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Padarath Tewari Vs. DulhIn Tapesha Kueri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All524; 136Ind.Cas.367
AppellantPadarath Tewari
RespondentDulhIn Tapesha Kueri and ors.
Excerpt:
- - 2. if the learned subordinate judge imagines that the supposed inherent power makes him the absolute master of the situation so as to enable him to pass any arbitrary orders which he thinks fit against any party to the suit, the sooner he is disillusioned of this false notion the better for him. the poor lady appears to keep purdah and was brought to court in a palki......been left unfettered to chalk out a procedure not provided for in order to do justice.2. if the learned subordinate judge imagines that the supposed inherent power makes him the absolute master of the situation so as to enable him to pass any arbitrary orders which he thinks fit against any party to the suit, the sooner he is disillusioned of this false notion the better for him. the provisions for the issue of the warrants of arrests are to be found in the four corners of the civil procedure code. there is also power to get parties arrested or punished when proper proceedings for contempt of court have been taken in an authorized manner. but it is preposterous to suggest that a court has power to arrest any person or to send him to jail forthwith without any proper trial in a legal.....
Judgment:

1. This is an appeal from a most startling order for the arrest and detention in the civil prison of the defendants. A preliminary objection is taken that no appeal lies from the order. In our opinion this objection has no force whatsoever. Under Section 104(h), Civil P.C., an appeal is expressly provided from an order directing the arrest or detention in the civil prison of any person otherwise than in execution of a decree. Even if there had been no provision for an appeal, we would have felt compelled to interfere in revision because there has been a gross travesty of justice in this case. Even a cursory reference to the order-sheet would show that for some reason not easily intelligible the Subordinate Judge proceeded in a very highhanded manner which would in no way do credit to any judicial officer of experience. The most astonishing thing is that the Subordinate Judge himself was fully conscious that there were no express provisions in the Civil Procedure Code which justified the course of action which he took upon himself to pursue. In order to usurp most sweeping powers of arresting the defendants and sending them to jail he took shelter behind the remark:

The Civil Procedure Code is not exhaustive and it cannot be said to lay down a procedure for every emergency on account of which the power of the Court hag been left unfettered to chalk out a procedure not provided for in order to do justice.

2. If the learned Subordinate Judge imagines that the supposed inherent power makes him the absolute master of the situation so as to enable him to pass any arbitrary orders which he thinks fit against any party to the suit, the sooner he is disillusioned of this false notion the better for him. The provisions for the issue of the warrants of arrests are to be found in the four corners of the Civil Procedure Code. There is also power to get parties arrested or punished when proper proceedings for contempt of Court have been taken in an authorized manner. But it is preposterous to suggest that a Court has power to arrest any person or to send him to jail forthwith without any proper trial in a legal proceeding. In a civil suit for a declaration pending before the Court below it was in issue whether plaintiff 1 was the daughter of defendant 1 born of defendant 4, but there was no specific issue that defendant 4 had never given birth to any child at all. On an application of the plaintiffs filed on 5th January 1981, unsupported by any affidavit, the Court ordered that the vakil for defendant 2 should produce her on 16th January 1931:

so that she may be sent to a doctor for medical examination as to whether any issue was born to her.

3. The other defendants were asked to be present so that they 'might watch the examination by the doctor.' The learned Subordinate Judge up to that date had no materials before him to show that defendant 4 was agreeable to submit herself to medical examination. He did not even take the trouble to ascertain this before passing the order. This order was repeated on 15th January, and defendants 1 and 3 were ordered to produce her in Court on 21st January 'so that she may be required to undergo medical examination.' The learned Subordinate Judge even now did not pause to inquire whether she was herself willing to submit herself to medical examination. On 21st January the parties filed conflicting affidavits but there was yet no suggestion that defendant 4 was herself willing to be internally examined. The learned Subordinate Judge concluded that defendants 1 to 3 were responsible for her non-appearance and ordered that they 'be arrested and detained in the civil prison.' Defendant 3 was present in Court and he was ordered to be arrested 'at once.' No proceedings for any contempt of Court were drawn up against these defendants. Warrants for the arrest of defendants 1 and 2 were issued on the same day and the process-servers were ordered to bring defendant 4 to Court. The proces-servers returned the warrants unexecuted as they found the house of defendants 1 and 4 locked up.

4. Finding that his arbitrary orders proved futile, the learned Subordinate Judge ordered a vakil:

to go as a commissioner, break open the door or lock, if necessary, and let the pairokar of the plaintiffs and defendant 4 bring Mt. Bhagjogna in his company to Court.

5. The order proceeded:

if the pairokar points her out to be in the house of any other person the commissioner shall request the other person to let her into his custody and if that man refuses, the commissioner shall, after due notice of keeping purdah, enter his house and break open the door or lock if necessary in order to take her into his custody.

6. This is an instance of authority running riot. The learned Subordinate Judge should have realized that he would be making himself liable to damages for illegal arrest if a lady defendant was taken into custody and brought to Court against her will or by force. The defendant lady was brought into Court by the commissioner, 'after some trouble and opposition.' She was ordered 'to remain in Court pending order for medical examination.' Defendant 3 was ordered to be released in order to present himself before the Court 'so that the proceedings of the medical examination of the lady may take place in his seeing.' The other parties were also ordered to be present at the time of the medical examination of the lady. Up to the time of the passing of this order it did not strike the learned Subordinate Judge that the lady's wishes should be consulted. The poor lady appears to keep purdah and was brought to Court in a palki. The learned Subordinate Judge examined her later and noted that 'she is willing to submit herself to medical examination by a lady doctor.' As Indian pardanashin women are generally reluctant to undergo an internal examination, the peculiar circumstances in which she had been brought to Court and was detained there might justify the comment of the counsel for the defendants that she must have been too frightened and nervous, and her consent was wrung out of her because of the fear under which she was placed. The Subordinate Judge should appreciate that an internal medical examination of a lady, if not voluntarily submitted to by her, would amount to assault and battery. The medical examination of the defendant lady took place at the zenana hospital. Subsequent proceedings were stayed by an order of the High Court passed on an application for transfer. When the application for transfer came up for final disposal the junior counsel engaged stated that he had no instructions and the senior counsel sent an illness slip praying that the case be postponed. Unfortunately for him the case was heard ex parte and the application was dismissed on the one sided report of the Subordinate Judge. If all the facts had been brought to the notice of the learned Judge, he might have come to the conclusion that the learned Subordinate Judge was not in a fit judicial mood to try the civil suit.

7. It seems to us that the whole procedure adopted by the Subordinate Judge was illegal from beginning to end, and it is regrettable that any experienced judicial officer should stoop to adopt such a course of action. Courts of justice have not only to do justice but should also inspire confidence in the public mind as to their fairness. Such a high-handed conduct on the part of a judicial officer is bound to bring Courts into discredit and shake the confidence of the people in the purity of the administration of justice.

8. The learned Subordinate Judge did not profess to act on the assumption that they were in contempt, nor did he take any proper legal proceedings against them for contempt. In the circumstances he had absolutely no jurisdiction to get the defendants arrested or sent to the civil prison. His order was utterly ultra vires and without authority. We accordingly allow this appeal and set aside the order of 21st January 1931, and direct the plaintiffs at whose instance the order was passed, should pay the costs of the defendants in both the Courts.


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