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The Harijan Co-operative Housing Society Ltd. Vs. R.N. Sarkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1966CriLJ107
AppellantThe Harijan Co-operative Housing Society Ltd.
RespondentR.N. Sarkar and anr.
Excerpt:
.....josi. beni prasad agarwal does not appear to have taken any fresh steps towards the execution of his decree except that when the amin reached the premises in question on 25.5.1965, he sent his munims along with him and later on gent his son lakshman prasad as well. it is true that according to beni prasad agarwal, it was his judgment, debtor pitambar joshi who was in occupation of the premises aid his soil, lashman prasad, even gave a writing to that effectbut that could very well be the bona fide belief of beni praead and his son. as already indicated above, the society has miserably failed in discharging its onerous burden. chief justice of orisaa air 1961 sc 1367. 10. under the circumstances, i am afraid, this application must fail......which ha required 'for opening nursery school. in the name of govind ballabh pant bal niketan.' pitambar joshi, therefore, prayed that the same may be allotted in his name.the rent control & eviction officer accord, ingly allotted the said accommodation 'to sri pitambar joshi, manager, bal niketan' by his order dated 20.8.1963. according to the petitioner, the said pitambar joshi was removed from managership of bal niketan, which institution is thereafter being run and managed by panna lal varshney, assistant seoretary of the 8ooiety. later on 25.9.64 the respondent filed suit no. 654 of 1964 against the said pitambar joshi for his ejectment from the portion of the premises no. 11 bank road, which was allotted to him on 20.8.63. in defence the said pitambar joshi advanced the plea.....
Judgment:
ORDER

Gyanendra Kumar, J.

1. This is an application for action against Bani Prasad Agarwal, respondent, for contempt of Court in the following circumstances;

2. The petitioner is a registered society called the Harijan Co-operative Housing Society, Allahabad which alleges to be running a Montessori school called 'Pt. Govind Ballabh Pant Bal Niketan' (also known as Bal Niketan) at 11 Bank Road, Allahabad. The above mentioned premises consists of four accommodations One of the portions was allotted to the Secretary, Harijan Welfare & Co-operative Society on 6.7.1960 by the Rent Control & Eviction Officer, Allahabad. The respondent purchased the entire building No. 11 Bank Road, Allahabad, and got into proprietary possession in or about January, 1962. On 16.8.1963 one Pitambar Josbi, Manager, Bal Niketan and working in the University Library at Allahabad, made an application to the Rent Control & Evic. tion Officer saying that a portion of the bungalow No. 11 Bank Road, Allahabad, which was in the occupation of 'Sangeet Kala Kendra,' had fallen vacant which ha required 'for opening Nursery School. in the name of Govind Ballabh Pant Bal Niketan.' Pitambar Joshi, therefore, prayed that the same may be allotted in his name.

The Rent Control & Eviction Officer accord, ingly allotted the said accommodation 'to Sri Pitambar Joshi, Manager, Bal Niketan' by his order dated 20.8.1963. According to the petitioner, the said Pitambar Joshi was removed from managership of Bal Niketan, which institution is thereafter being run and managed by Panna Lal Varshney, Assistant Seoretary of the 8ooiety. Later on 25.9.64 the respondent filed suit No. 654 of 1964 against the said Pitambar Joshi for his ejectment from the portion of the premises No. 11 Bank Road, which was allotted to him on 20.8.63. In defence the said Pitambar Joshi advanced the plea that the allotment was not in his personal capacity but as the Manager of Bal Niketan. The learned Munsif by his judgment and decree dated 2.1.1965 decreed the suit on the finding that the premises in question was allotted to Pitambar Joshi personally and not in his capacity as the Manager of the institution.

It may be mentioned here that the petitioner Society was not impleaded to the suit as a party. The respondent decree holder applied for execution of his decree for ejectment of the said Pitambar Joshi, which was registered as execution case No. 26 of 1965. He also prayed for police help. Thereupon the petitioner Society filed suit No. 174 of 1965 in the Court of the Munsif, West, Allahabad, on 9th March, 1965 against the respondent and the said Pitambar Joshi for declaration that the school housed in the accommodation was being run by the Society and the said accommodation was in possession of the Society ever since it was allotted by the Bent Control & Eviction Officer under his order dated 20.8.1963. It was further prayed that decree No. 456 of 1964 dated 2.1.1965 Beni Prasad Agarwal v. Pitambar Joshi be cancelled as void, ineffective and not binding on the Society. In the aforesaid, suit the petitioner further obtained an injunction order dated 10.3.1965 in the following terms:

Itsue notice, fixing 13.4.1965 for objection and orders. Meanwhile the defendants are restrained from ejecting the plaintiff till the disposal of this application.

On 21.4.1965 the petitioner society filed an application before the execution Court (7c) praying that the execution of decree No. 654 of 1965 may remain stayed pending decision of its suit No. 174 of 1965. On 8.5.1965 the execution Court, after hearing the parties, passed the following order:

Harijan Co-operative Housing Society, Allahabad is no party to this execution. Injunction filed by the applicant is against Beni Prasad Agarwal for not ejecting the Harijan Co-operative Housing Society, Allahabad.

Counsel for the Housing Society contends '7C', under Order 21, Rule 29 and Section 151, Civil P.C.

This Order 21, Rule 20 is applicable to the Court where the suit is pending. I see no force in '7C' hence it is rejected.

Execution to proceed.

On 10.5.1965 the execution Court ordered:

Issue Parvana for possession and attachment, as prayed. Report by 29.6.1965.

On 25.5.1965 the Court Amin accompanied by a Police Sub Inspector and constables and Munims of the respondent decree holder reached the premises but did not find the judgment-debtor. Pitambar Joshi there. The Amin was informed that the judgment-debtor had gone to the University. However, one Kanhaiya Lal, Research Scholar, was found on the premises who is alleged to have gone away saying that he was going to call the judgment-debtor. When neither the judgment-debtor nor the said Kanhaiya Lal returned foe quite some time, the Amin broke open the locks of the Hall and another room and took out sundry articles placed therein. At that stage Panna Lal Varshney, Secretary of the Society, appeared on the scene and showed the certified copy of the injunction order of the Munsif, West dated 10.3.1965 to the Amin and the police Sub-Inspector.

At that very time also appeared on the scene Sri N.C. Upadhya, Advocate, and the aforesaid Kanhaiya Lal who pursuaded the Amin to stop proceedings for delivery of possession. At that juncture, Laxman Das Agarwal, son of the respondent and Sri Deoki Nandan Agarwal, Advocate, made their appearance. The said Laxman Das also gave a writing to the Amin, which translated into English would read:

The portion of the house which is sought to be dispossessed is in the possession of the judgment-debtor and the persons who are present on the spot are judgment-debtor's men. Execution proceedings should, therefore, continue and possession be delivered to me.

The Amin, however, did not act on it, but stopped further proceedings and got the articles. placed back into the rooms.

3. On the above facts and circumstances, the case of the petitioner Society is that the respondent had committed contempt of the Court of Munsif West, Allahabad, by flouting the injunction order dated 10.3.1965 passed by him and by showing disrespect to that Court and its process.

4. The respondent contested the matter and filed his counter affidavit to the effect that the premises had never been allotted to Bal Niketan School or the Society but were allotted in the personal name of Pitambar Joahi; that in suit No. 654 of 1964 the said Pitambar Joshi had taken up the plea that the premises were allotted to him not in his personal capacity but as Manager of the School, which was not accepted by the Munsif; that the executing Court had dismissed the petitioner's objection and prayer for stay of execution of the decree; that he had acted bona fide in taking out execution of the decree for possession against his judgment-debtor Pitambar Joshi and that the petitioner Society was not in possession of the premises in question. In the end it was stated that the respondent neither had nor could ever have any intention to commit contempt of the Munsif's Court.

5. It may be mentioned at the outset that the special jurisdiction of the High Court under the Contempt of Courts Act is not to be invoked lightly in order to uphold the cause of any party but is meant to be exercised in oases where there is substantial interference with the administration of justice or where there is wilful defiance of the judicial process or an attack upon the dignity and authority of judicial tribunals. It is not a right of a party to invoke this summary process of the High Court for redress of his personal grievances. Normally where a party is alleged to have disobeyed an order of injunction made by a Court of law, it would not be expedient to initiate summary proceedings in contempt before the High Court. A detailed enquiry in the matter must be left to the Court which had passed the order of injunction and which is evidently more acquainted with the subject-matter of the pending cause and the object of the prohibitory or mandatory order of injunction issued by it.

In such cases the provisions of Order 39, Rule 2-A of the Civil P.C. (as amended by this Court) are more adequate and satisfactory remedy. In a recent case, A. Ramalingam v. V.V. Mahalinga Nadar : AIR1966Mad21 a Division Bench of the Madras High Court had taken a similar view, with which I respectfully agree. The two learned Judges of the Madras High Court stressed their opinion in the following words:

Essentially, contempt of Court is a matter which concerns the administration of justice; and the dignity and authority of judicial tribunals; a party can bring to the notice of Court, facts constituting what may appear to amount to contempt of Court, for snob, action as the Court deems it expedient to adopt. But, essentially, jurisdiction in contempt, is not a right of a party, to be invoked for the redressal of his grievances; nor is it a mode by which the rights of a party, adjudicated upon by a tribunal, can be enforced against another party. The entire corpus of execution law exists for the enforcement of rights, by one party against another, which have been the subject matter of adjudication. In our view, there are sufficient grounds here to show that it will be inexpedient and undesirable to institude proceedings in contempt jurisdiction in a situation of this kind. Firstly, the facts themselves may be in controversy, whether a deliberate flouting of a judicial order or decree has occurred, and we state this, irrespective of the merits of the instant case. When they are in controversy, they cannot be ascertained without due enquiry. If the Court is to commence an action in contempt jurisdiction, only after ascertaining facts at such an enquiry, obviously it will be converting itself into an agency for arriving at finding of fact which may be a foundation for contempt jurisdiction. On the contrary, it would be in the interests of justice to exercise contempt jurisdiction, or to commence to do so, only when the facts of the record ex facie support such a proceeding; any detailed enquiry must be left to the Court which has passed the order, and which is presumbly fully acquainted with the subject matter of its own decree of temporary prohibitory injunction. For this reason, we are of the view that Order 39, Rule 2(3) of the Civil P.C. is a far more adequate and satisfactory remedy in such oases. Again, where the situation is strictly inter parties and third party rights are not involved, it is clearly more desirable that the Court which made the order of injuction, should go into the facts, and ascertain the truth of the alleged disobedience, and the extent to which it has been wilful.

6. In the light of the above quoted observations and the view that I am inclined to take in agreement with them, this petition could be dismissed on the simple ground that the matter had to be agitated before the Court which had pas3od the temporary Older of injunction or stay. However, on merits also I do not find it to be a ease which could be considered to be beyond controversy and doubt.

7. As already noted earlier, the petitioner's declaratory suit No. 174 of 1965 had been filed both against Bani Prasad Agarwal as well as Pitambar Josi. By his temporary injunction order D/-10.3.1965 the Munsif (West) had restrained both the defendants from ejecting the plaintiff till the disposal of the injunction application. The petitioner had then made an application before the Second Additional Munsif, Allhabad, who was executing decree No. 664 of 1964 for ejectment of Pitambar Joshi, praying for the stay of the execution pending decision of its suit No. 174 of 1965. The said application was made under Order 21, Rule 29 and Section 151, Civil P.C. The executing Court was of the view that Order 21, Rule 29 was applicable only to the Court where the suit was pending and not where execution was proceeding and further that the society was not a party to the execution pending before him. On these grounds the Munsif rejected the petitioner's application for stay of execution by his order D/-8.5.1965 and ordered the execution to proceed and even issued a Parvana for delivery of possession and attachment. Under these circumstances, Beni Prasad Agarwal respondent could Ultimately entertain the belief that he could execute his decree for dispossession of Pitambar Joshi. Beni Prasad Agarwal does not appear to have taken any fresh steps towards the execution of his decree except that when the Amin reached the premises in question on 25.5.1965, he sent his Munims along with him and later on gent his son Lakshman Prasad as well.

8. In spite of the above facts and circumstances, Beni Prasad could, perhaps be held guilty in contempt, if it had conclusively been proved that it was the society which was in possession of the disputed accommodation on. the relevant date, i.e., 25.5.1965, and not Pitambar Joshi. The case of the petitioner society is that it was running a school in the accommodation in question. One would expect that there would be a sign board outside the building to indicate that a school known as 'Gobind Ballabh Pant Bal Niketan' was running therein. It was also expected that the school which is alleged to have been running since 1963 would have on its premises attendance registers and black-boards, etc., to show that the school was really being run in the building. However, there is no evidence on the record to prove these facts. On the other hand the evidence led on behalf of Beni Prasad Agarwal, Respondent, is that there was no such sign-board visible on the spot nor were there any black, boards, etc, placed in the rooms which were got opened by the Amin.

It is true that according to Beni Prasad Agarwal, it was his judgment, debtor Pitambar Joshi who was in occupation of the premises aid his soil, Lashman Prasad, even gave a writing to that effectBut that could very well be the bona fide belief of Beni Praead and his son. There was nothing on the box, clothes and bedding etc., which were recovered from the rooms to indicate that they could not have belonged to Pitambar Joshi. However, when the certified copy of the injunction order was shown to the Amin on be. half of the petitioner Society, the Amin stopped all further proceedings and took care and caution to get the articles placed back in the rooms. Before the petitioner could succeed in this case, it was its bounden duty to establish, beyond all reasonable doubts, that it was the Society which was in actual physical possession of the premises in question and wa3 being wrongfully thrown out of it, in defiance of the injunction order issued by the Munsif (West) Allahabad. As already indicated above, the society has miserably failed in discharging its onerous burden.

9 It is true that Beni Praead had learnt about the injunction order on 2lst and again on 23td of April, 1965, yet he did not care to enquire whether the society was really in possession of the disputed premises nor did he care to inspect the record of the petitioner's subsequent suit No. 174 of 1963, nor approached the Munsif (West) foe vacating or modifying the injunction order. But I have not been referred to any rule or law under which the decree-holder was legally put to enquiry into these matters. In these proceedings Beni Prasad Agarwal is in the position of an alleged contemner or accused. Therefore all legitimate presumptions would be made in his favour and he would also be entitled to the benefit of doubt. He cannot be punished for his mere inactivity or negligence, for disobedience by a contemner has to be wilful, deliberate and intentional and not merely casual or unintentional vide B.K. Kar v. Chief Justice of Orisaa AIR 1961 SC 1367.

10. Under the circumstances, I am afraid, this application must fail. It is accordingly rejected. However, in view of the negative attitude adopted by Beni Prasad Agarwal, I am not inclined to grant him costs of this petition. Never, theless the petitioner shall pay Rs. 80 as costs to the Government. Advocate, Sri J.R. Bhatt, within one month hereof.


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