appointed by order dated 08.02.1983 passed by trial court in respect of suit shop - such order was passed by consent and with view to protect suit property belonging to plaintiff and to grant interim relief to plaintiff pending decision of preliminary issue relating to jurisdiction - defendant was ordered to pay arrears of compensation and further compensation per month - order dated 08.02.1983 was confirmed in appeal - defendant never denied his liability to pay arrears within time as ordered by trial court nor did he pay arrears - defendant did not dispute validity of order dated.....sharad manohar, j.1. this contempt processing was required to be instituted on account of the gross kind of contempt which, according to the respondent, he is entitled to commit by telling the court that he is entitled to flout the order of the court with impunity. the facts which will be presently mentioned will reveal the gross character of the contempt.2. the petitioner before me is the plaintiff in the suit filed by him in the city civil court against the present respondent who is the defendant in the said suit. for the sake of convenience the parties will be referred to hereafter as the 'plaintiff' and the 'defendant'. the plaintiff is a lessee of a portion of the land belonging to the bombay port trust, near the clock tower, at the entrance of sasoon dock, colaba, bombay. on the.....
Judgment:

Sharad Manohar, J.

1. This contempt processing was required to be instituted on account of the gross kind of contempt which, according to the respondent, he is entitled to commit by telling the Court that he is entitled to flout the order of the Court with impunity. The facts which will be presently mentioned will reveal the gross character of the contempt.

2. The petitioner before me is the plaintiff in the suit filed by him in the City Civil Court against the present respondent who is the defendant in the said suit. For the sake of convenience the parties will be referred to hereafter as the 'plaintiff' and the 'defendant'. The plaintiff is a lessee of a portion of the land belonging to the Bombay Port Trust, near the Clock Tower, at the entrance of Sasoon Dock, Colaba, Bombay. On the portion of the said land he has constructed shops and, according to him, he was conducting his fish business in one of the shops in the name and style M/s. General Fisheries (India). According to the plaintiff, about three years before the date of filling of the suit (Short Cause Suit No. 6446/81) the defendant asked for his permission to sit in one of the shops belonging to the plaintiff and to sell fish in the same by payment of a commission to the plaintiff on its sale. This permission was granted and the arrangement continued for about one year. According to the plaintiff, thereafter the defendant got permission from the plaintiff to do the work of processing of fish in the said shop. For the purpose of the said arrangement, the paraphernalia for carrying out the processing work was to be supplied by the plaintiff and the defendant was to be given use of the said paraphernalia and of the shop for the purpose of fish processing work. A sum of Rs. 50/- for every 200 kgs. and 25 paise for every additional Kilogram were the processing fees to be paid by the defendant. The defendant started using the premises in this manner and continued to do the fish processing work with the help of the paraphernalia supplied by the plaintiff.

According to the plaintiff, this arrangement continued for about 6 months, that is to say, the defendant paid the processing charges as agreed above for that much period. But thereafter he stopped paying the dues and over and above that he started residing in the said shop and thus committed an offence under the Bombay Municipal Corporation Act. It is the plaintiff's grievance that he also indulged in offence under the Food Adulteration Act. Hence, a notice dated 25-3-1981 was given by the plaintiff to the defendant calling upon him to vacate the premises within a week from the date of the notice and he asked to stop to do the processing work. By his reply dated 10-4-1981 the defendant contended that he was in occupation of the fish shop for the last four years as a tenant, selling fresh fish in the same. He also claimed that he was staying in the same with members of his family and was paying Rs. 1,200/- per month to the plaintiff in that behalf although the plaintiff did not issue any rent receipt is connection with the said payment. He also made the same grievance regarding the disconnection and cutting off of electricity supply.

Some correspondence seems to have ensued between the parties subsequently but that has no relevance with the question to be decided in the present petition.

3. In view of this evidence dispute, the plaintiff filed the instant suit, out of which these proceedings arose, on 17th July, 1981. The plaintiff contended that in the suit premises the defendant was allowed only to do this processing work with the help of fish processing paraphernalia belonging to the plaintiff. In the suit, the plaintiff appears to be denying that the defendant is either a tenant or a license protected under the Rent Act. His contention is that the defendant has been in arrears of the amount payable by him for a period of 18 months before the date of the suit. According to the plaintiff, electricity bill was to be paid by the defendant which he had failed to pay and that the electrical supply has been disconnected by the B.E.S.T. on that account in December 1979. He contended that the license given by him for processing of the fish in the said shop was withdrawn or terminated and that, hence, the plaintiff is entitled to require the defendant to vacate the suit premises. In the suit, the plaintiff has asked for possession of the suit premises. The plaintiff has also claimed arrears of the amount payable as processing charges from the month of November 1979 to June 1981.

4. After filing the suit, the plaintiff took out a Notice of Motion for the reliefs which will be presently mentioned.

Prayer (a) of the Notice of Motion is that the defendant should be ordered to pay a sum of Rs. 30,000/- being the arrears of processing charges payable by the defendant to the plaintiff from November 1979 to June 1981 at the rate of Rs. 1500/- per month.

By payer (b), it is prayed that the defendant should be ordered to deposit a sum of Rs. 1500/- per month from the date of the suit till the recovery of possession as processing charges.

By prayer (c) an injunction is sought restraining the defendant from parting in any way, with the possession of the suit premises or from disposing of the same or from inducting any third party into the suit premises.

By prayer (d), it is prayed that pending the hearing of the suit, Receiver should be appointed with all powers under Order 40, Rule 1 of the Civil Procedure Code.

The main contention of the defendant by way of defence to the Notice of Motion was that the City Civil Court had no jurisdiction to entertain the suit in view of the provisions of section 41 of the Presidency Town Small Causes Courts Act. On merits, he denied certain agreements relating to amount of processing charges or compensation. His main contention, however, is that he was a tenant in respect of the suit premises or at least was a protected licensee in respect of the same, protected by the provisions of the Bombay Rent Act and, that, hence, the suit against him for recovery of possession was not competent in the City Civil Court, having regard to the provisions of section 28 of the Rent Act read with section 41 of the Small Causes Court Act.

5. The said Notice of Motion was decided by the learned Judge of the City Civil Court on 8-2-1983. He rightly decided to set down the jurisdictional question to be decided as a preliminary issue. However, the learned Judge found it necessary, since the decision on the said question might call for leading of evidence and that there was bound to ensure some delay on that account as also even otherwise, that the interest of both, the plaintiff as well as of the defendant should be protected in the meantime. This is what the learned Judge has observed in para 15 of his order on the said Notice of Motion :

'Since the defendant has taken the plea of the jurisdiction by way of application spelt out in the affidavit in reply, section 9-A of the Civil Procedure Code will come into force. As stated by me earlier the section 9-A is sufficiently discussed in. The decision reported in : AIR1982Bom263 , on the principle laid down is that Bombay decision is binding upon me. But at the same time that word of caution is given in that decision and if I find that exigency of the situation impresses the Court either of the parties should be protected without wasting any time. However, little time it may be, which may be consumed for determining the said preliminary issue even then, I can on merits grant such interim relief as I think proper. As I have stated earlier findings on jurisdiction said cannot be decided at this state prima facie on the affidavit filed in this notice of motion and I do not want to take decision of jurisdiction merely on affidavit. With a view to give fair opportunity to the plaintiff and also the defendant the issue of jurisdiction should be on evidence of both the sides, all necessary material and evidence oral as well as documentary. For this purpose evidence will have to be led of both the parties on this preliminary issue to be decided on evidence. The parties will have to disclose documents and file affidavit of documents and it will take sometime to decide the jurisdiction. Bit in the mean time I should not keep in abeyance the interim relief prayed on this notice of motion. It is an admitted position that defendant is not paying any compensation or rent after the filing of the suit which was filed on 17th July, 1981. The defendant is doing the business in the suit premises without paying any rent to anybody, even to the B.P.T. I do not want that the defendant should carry on the business in the suit premises scot free. If the plaintiff succeeds on jurisdiction then there is nothing to show on behalf of the defendant that he has paid monthly rent of Rs. 40/- per day from January 1981. If the plaintiff succeeds on jurisdiction point, the defendant will be liable to pay all arrears of rent. On the defendant's own saying there are contradictory dates upto which he has made payment. In view of this and on principles laid down in : AIR1982Bom263 I should protect the plaintiff till the decision on the preliminary issue.'

Taking this view of the matter, the learned Judge was not inclined to grant prayer (a) of the Notice of Motion of payment of the arrears at the rate of Rs. 1500/- per month at that stage in toto. But it is not disputed that he did grant it partly that is from January 1981 and at the rate of Rs. 1200/- per month. This he did while dealing with prayer (b). As regards prayer (b), it appears that before the learned Judge there was no dispute that the defendant was in arrears of the processing charges from the month of January 1981. Dispute was only about the rate. The plaintiff claimed the amount at the rate of Rs. 1500/- per month whereas the defendant's contention was that the monthly amount payable by him was Rs. 1200/-. It was, thus, clear before the learned Judge that the defendant was admittedly in arrears from the month of January 1981 till the date of the suit at least at the rate of Rs. 1200/- per month. He, therefore, ordered that the defendant should pay sum Rs. 30,000/- (for 25 months) during, period between 1-1-1981 to 31-1-1983. Five months, time was given to the defendant to pay the said amount. Prayer (b) of the Notice of Motion was also allowed, but the defendant was directed to pay current compensation at the rate of Rs. 1200/- per month during the pendency of the suit. Prayer (c) of the Notice of Motion for injunction restraining the defendant from parting with possession of the suit premises was also granted.

6. But what is more important is that even prayer (d) of appointing Receiver in respect of the suit property was granted, by the said notice of motion, the Court Receiver was appointed for taking possession of the suit shop. The learned Judge has stated that the defendant had no objection to the appointment of Receiver provided the defendant was allowed to use the premises as a Receiver provided the defendant was allowed to use the premises as a Receiver's agent on payment of Rs. 1200/- per month. This appointment of Receiver was, thus, made by consent and the defendant was appointed as Receiver's agent on his agreeing to pay a sum of Rs. 1200/- per month to the Receiver. The amount of current compensation for the month of February was to be paid on or before 5th March 1983 and the amount for the subsequent month was to be paid on or before the 5th of each subsequent month.

Against this order, the defendant filed A.C. No. 182 of 1982 to this Court. The said appeal was dismissed on 14-3-1983. There was some dispute before me as to whether the time for making payment was extended by this Court. The contention of the respondent in this petition is that he asked for extension of time for the payment Rs. 1200/- whereas the contention of the petitioner/plaintiff is that time to pay the arrears of Rs. 30,000/- was sought to be extended. However, Mr. Kotwal the learned Counsel for the petitioner fairly stated that from the record of the appeal he could not ascertain the exact nature of the order, if any, passed by this Court in that behalf. However, the entire question as to for what purpose time was sought to be extended and whether time was extended by this Court at all or not is more or less academic (except for a limited purpose which will be presently mentioned) because it is not the contention of the respondent/defendant that there was any extension of time for the payment of the amount of Rs. 30,000/- and that he has paid the amount within the time extended. The position that is not denied is that so far as the amount of Rs. 30,000/- is concerned, there is an order passed by the trial Court directing and ordering the defendant to deposit the said sum of Rs. 30,000/- in the Court and that order has been blatantly disobeyed by the defendant even though he has taken advantage of the said order for the purpose of remaining in possession of the suit shop and the position is that even till 12th October 1983, the defendant has continued to contend that not only that he has not paid the amount but that he is not under any legal liability to pay the amount, the order passed by the trial Court and confirmed by this Court notwithstanding.

7. The preliminary issue regarding the Court's jurisdiction was decided by the learned Judge on 24-8-1983. He held that having regard to the provisions of the amended section 41 of the Presidency Small Causes Court Act, the City Civil Court can have no jurisdiction to entertain the suit filed by a landlord against the tenant or by a Licensor against the Licensee for possession of the suit premises. The learned Judge, therefore, passed an order returning the plaint for presentation to the proper Court.

Appeal from Order No. 680 of 1983 was filed by the plaintiff against the said order. It was admitted on 20-9-1983 after hearing both the plaintiffs as well as the defendants quite at length. Similarly C.A. 2764 of 1983 was filed by the plaintiff for stay of the operation of order under appeal. The application and the order passed on the same have some bearing upon the fallacious point raised by the misguided contemnor, the aspect of which will be elucidated by me presently. But at this stage it may be stated that it was during the hearing of the said application that the learned Counsel for the plaintiff pointed to the Court the manifest contempt of Court committed by the defendant by wilfully flouting the order of the trial Court to pay the arrears of Rs. 30,000/-. The Counsel contended that the defendant has enjoyed the advantage of the order by remaining in possession of the suit premises as Receiver's agent, that he had even filed an appeal against the said order directing him to pay the arrears of Rs. 30,000/- which appeal was dismissed by this Court. It was further pointed out that the said order of payment of Rs. 30,000/- was a part and parcel of the condition subject to which the defendant was allowed to occupy the suit premises as the Receiver's agent and non-compliance with the said order even after taking advantage of the same constituted a very serious disobedience of the Court's order and a very grave category of contempt of Court. During the arguments, I tried to persuade Mr. Naidu not to advise his client to resort to such flouting of Court's order. But Mr. Naidu was adamant in contending that the order passed by the Court as early as on 8-2-1983 and confirmed by this Court on 14-3-1983 was an order wholly without jurisdiction and hence, his client, the defendant, was entitled to ignore the same wholly, with impunity. Mr. Naidu was persistent in contending that this was the correct position of law and he made it clear before me that in this view of the legal position, he was unable to advise his client to pay any part of the said amount of Rs. 30,000/- which was payable by his client as arrears of compensation for earlier period. In this view of the matter, I myself directed Mr. Kotwal, the learned Counsel for the plaintiff/petitioner to file an appropriate contempt petition against the respondent/defendant. This direction was given by me not only after hearing Mr. Naidu at length but even ad nauseam and the direction was given very much in the presence of Mr. Naidu and his client the contemnor. In these circumstances Mr. Kotwal agreed to file the contempt petition before me within about two days and the above contempt petition was filed by him on 22-9-1983.

I have referred to Civil Application No. 2764 of 1983 filed by the plaintiff/appellant in A.O. No. 680 of 1983 for stay of the operation of the order under appeal, dated 24-8-1983. In the said application a prayer was also made that the defendant/respondent may be ordered to comply with the terms and conditions of the order of the trial Court dated 8-2-1983 and to deposit the arrears and the current charges as per the said order. The said application appears to have been filed on 13th September, 1983 itself when A.O. No. 680 of 1983 was filed. On the said application, Rule was issued and order of interim stay, as prayed for, was passed on 26-9-1983. The rules was made returnable on 3-10-1983.

The contempt petition was thereafter placed for rule before me on the same day 26-9-1983. Mr. Kotwal continued to appear on behalf of the plaintiff/petitioner and Shri Naidu continued to appear on behalf of the defendant/contemnor. Since I had already passed an order staying the operation of the trial Court's order dated 24-8-1983 which held that the City Civil Court has no jurisdiction to entertain the plaintiff's suit, I asked Mr. Naidu as to whether he still continued to contend that the order dated 8-2-1983 was without jurisdiction. In this connection, I may point out that it has been Mr. Naidu's persistent contention that the order dated 8-2-1983 was not without jurisdiction when it was passed. His persistent contention has been that the order became one without jurisdiction only by virtue of the trial Court's decision and order dated 24-8-1983 holding that the City Civil Court has no jurisdiction to entertain the plaintiff's suit. It was in these circumstances that I pointed out to Mr. Naidu that since the operation of the said order dated 24-8-1983 was stayed, the order was, for all legal purposes non existent so long as the stay continues and, hence, the earlier order dated 8-2-1983 continued to hold the field, unaffected. But in spite of this effect on the part of the Court to make Mr. Naidu and his client see light, Mr. Naidu was adamant in contending that his client had no intention to respect the said order dated 8-2-1983 on the ground that the order was without jurisdiction. In this view of the patently unbecoming attitude adopted by the defendant-contemnor, on the advice of his Advocate, Mr. Naidu, I had no other alternative but to issue rule on the said contempt petition on 26-9-1983 itself. By consent, rule was made returnable on 3-10-1983.

By the said order, time was given to the defendant-contemnor to file his affidavit-in-reply to the petition, if he so desired, on or before 30-9-1983.

The affidavit was, however, not filed by the defendant-contemnor before 3-10-1983 when the contempt petition was to come up for hearing. I will have occasion to make reference to the contents of the said affidavit when I will be referring to the conduct of the learned Advocate for the contemnor in this case.

8. The petition reached hearing before me on 12-10-1983. After reading the return of the contemnor dated 3-10-1983 and after further hearing Mr. Naidu in justification of the contemnor's conduct, I was satisfied that this was a very serious case not only of non-compliance with the Court's order but of a studied and resolute determination on the part of the contemnor to escape his liability arising out of an order of the Court, validly passed. I further noticed that the contemnor was adopting this attitude entirely on account of the advice that he was receiving from his learned Advocate. I had already noticed that the order of appointment of Receiver of the suit premises was in fact passed by consent. The contemnor-defendant was appointed as Receiver's agent in pursuance of the self-same order of the Court, by which the Court Receiver was appointed and by which the defendant was appointed as the Receiver's Agent and was directed to pay the arrears of compensation and the current compensation at the rate mentioned in the said order. I had noticed that the contemnor in fact had enjoyed the benefits of the said order. It was impossible not to notice that in fact non-compliance with the order for payment of arrears of compensation within the period directed by the Court was itself the contempt of Court. Anomalously enough, the contemnor's learned Advocate had no quarrel with the proposition that the order of payment of arrears of compensation was not an order without jurisdiction at least till 23rd August, 1983. The said order has become final by virtue of the dismissal of the appeal from Order No. 182 of 1983 by this Court.

In all these circumstances, I was satisfied that the contemnor had no right to continue enjoying the benefit of the order and thereby to continue to remain in possession of the suit premises. By my order dated 12-10-1983, therefore, I directed the Receiver to take possession of the suit premises immediately. I am informed that a Letter Patent Appeal was filed by the contemnor against the said order and that the same has been dismissed by a Division Bench of this Court.

9. The contempt petition reached hearing before me on 12-10-1983. The factual position about the acts and omissions on the part of the contemnor was not in dispute. The factual position was that by the order dated 8-2-1983, the contemnor was directed to pay the arrears of compensation of Rs. 30,000/- within the period specified in the order and he was also directed to pay the current compensation at the rate specified in the order. By the same order, Receiver was appointed for taking possession of the suit property and the petitioner was appointed as the Receiver's agent. Evidently, the payment of arrears of compensation and payment of current compensation was a condition for his being appointed as the Receiver's agent. Against the said order, the contemnor had even filed an appeal which was dismissed. He had also asked for extension of time for payment of certain portion of the compensation. The appeal filed by the defendant was dismissed. There was no dispute that at least till 23rd August, 1983 the order directing the contemnor to be in possession as the Receiver's agent and to pay arrears of compensation and the current compensation was a perfectly valid and legal order. There was further no dispute that if the said order was in any way affected by the subsequent order of the trial Court dated 24-8-1983, the operation of the later order was stayed by the order of this Court dated 26-9-1983.

In the background of this factual position, Mr. Kotwal, the learned Counsel for the petitioner contended that this was a case of studied and wilful contempt of Court on the part of the contemnor.

10. Most of the arguments of Mr. Naidu on behalf of the contemnor were somewhat remarkable. His first contention was that the appeal against the order returning the plaint for presentation to the proper Court was not maintainable. Secondly, he contended that since the appeal was not maintainable, the order dated 24-8-1983 passed by the trial Court disowning its jurisdiction to entertain the suit had become final and, hence, the order of stay dated 26-9-1983 passed by me was of no legal consequence. Thirdly, he contended that the impugned order amounted to decree and, hence a First Appeal ought to have been filed and not an Appeal from Order. Fourthly, he relied upon the judgment of this Court reported in 1976, Maharashtra Law Journal, P. 457. Fifthly, he also relied upon the judgment of the Supreme Court reported in 1954, S.C.P. 340.

I will deal with each of the points separately. But at this stage I may point out that on merit, that is to say, on the question as to whether a non compliance with the order passed by the Court amounts to contempt or not, not even an attempt was made by Mr. Naidu to contend that such non-compliance would not amount to contempt of Court. No arguments were advanced even with a view to contend that the disobedience with the order was not wilful. Hence it followed that if the technical and jurisdictional pleas raised by Mr. Naidu failed, the contemnors had burnt his boats for escape from the legal consequence of or studied and deliberate act of disobedience of the Court's order.

11. But before dealing with the points raised by Mr. Naidu, I must state certain events that took place in the Court. After urging all the above mentioned pleas, most of which were purely technical, and after finding that he was unable to make any headway in the matter of convincing this Court about the legitimacy of his point, Mr. Naidu made a statement before the Court that his client was agreeable to pay the arrears of rent if some time was given to make such payment. I called upon Mr. Kotwal to state whether his client was agreeable to give time to the defendant and Mr. Kotwal was fair enough to state that if the contemnor was prepared to pay the arrears even at that stage, his client would not be insisting upon sending the contemnor to a civil jail even though the act of contempt on the part of the contemnor was complete. Upon the enquiry from the Court as to how much time he would be prepared to give, Mr. Kotwal mentioned a period of three months within which the arrears of rent of Rs. 30,000/- should be paid by the contemnor. Mr. Naidu on the other hand, wanted six months' time for making that payment. Having regard to the fact that the amount was somewhat on the heavier side for the contemnor, I was inclined to accept the offer made by Mr. Naidu. But I tentatively directed him to pay the said sum not in one installment after six months, but by monthly installments. Mr. Naidu agreed to the same. But thereafter he had discussion with his client and, all of a sudden, he informed that he wanted to withdraw from the proceedings because his client wanted to make his own statement before the Court. I declined to allow him to withdraw from the proceedings at that stage, but I allowed the contemnor to state before the Court whatever plea he wanted to make. But all that the contemnor wanted to state before the Court was that he was prepared to pay the amount not within six months, as earlier agreed by his Advocate in consultation with himself, but he wanted a full 15 months' time to pay the said amount of Rs. 30,000/-.

It was, thus, evident that the contemnor had been playing fast and loose with the Court and had no intention to respect the solemnity of the Court's proceedings.

In these circumstances, I had to pass the order directing the Receiver to take possession of the suit premises.

12. This judgment started on 15-10-1983. After it was partly dictated, Mr. Naidu interrupted and once again stated before the Court that his client was prepared to pay the entire amount within six months as earlier assured. He was prepared to give an undertaking to this Court in that behalf and was also prepared to tender an unconditional apology for, what he called, the mistake on his part. I may mention here that I had already held that the contempt on the part of the defendant was complete and, further, that it was the case of a studied, deliberate and gross contempt. Inspite of this view having been already expressed by me, Mr. Kotwal agreed even at this stage not to insist upon any penal order, provided the entire amount of arrears was paid by the contemnor strictly according to the schedule agreed upon. The understanding was that the entire amount was to be paid within six months from 15th October, 1983 in monthly installments. There was a question of interest payable on the said sum of Rs. 30,000/- but no understanding as such was arrived at in that behalf. I, therefore, thought it fit to give time to the parties to see as to whether any agreement could be arrived at on these various questions. Mr. Kotwal further contended that until the entire amount was paid by the contemnor, there would be no question of his being entitled even to apply for being appointed as the Receiver's agent and to take possession of the premises once again and he further contended that during the interregnum the petitioner/plaintiff should be allowed to enter into possession of the suit premises with a view to carry on his own business therein. I was inclined to consider this question, but at the time when this request was made, the learned Advocate for the contemnor was absent. I, therefore, directed Mr. Kotwal to give notice to the learned Advocate in this behalf and to make a proper motion to this Court thereafter. I must state that, on behalf of the petitioner/plaintiff applications were made before me both in the Court as well as in my chamber for an order that the possession of the premises, which admittedly belonged to the petitioner/plaintiff, should be given into his possession so that at the time of the on coming Diwali, the premises would not remain vacate and would not thus be wasted. The first application was made on 21-10-1983 in the Court and the second one was made one 24-10-1983 in my chamber. But on both the occasions Mr. Naidu, the learned Advocate for the contemnor, was absent and hence I did not think it proper to pass any order as prayed for in favour of the petition/plaintiff.

However, I directed that all these proceedings including this petition and the proceedings relating to the appeal should be placed before me on my Board at the time of the delivery of the judgment which was to continue when the Court opened after the Diwali vacation. On account of the hearing of the other proceedings, the judgment could not be started either on the 7th of November or on the 8th of November. But when the above mentioned application was renewed by the petitioner/plaintiff on 8th November, I directed that not only that the contempt petition should be placed on Board the next day for continuation of the judgment, but that the Court's Board should mention that the proceedings are kept before the Court also for orders. The Board of that day thus showed that the contempt petition was kept before the Court for both these purposes. Inspite of this position, even on the 9th of November no one appeared on behalf of the contemnor. In these circumstances, I had no other alternative but to pass an order in favour of the plaintiff/petitioner accepting his request to put him into possession of the suit premises as the receiver's agent until further orders. A speaking order in that behalf was passed by me on 9th November, 1983. The contempt petition was thereafter adjourned for continuation of the judgment to 10th November, 1983.

13. On 10-11-1983, the judgment started once again. But at this time, both the contemnor as well as his learned Advocate were present. On this occasion, Mr. Naidu once again displayed his admirable capacity for the vault-face. He informed the Court that his client had instructed him about his inability to pay the amount of Rs. 30,000/-. Not only that he made this statement but he wanted to argue further that inability to pay as per the order passed by the Court is itself a justification for contempt of Court. Finding that neither the contemnor nor his learned Advocate had the lightest regard for the solemnity of the Court's proceedings and finding that in these circumstances an elaborate judgment would be required to be delivered for which additional time would be necessary, and finding that in view of the changed nature of the sittings of the Court which would hamper the working of the other matters. I passed the final order in these proceedings on that date, namely 10th November, 1983 itself and the dictation of the remaining part of the judgment was adjourned. The final order is passed along with a separate speaking order dated 10th November, 1983. The operative part of the order, however, shall be set out by me at the end of this judgment.

14. I will now deal with the arguments advanced by Mr. Naidu in justification of the impugned acts and omissions on the part of the contemnor. His first contention is that the order dated 8-2-1983 was without jurisdiction and for the purpose of justifying this contention, reliance is placed by him exclusively upon the order dated 24-8-1983. In support of this contention, he placed heavy reliance on the judgment of a learned Single Judge of this Court in the case of Dwarkadas Mulji and others v. Shantilal Laxmindas Gandhi and another, 1980 Maharashtra Law Journal, P. 404. I may state here that this case is the sheet-anchor of Mr. Naidu's contention and I will presently point out the utter fallacy contained in the arguments based upon this authority. But before dealing with this point, it is necessary to mention the first point that was urged by Mr. Naidu. The refrain of his argument was that initially the order dated 8-2-1983 passed by the trial Court was an order with jurisdiction, but it continued to be so only until the preliminary issue was decided, and that since by the order dated 24-8-1983 the trial Court had found that it had no jurisdiction to grant any relief to the plaintiff, the earlier order dated 8-2-1983 by the same Court must be held to be without jurisdiction. I pointed out that the order had no investiture of finality not only because the appeal against the same was admitted by this Court but also because the operation of the same was specifically stayed by this Court by its order dated 26-9-1983 Finding himself confronted by this insuperable logic, Mr. Naidu contended that the appeal in which the stay order was passed by me was itself not competent. I pointed out that no such plea was taken by him at the time when the order admitting the appeal was passed by me. After hearing him at length, he contended that it was open for him to raise that plea even at this stage. However, it was just beyond him to place his finger on any provision of law by virtue of which the said Appeal from Order No. 680 of 1983 could be said to be incompetent.

A like contention was raised by him that the order dated 24-8-1983 returning the plaint for presentation to the proper Court was a decree and hence a First Appeal should have been filed and not an Appeal from Order, as done by the petitioner. Again, even at this stage, no provisions of the Code was brought to notice by the learned Advocate to justify this contention. The contentions were just hurled before the Court, almost suggesting to the Court either to take them or leave them.

Even though the contentions were raised airnly, I have to deal with them. The first part of the contention is that an order returning the plaint for presentation to the proper Court is a decree. It is impossible to find any justification for such a contention. A decree is defined by section 2(2) of the Civil Procedure Code as follows :---

'the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144.'

When a plaint is ordered to be returned for presentation to the proper Court, the rights of the plaintiff and the defendant are not determined at all, let apart being consciously determined. On the plain reading of the definition of decree, an order returning the plaint for presentation to the proper Court is not a decree.

But this position is further made clear by the fact that under Order 43, Rule 1(a) of the Code, an order returning the plaint for presentation to the proper Court is specifically made an appealable order. If it is an appealable order, it is futile to contend that it is a decree, because it is inconceivable that Code would provide that the same order would be a decree and an order other than a decree at one the same time.

This analysis also answers the other part of the contention namely, that the appeal is not competent. As stated above, the learned Advocate chose just to throw these points at the face of the Court. But it is really difficult to resists the employment of the expression that he did so without least concern for the requisite sense of responsibility. If he had not allowed his sense of responsibility to be given a miss, he would certainly have had a look at the provisions of Order 43, Rule 1(a) of the Civil Procedure Code which specifically makes an order for return of the plaint for presentation to the proper Court passed under Order 7, Rule 10 of the Code, an appealable order. Said Order 43, Rule 1(a) of the Code no doubt provides that the order passed by following the procedure under Rule 10-A of Order 7 is not appealable but it is nobody's contention that the procedure contemplated under Order 7, Rule 10-A was ever followed by anybody including the Court in this case. All that the Court has done is to decide the preliminary issue as to whether the Court has jurisdiction to entertain the suit having regard to section 41 of the presidency Small Causes Court Act and to hold that the Court has no such jurisdiction. The Court has also passed an order that the plaint should be returned for presentation to the proper Court. But nothing laid down under Rule 10-A of Order 7 is done by the Court in this connection. The order is passed as per the provisions of Order 7, Rule 10 simpliciter and such an order is specifically and unequivocally made appealable under Order 43, Rule 1(a) of the Code. The appeal is, therefore, perfectly competent.

If this is the position, then the further contenting that the application, for stay (Civil Application No. 2764 of 1983) was without jurisdiction and that the order of stay passed on the same dated 26-9-1983 in the said application was without jurisdiction are equally devoid of any substance. It is noteworthy that no such plea was raised by Mr. Naidu when the order was passed by me on 26-9-1983 after hearing him at length.

15. Once it is appreciated that the order passed by the Court in Civil Application No. 2764 of 1983 was within this Court's jurisdiction, then the result of the same is inescapable. The result is that the operation of the order passed by the trial Court holding that it has no jurisdiction to entertain the suit comes to an end temporarily. This means that the order ceases to be operative, for all legal purposes, until the said order of stay continues to be in effect. If, therefore, any jurisdictional defect ever attached itself to the order of the Court dated 8-2-1983, by virtue of the order dated 24-8-1983, the said jurisdictional defect disappeared at least until this Court's order of stay dated 26-9-1983 continued to be in force. It is, therefore, a futile contention on the part of Mr. Naidu that the order dated 8-2-1983 was inoperative for any of the reasons mentioned above.

16. This brings me to the sheet-anchor of Mr. Naidu's argument, namely that the order dated 8-2-1983 was passed by the Court having no jurisdiction to entertain the suit. In support of his contention, unduly heavy reliance was placed by Mr. Naidu upon the judgment of a learned Single Judge of this Court reported in 1980 M L J 404. In that case it was held by the learned Judge (Sawant, J.) that breach of an undertaking given in a proceeding which is void ab initio does not amount to contempt of Court. In that case, a suit was filed by the respondent in the Small Cause Court for restraining the petitioners from evicting him except by due process of law. When the suit came up for final hearing, the parties arrived at an agreement and as a result of it consent were filed in the Court. As per the consent terms, the respondent undertook to vacate the suit premises by 31-5-1979. However, before the expiry of the period given to the respondent to vacate the premises, the respondent made an application to the Small Causes Court for setting aside the said consent terms on the ground that the suit in which the said consent terms were filed was itself without jurisdiction. The said application was dismissed by the Small Causes Court but not on the ground that the respondent's contention was erroneous. The Court held that the Small Causes Court had no jurisdiction to entertain the respondent's own suit for injunction restraining the defendant in that suit from dispossessing the respondent. The Court held that the Court of Small Causes had no jurisdiction to entertain the suit of such a declaratory character. The Court, therefore, held that the suit itself was without jurisdiction and, hence, the consent terms filed in the said suit were void ab initio. The Court further held that since the suit was dismissed and no decree was passed, there was no question of execution of any decree at all and, hence, the application for setting aside the consent terms was misconceived.

After this decision of the Small Causes Court holding in one breath that the respondent's earlier suit was without jurisdiction and, in the second instance, dismissing his application for setting aside the order passed in that suit taking note of the consent terms, the petitioner instituted contempt proceedings in this Court. His contention was that an undertaking was given by the respondent to the Court of Small Causes to vacate the suit premises by 31-5-1979 and since the respondent had failed to abide by the said undertaking and had continued to occupy the premises even after 31-5-1979 he had committed contempt of the Court.

In this Court, the legal position that the respondent's initial suit for a declaration that he could not be evicted from the premises except by due process of law was without jurisdiction, ab initio was held to be established. I need not go into the question as to by what reasoning such conclusion was arrived at, because that is not the question relevant for the purpose of this petition. The question that fell for the determination of this Court in that contempt petition was as to whether an undertaking given to the Court in a suit which was ab initio filed in a wrong Court and which was, hence, without jurisdiction ab initio could be having any legal efficacy merely because that was an undertaking given to that Court. The legal position that the Court had no jurisdiction to entertain that suit and to pass any order as prayed for in that suit was not in dispute in that contempt petition at all.

Mr. Naidu, however, placed heavy and, at times un-intelligible, reliance upon certain observations of this Court in the said judgment. In para 19 of the said judgment, it is observed as follows :---

'If a proceeding is ab initio void, all orders passed and all representations made therein including undertakings given by the parties will have also to be held as void. When a proceeding is void it is in the eyes of law non est or non existent and therefore everything done therein loses its legal existence.'

At first blush, it may appear that if the City Civil Court had no jurisdiction to entertain the suit as held by the Court by its order dated 24-8-1983, then the order dated 8-2-1983 would be one of no legal consequence as per the broad observation made by this Court, referred to above. But if the observation was not based upon a different set of legal provisions, I might have been required to examine the question whether the said observation has application to the facts of the present case or not. The position in the present case, however, emanates from entirely different statutory provision. Here we are concerned with the provision which specifically authorises and empowers that Court to pass certain orders and if the orders are passed in pursuance of such empowering provision, it is sheer futility to contend that the order is without jurisdiction. A mere casual glance at the provisions of section 9 and 9-A of the Civil Procedure Code will clarify this position. Section 9 of the Code provides as follows :---

'The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.'

From the said section, it is clear that there are courts having jurisdiction to try certain suits and there are other courts which have no jurisdiction to try certain suits. A decree passed by a Court having no jurisdiction to try the suit would evidently be bad and of no legal consequence. Taking the illustration of the very case with which we are dealing, if the plaintiffs had succeeded in getting the decree from the City Civil Court for possession of the suit premises from the defendant/contemnor and if it was subsequently found that Court had no jurisdiction to entertain that suit, the decree would be without jurisdiction and the defendant would be perfectly within his rights even to ignore the said decree and to contend in the proceeding for execution of the decree that the decree was a nullity and he was not bound by the same. If such a decree was a consent decree and he had given some undertaking as part of the consent terms in the said decree, it could be legitimately contended by him that those undertakings were also taken by the Court without jurisdiction and, hence, the undertakings were of no legal efficacy. But this is where the applicability of the judgment of Sawant, J., in the above-mentioned contempt petition ends. While deciding the said case of Dwarkadas Mulji this Court was not concerned with the effect of the addition of section 9-A to the Civil Procedure Code. Since the question raised by Mr. Naidu finds a complete answer in this provision, it is worthwhile setting out here said section 9-A verbatim :

'9-A. (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.'

The very phraseology employed by said section 9-A of the Code leave no room for doubt that jurisdiction is specifically conferred by said section upon the courts to pass interim orders and to grant interim reliefs to the parties even though the Court has no jurisdiction to entertain and try the suit as such. It may be that after the Court has finally come to the conclusion that the Court did not and does not have jurisdiction to entertain or try the suit, the efficacy of the interim order will disappear but such disappearance will date from the date when an order is passed by the Court disowning its jurisdiction. Everything done by the Court as per section 9-A of the Code will be perfectly with jurisdiction and the efficacy of that order cannot be subjected to any challenge even later on. Taking care and giving illustrating of Dwarkadas Mulji's case itself once it was forced that the Small Causes Court in which the suit was filed had never the jurisdiction to entertain and try the suit which came to be disposed of because of the consent terms, the consent terms filed in and accepted by that Court would be of no legal efficacy whatsoever because there existed no provision empowering the Court to accept those terms. But if the selfsame suit was filed in the City Civil Court and in the suit some application for inter-locutory relief was made if the preliminary issue relating to the Court's jurisdiction was also raised, the Court would be perfectly within its jurisdiction to grant such interlocutory relief not by virtue of its general jurisdiction but by virtue of this special jurisdiction conferred upon it by section 9-A of the Code. Evidently this special jurisdiction remains unaffected by the decision relating to the preliminary issue to this extent that if the preliminary issue is decided in favour of the plaintiff and it is found that the Court has got the jurisdiction to entertain and try the suit, the order relating to the inter-locutory relief will continue during the entire hearing of the suit ; but if as a result of the preliminary issue it turns out that the Court has no jurisdiction to entertain and try the suit, the efficacy of the earlier order granting the inter laudatory relief will come to an end with effect from the date when the preliminary issue is decided. But whatever order relating to the interlocutory relief passed till that date will be valid. This position is the direct result of non obstante clause contained in sub-section (2) of section 9-A.

It is true that in Dwarkadas Mulji's case this Court has not discussed this aspect of the question but this is so simply because this Court was not called upon to consider the question and the facts of the case did not present the question before the Court at all.

This brings me to the reason for my mentioning above the position that would obtain if Dwarkadas Mulji's suit was filed in the City Civil Court and not in the Small Causes Court. That marks an important point on which the judgment of this Court in Dwarkadas Mulji's case has got to be distinguished. In that case, this Court was dealing only with the power of the Court of Small Causes and the reason why this Court could not have or need not have proceeded to examine the effect of said section 9-A of the C.P.C. was that said section 9-A has no application to the Court of Small Causes at all. In this connection, Mr. Kotwal the learned Counsel for the petitioner, rightly invited my attention to the provisions of section 8 of the Civil Procedure Code. Said section 8 unequivocally proves that except as provided in sections 24 and 38 to 41 certain clauses of sections 75, 76, 77, 157 and 158 of the Civil Procedure Code and by the provisions of the Presidency Small Causes Court Act, the provisions in the body of the Civil Procedure Code shall not extend to any suit or proceeding in the Court of Small Causes, at Bombay.

My attention was not invited to any provision either in the Civil Procedure Code or in the Presidency Small Causes Court Act or under any of the rules framed by the High Court as per the provisions of the Small Causes Court Act, conferring the same powers as those in section 9-A of the Code upon the Court of Small Causes.

If this is the position, then from the very nature of things the question arising in the Dwarkadas Mulji's case would have to be decided on a statutory background, basically different from the one obtaining in the present case. In the present case, there is no dispute at all that section 9-A of the Civil Procedure Code applies to the City Civil Court imperatively. As a matter of fact, arguments were airily advanced by Mr. Naidu himself to contend that it was the obligation placed upon the City Civil Court to frame a preliminary issue as required by said section 9-A. In this connection, he placed heavy reliance upon the judgment of Mukhi, J. reported in 1976, Maharashtra Law Journal, P. 456 Radhakishin N. Advani v. Mrs. Sheila Govind Mirchandani and another, In that case, the plaintiff filed a suit against the defendant in the City Civil Court for certain reliefs and a notice of motion was taken out by him for an interim injunction. By way of reply to the said notice of motion, plea was raised on the defendants' behalf that the City Civil Court had no jurisdiction to entertain the suit and that, hence, injunction could not be granted. The learned Judge hearing the motion passed an order granting injunction in terms of the notice of motion; but so far as the decision on the jurisdictional question was concerned, he adjourned the hearing of that part of the notice of motion till the hearing of the suit. It was against this order that the defendant filed an appeal to this Court. While examining the question raised by the appellant, Justice Mukhi held that if a preliminary objection in the nature of jurisdiction is raised, it is the bounden duty of the Court, having regard to the provisions of the newly added section 9-A of the Code, to enquire into the said objection and not to defer the enquiry until the hearing of the suit. The learned Judge rightly pointed out that the provisions of section 9-A would be rendered completely nugatory if the duty case upon the Court, to ascertain and verify its own jurisdiction in the first instance, is not performed until the final hearing of the suit itself. The very intendment of section 9-A of the Code is that the suit should not remain pending for years together in a Court having no jurisdiction to entertain the same and the plaintiff should not be driven to go to the appropriate Court after the passage of long stretch of years. All that this Court was required to examine in that case was as to whether the preliminary issue was to be decided immediately, that is to say, as early as possible or whether it could be competently adjourned by the Court till the decision of the suit. No doubt, practice did prevail in various courts to adjourn the hearing even of the jurisdictional issues till the final hearing of the suit. It was precisely with a view to stop this unedifying practice that a part of section 9-A of the Code provided that if a jurisdictional issue was raised by the defendant, then the Court was under an obligation to try the same as a preliminary issue at its earlier convenience. The judgment of Mukhi, J., has given a vocal expression to this written nationals of said section 9-A and nothing more.

17. This being the position, it beats this Court's understanding what relevance this judgment of Mukhi, J., has with the question as regards the jurisdiction of the Court to pass interim orders and as regards the legal efficacy of those interim orders after the Court has decided the preliminary issue holding that the Court has no jurisdiction to try the suit. Judgment of Justice Mukhi in Radhakishin's case is no authority for the proposition that the Court has no jurisdiction to grant interim relief or that the order granting interim relief ceases to be of any legal consequence after the Court has found itself to be incompetent to entertain the suit even for the period between the date of the preliminary order and of the decision on the preliminary issue.

In this connection, one position can be readily accepted. In the instant case, by its order 8-2-1983 the trial Court had facilitated the defendant to remain in possession as the Court's Receiver's agent and for that purpose he was required to pay all arrears of compensation and, further, to pay all the future compensation. The amount of future compensation fixed by the learned Judge may not be binding upon either the defendant or the plaintiff after 24-8-1983. In fact it is doubtful as to whether the order appointing receiver of the property would itself continue to subsist after the Court disowns its jurisdiction by its order dated 24-8-1983. It is possible to contend that when the suit was presented to the Court of Small Causes in the instant case, the Court of Small Causes might be required to examine the entire question of the appointment of receiver de novo and also whether defendant should be allowed to continue as the receiver's agent even thereafter. It is possible to hold that the entire question as regard the amount of compensation that should be paid by the receiver's agent would be entirely within the discretion of the Court of Small Causes. But all these questions relate to the position subsequent to 24-8-1983. Whatever the Court did by way of interim order as per as the provisions of section 9-A of the Code till 24-8-1983 was perfectly within its jurisdiction by virtue of the very mandate of said section 9-A.

It will be, thus, readily seen that the facts in Dwarkadas Mulji's case decided by Sawant, J., related to a position where the order passed by the Court was void ab initio. As a matter of fact, the judgment uses the said expression 'void ab initio' repeatedly and at various places. This was not without purpose. The effects of an order passed by the Court having no jurisdiction ab initio and the effects of an order passed by the Court which loses the jurisdiction subsequently are different quantitatively. In the first case, the order can never be enforced. In the second case, all the orders and decisions passed by the Court till the date on which Court loses its jurisdiction are valid orders and decisions and that can be enforced, but only as regards the liability accrued till that date.

18. One of the aspects of the case was not argued before me. But I will deal with the same whether argued or not. Question is as to whether an order passed before the decision of the preliminary issue can be enforced, for the liability till that date, after the decision of the preliminary issue. To illustrate, in the instant case, order was passed that compensation should be paid at the rate of Rs. 1200/- per month from 8-2-1983 onwards. The preliminary issue was decided on 24-8-1983. The defendant was in arrears of even the current compensation for a part of the period between 8-2-1983 and 24-8-1983. Assuming that he was in arrears for the period between May 1983 and June 1983, could the application for recovery of the said arrears for the months between May and June at the rate of Rs. 1200/- per month be made to the Court of Small Causes to which the plaint is subsequently present Or must such an application be made to the City Civil Court

To my mind, the question has a two-fold aspect :---

(a) whether the liability under the order dated 8-2-1983 continues to exist for the period between 8-2-1983 and 24-8-1983;

(b) If such liability exists and is to be enforced later on, which is the Court which should enforce the same.

I may state here that so far as part (a) of the question is concerned, I see no reason why it should be held that the order of a Court of competent jurisdiction should be deemed to be losing its efficacy and enforceability merely because it is subsequently found that the Court had no jurisdiction to entertain the suit. Section 9-A of the Code beings about a very defined and well identifiable distinction between the general jurisdiction and the jurisdiction created by said section 9-A. If section 9-A did not exist, it would have been, perhaps, possible to argue that all the orders passed by the Court on the assumption that it had got a general jurisdiction would lose their legal efficacy though I am not quite sure that an absolute proposition, this statement of law is wholly correct. I will made a brief reference to this aspect presently. But the point is that the existence of said section 9-A removes all doubts as regards the legal position. Said section 9-A contains a non obstinate clause, the significance of which cannot be over-estimated. By the non obstante clause, the significance of which cannot be over-estimated. By the non obstante clause, the Court has been clothed with a jurisdiction which either it would not be having or which was something about which there was likelihood of doubt. Point is that the doubt, if any, about the Court's power to pass an enforceable interlocutory order is removed by said section 9-A.

Here I may make a brief reference to the reason why a statement of law that without said section 9-A the Court would not be having jurisdiction to give interlocution relief may not be correct as an absolute proposition. It is true that normally speaking, if the Court had no jurisdiction to entertain a particular suit, then its jurisdiction to pass interim orders would be a matter of controversy. As is well-known, in a notice of motion for temporary injunction in the suit for permanent injunction, quite frequently the first objection taken is about the want of such Court's jurisdiction to entertain the suit and if the Court finds that it has no jurisdiction, the Court cannot grant the interim relief. But the ad interim injunction can still be granted because that can be said to be one of the inherent powers of the Court. Just as the Court has an inherent jurisdiction to adjudicate upon its own jurisdiction likewise it can be legitimately argued that every Civil Court has the jurisdiction to grant such interlacutory relief to the parties, pending the adjudication of jurisdictional preliminary issue as the facts of the case may demand. In that sense it be even said that the enactment and addition of said section 9-A is more or less by way of ex majore cautela.

But whatever that may be, fact remains that at least now said section 9-A has extended that inherent power by creating a statutory jurisdiction which extends not upto to the granting of ad interim injunction which is generally granted ex parte, but even to the granting of interim injunction which is granted after hearing the parties which enures in the case of a Court with jurisdiction extends until the decree is passed. In the instant case, the statutory jurisdiction extends until the Court has adjudicated upon the question of its own jurisdiction. But the point is that whatever is ordered by the Court till that date has efficacy of every character. I see no reason to take the view that the order to pay compensation which could be enforced till 24-8-1983 because it was with jurisdiction, ceases to be enforceable subsequently on the ground that it was one without jurisdiction. A distinction has got to be made between an order passed with jurisdiction and a suit filed in a Court without jurisdiction. By virtue of the non obstante clause in said section 9-A, even the Court having no jurisdiction to entertain the suit is clothed with the power to pass certain orders by way of interim relief. The suit may be without jurisdiction but those orders are not without jurisdiction and if the orders are with jurisdiction there is no reason to hold that the efficacy is only short-lived.

One reason for coming to this conclusion is that the parties act upon these orders and change their position to their detriment. A defendant against whom such an order was passed has enjoyed the benefit of the order. For instance, in the present case, an order was passed ordering the defendant to pay the monthly compensation. If he was not to pay that amount, he would not have been allowed to occupy the said premises. On his own showing his past conduct was not such as would inspire confidence and reliance. On his own showing he was in arrears of his admitted liability at least to the extent of Rs. 30,000/- (thirty-thousand). If he has not acquiesced in the order to pay that amount in the first principle, the Court would have, quite justifiably, refused to allow him to continue as the receiver's agent. No reason exists why the law should be so interpreted that the dependent is allowed there by to escape from such huge liability by taking shelter behind the jurisdictional decision. A distinct advantage has, therefore, been secured by him by virtue of the said interim order.

Heavy reliance was placed by Mr. Naidu upon the following proposition of law finding place in the judgment of the Supreme Court in the case of Kiransingh and other v. Chaman Paswan and others : [1955]1SCR117 :

'It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'

It is next to impossible to understand as to what is the big point made out by the learned Advocate by citing this authority. The fact that a decree passed by a Court without jurisdiction is a nullity is a trite truism. The above mentioned observation of the Supreme Court does not lay down a new principle of law at all; it is a well settled principle. But before you apply the said principle, you have to enquire into the question as to whether the particular order passed by the Court was within its jurisdiction or not. In the instant case, the City Civil Court may or may not be having jurisdiction to entertain and try the suit filed by the plaintiff. But the jurisdiction of that Court to pass order relating to interim relief under section 9-A of the Code pending the decision of the preliminary jurisdictional issue cannot be gainsaid. Section 9-A of the Code cries hearse that it has got this jurisdiction. Reliance upon the said authority, therefore, is a totally misplaced reliance.

19. The next authority sought to be relied upon by Mr. Naidu is another judgment of the learned Single Judge of this Court in the case of Kranti Mohan Guruprasa Mehra and another v. Fatehchand Vasuram Behal, : AIR1982Bom263 . Here again I am unable to identify the purpose for which this authority is cited. In that case, a suit was filed by the plaintiff for injunction restraining the defendant from doing certain things and a Notice of Motion was taken also for temporary injunction in that behalf. The defendant filed reply on merit, but he also questioned the jurisdiction of the Court to entertain and try the suit filed by the plaintiff. Thus, the Court was required, as per the provisions of section 9-A(1) of the Code, to raise a preliminarily issue relating to the Court's jurisdiction to entertain the suit. But the Court was also required to consider the question whether the plaintiff had made out a prima facie case for a temporary injunction. It appears from the above mentioned judgment that the learned trial Judge approached both these questions only from a prima facie point of view. So far as the question of interim injunction was concerned, no doubt as per the settled practice of the courts, the trial Court has to consider only whether the plaintiff asking for such interim relief has made out a prima facie case to succeed in the suit or not. But as per the view taken by this Court in the said judgment, the preliminary issue about jurisdiction cannot be decided with reference to a prima facie view.

In other words, in the case of grant of interim relief, proceedings are held at two stages : firstly at the time of grant of interim relief when the evidence is considered only prima facie. But from the very nature of things, both the parties get a second inning in which the entire question is thrashed about on the basis of all the evidence that the parties lead. The view taken as a prima facie, view, at the interlocutory stage may or may not confirmed at the final stage, that is to say, at the time of the final hearing of the suit itself. But so far as preliminary issue relating to jurisdiction is concerned, the question cannot be decided in two stages. It is decided once for all while deciding the preliminary issue itself and if evidence is required for that purpose, the Court is expected to direct the parties to lead it and after examining the entire evidence, a final decision on the preliminary issue is required to be given. If, as a result of the decision on the preliminary issue, the Court finds itself to be having no jurisdiction to entertain and try the suit, the plaint has got to be returned for presentation to the proper Court. If, on the other hand, the Court comes to the conclusion that it does have the jurisdiction to try the suit, the hearing of the suit will proceed. But there shall be no second inning to the defendant to agitate once again the plea that the Court has no jurisdiction to entertain the suit.

Inspite of the fact that this is the scheme of entire section 9 of the Code, the learned Judge appears to have dealt with both the questions, the question relating to the grant of interim relief as also the question involved in the preliminary issue of jurisdiction. On the same footing as if they were to be decided by taking a prima facie view in the matter.

It was this approach of the learned Judge that was disapproved of by this Court in the above mentioned case and this Court held that the preliminary issue ought to have been decided by the learned Judge finally and once for all, which such thoroughness as is possible because there are going to be no second innings for decision of the said issue. This is all that the Court decided and nothing further. This Court was not called upon to go into the question as to whether the order passed by the learned Judge granting interim relief to the plaintiff by way of injunction was or was not an order without jurisdiction. As a matter of fact, the Court had proceeded upon the basis that the trial Court was perfectly armed with jurisdiction to grant interim relief pending the decision as the preliminary issue and, as a matter of fact, the learned Single Judge had made a pointed reference to sub-section (2) of section 9-A of the Code which specifically empowers the Court to grant interim relief pending the decision of the preliminary issue. As a matter of fact, the learned Single Judge has further proceeded to modify the order relating to grant of interim relief and by the said modification, he has himself granted the interim relief of limited character to the plaintiff. This clearly means that, according to the learned Single Judge, he had perfect jurisdiction to pass order relating to interim relief even pending the decision of the preliminary issue relating to jurisdiction. This could not be otherwise, for the very simple reason, that section 9-A(2), in so many words, empowers the Court and arms it with specific jurisdiction to pass such an order. It is, therefore, futile on the part of any one to contend that the order relating to interim relief passed by the Court was without jurisdiction. If it was not without jurisdiction initially, it is difficult to see why it became without jurisdiction subsequently. No doubt such an order ceases to be in force after the Court has decided the preliminary issue disowning its own jurisdiction. But whatever is the effect of the order till that date cannot be deemed to be wiped out merely because the Court has decided to disown its jurisdiction at the later stage, It will be, thus, seen that reliance upon this authority is as futile as is the reliance upon all the other above-mentioned authorities by the learned Advocate.

20. What then is the resultant position? By his order dated 8-2-1983, a Receiver was appointed by the trial Court in respect of the suit shop which order was passed by consent and with a view to protect the suit property belonging to the plaintiff and with a view to grant interlocution relief to the plaintiff pending the decision of the preliminary issue relating to jurisdiction, the defendant was ordered to pay arrears of compensation of Rs. 30,000/- and the further compensation at the rate of Rs. 1200/- per month. The defendant filed an appeal against that order, but in appeal, the order was confirmed. It is his content on that in the appeal he asked for extension of time to pay the amount of the monthly compensation. So far as the arrears are concerned, either he did not ask for extension of time or did ask for it. Fact remains that no such time was granted to him. The further fact remains that he did not pay the arrears within the time as ordered by the trial Court. He never denied his liability to pay the arrears of compensation as ordered by the Court by its order dated 8-2-1983. He has not disputed the validity of the said order till 24-8-1983. His contention is that the order dated 8-2-1983 became one without jurisdiction by virtue of the same Court's order dated 24-8-1983. But the operation of that order dated 24-8-1983 is stayed by this Court's order dated 26-9-1983 and in spite of this position the appellant and his learned Advocate continue to contend that they are entitled to totally disregard the said order dated 8-2-1983 with impunity even though the defendant had raped benefit under the said order by being allowed to enjoy the fruits of possession of the suit shop. No other reason was advanced before this Court, except the technical plea of jurisdictional incompetence, to justify the disobedience of the order of the Court.

There can be no quarrel with the proposition and in fact the proposition is not disputed before us at any time that disobedience with the order of the Court constitutes contempt of Court. No doubt the disobedience must be wilful. Is it possible, in the instant case, to hold that it is not wilful disobedience At no time was it as much as murmured by the leaned Advocate that the contempt was not wilful or that non-payment of the arrears was on account of any inability on the part of the defendant to pay the said arrears. Significantly enough, when it was argued by Mr. Kotwal that extension of time was asked for by the defendant for payment of arrears of compensation. Mr. Naidu vigorously argued that no extension of time was asked for in connection with the payment of arrears of compensations. According to him, extension of time was asked for only in connection with the payment of current compensation which had fallen due after the order dated 8-2-1983. It will be, thus, seen that inability to pay was not a ground raised at any time by the learned Advocate for the defendant before me. It was only on 10th November, 1983 that Mr. Naidu came out with a contention that has client was unable to pay the amount of arrears of compensation of Rs. 30,000/- within six months as earlier assured by him and his client to the Court and it was in this context that he came out with a plea that inability to pay the amount ordered by the Court is itself a defence to a charge of contempt of Court. Bit it must be noted that by this time I had already recorded the finding as regards the contempt committed by the defendant. The inability that was pleaded by Mr. Naidu on behalf of the contemnor had nothing to do with the defendant's inability to pay at any time before 24-8-1983; that plea had nothing to do with the defendant's inability to pay till 12th of October, 1983 when the Receiver took possession of the suit shop from the defendant. In fact the reason for inability to pay the arrears as given by the defendant was that now that the defendant was out of possession of the suit shop as such, it would be impossible for him to pay the amount within six months as earlier agreed by him. As to whether this plea itself is a part of deceptive conduct on the part of the defendant or not is a different question. The relevant point at this stage is that the defendant has indulged in a studied disobedience of the order of the trial Court dated 8-2-1983 and it is impossible to hold that disobedience is not wilful.

Further, this disobedience of the Court's order on the part of the defendant is not only deliberate but also cunning and crafty. It is evident that right from the date when the order was passed, the defendant had no intention whatsoever to obey the order. This is evident from the fact that although an appeal was filed by him against the said order and although he made an application for extension of time for depositing a part of the amount as directed by the Court, his contention before me was that at no time he had asked for extension of time for depositing a part of the amount as directed by the Court, his contention before me was that at no time he has asked for extension of time for paying the arrears of compensation. This contention on his part vividly reflects upon his original intention not to obey the order at any time whatsoever.

Further, the subsequent conduct of the contemnor, acting upon the advice of his learned Advocate Mr. Naidu, does not in any way improve his case. I have already mentioned above that the learned Advocate had, at one stage, assured to pay the amount within 6 months from 15th October, 1983. As a matter of fact, the dictation of the judgment was adjourned partly because of this assurance on the part of Mr. Naidu. The contemnor went back upon this word on two occasions. It is, thus, clear that he and is learned Advocate have chosen to display complete disregard for the sanctity of Court's proceedings and for the sanctity of the assurances given to the Court. These are cases of gross abuse of the process of Court, a distinct specie of contempt of Court, in addition to being a wilful and deliberate disobedience of the order of the Court, another equally heinous specie of contempt of Court.

21. I cannot, however, part with the judgment without making reference to the conduct of the learned Advocate for the defendant-contemnor in these proceedings. The defendant in the case is a barely literate person. He in fact wanted to make a statement before me and from the statement it was evident that he had no knowledge whatsoever about the provision of law relating to contempt of Court. There was no doubt left in my mind that he was acting exclusively upon the advice of his own Advocate, who is none other than Mr. Naidu himself. There is reasons to believer that the failure on the part of the defendant-contemnor to pay the arrears of compensation was the direct result of the advice received by him from his Advocate Mr. Naidu.

However, these acts by themselves may not amount to contempt of Court on the part of the Advocate as such. This is so because, an Advocate is entitled to give such advice to his client as he bona fide believes to be in consonance with the correct legal position. It can always be said with justification that an Advocate is entitled to hold his own opinion about the legal position and so long his view on the question is bona fide, the fact that it is an erroneous view will not mean that any objectionable or unprofessional act was committed by the Advocate.

But in the instant case, the conduct of the learned Advocate is nothing but unbecoming for a profession which requires high rectitude. The learned Advocate went on taking time from this Court by giving assurance to the Court that the amount would be paid within 6 months. This he did after taking instructions from his client. But later on the chose to go back upon his words on two occasions. On the second occasion, 10-11-1983, he came out with a plea that inability to pay the amount ordered by the Court is itself a defence to the charge of contempt Court forgetting that no plea had been raised by the defendant either across the bar or even in the vituperative affidavit filed by his client on 3rd October, 1983 in reply to the present contempt petition.

But the real objectionable conduct on the part of the learned Advocate is the contents of para 2 of the said affidavit of his client, the contemnor dated 3rd October, 1983. The said affidavit is explained and interpreted by the learned Advocate himself to his client, the contemnor. This means that beyond making his signature in English, his client took no part in the matter of preparation of that affidavit because, evidently, his client does not understand the legal intricacies at all. If this was not so, there was no question of the learned Advocate explaining and interpreting the contents of the said affidavit to his client. Moreover, since the learned Advocate has himself interpreted the contents to his client, he cannot escape from the inference that he had himself read the affidavit.

The objectionable para 2 of the affidavit runs as follows :---

'At the outset I say that Miscellaneous Application taken out for the alleged contempt with the compensatory cost. I say that this frivolous application is of the dishonest intention of the applicant when applicant himself is aware of the facts before the trial Court who has passed the order that the Court has no jurisdiction.'

Now what makes objectionable about the said para 2 is that the contempt petition was filed by the petitioner not of his own but as per the directions given by this Court itself. All that the plaintiff/petitioner had prayed for in the Original C.A. No. 2764/83 was that---

(a) the operation of the trial Court's order dated 24-8-1983 be stayed ;

(b) the defendant be directed to comply with the Court, order dated 8-2-1983.

It is only when this Court noticed the adamance of the defendant evidently acting upon the advice of his Advocate, that the question of any contempt proceedings arose. In fact the direction to file the said contempt petition was given by me to Mr. Kotwal after fully hearing Mr. Naidu, Advocate for the contemnor, on the question as to the justification of his client in the matter of disobedience of the order of the Court. Instead of directing the petitioner to file this petition, the Court could as well have issued a contempt notice suo motu. Every allegation of frivolity and dishonest intention made in the said para is, thus, directed against the Court and it is difficult to resist the inference that the learned Advocate has himself gone to the extent of making these allegations against the Court. No doubt he has tried to shield himself behind his client by purring the allegations in the mouth of his client, the contemnor. But there are reasons to believe that those allegations stem from his own advice to the client. This is a fresh and distinct contempt. A suitable proceeding may have to be instituted against learned Advocate as also against his client on account of this fresh contempt. However, I do not find it necessary to pass any order in that behalf in the present judgment.

22. In these circumstances, I have no option but to pass a suitable order against the contemnor sentencing him to suffer jail for the gross contempt of Court that he has committed by deliberately and cunningly flouting the orders of the Court after taking advantage of the same. The contemnor is, therefore, ordered to be sent to civil jail for a period of 3 months. The Sheriff is directed to take him into custody on 10th January, 1984. The petitioner is directed to deposit a sum of Rs. 500/- in the first instance for the maintenance of the contemnor in the civil jail. If under the rules, he is required to deposit any further amount, he is ordered to deposit the same as per the directions to be given to him by the Registrar of this Court. The contemnor is directed to surrender himself to the Sheriff of the Court on 10th January, 1984.


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