1. Chaudhari Rajendra Singh under the guardianship of Chaudhari Sher Singh applied to this Court for issue of notice to the plaintiff, Mr. Uma Pershad to show cause why he should not be dealt with for contempt of the subordinate Court in respect of a notice dated 11th July 1934, sent on behalf of the plaintiff by Dr. M, his advocate. The application was directed against the plaintiff, Mr. Uma Pershad only, but as prima facie it appeared that a contempt had been committed by the service of this notice issued under the signature of the counsel, we ordered that notice should go to the counsel concerned as well. Both are now represented before us.
2. It appears that a civil suit was pending in the Court of the Subordinate Judge of Dehradun and had been brought by the plaintiff, Mr. Uma Pershad against Rajendra Singh minor under the guardianship of Chaudhari Sher Singh on the basis of a mortgage-deed executed by the deceased father of the minor defendant in favour of the deceased father of the plaintiff. The claim was contested inter alia on the ground that the mortgage debt was not binding on the minor defendant inasmuch as it was tainted with immorality. In para. 9 of the written statement it was specifically pleaded:
that some unscrupulous money-lenders taking advantage of the dissolute habits of the defendant's father began running him into indebtedness and the said defendant believes that the plaintiff's father also colluded with some of these money-lenders with a similar object and the payment of curlier debts as recited in the deed is fictitious.
3. After issues had been settled, the plaintiff's evidence closed, and the defendant's evidence began, the notice in dispute was sent by the plaintiff to the defendant's guardian. After quoting para. 9 of the written statement in full the notice stated that that statement was defamatory per se of the plaintiff's deceased father and lowered his reputation in the estimation of his fellowmen and caused him harm in various ways and then added:
unless within a week of the receipt of this notice you send an unqualified apology and withdraw the afore quoted statement by putting in an application to that effect in the said Court and also by publishing the said withdrawal and apology in such newspapers as my client requires in order to clear the character and conduct of his late father and unless farther within the same one week you pay to my client a sum of Bs. 10,000 (ton thousand rupees) only as damages, which sum is only a rough figure for the purposes of this notice and by which ho is in no way bound, if litigation becomes necessary in this regard he will take action against you both in civil and criminal Courts as advised, in which event you will further be liable to pay such damages and costs incidental thereto as may be claimed.
4. The question for consideration before us is whether the issuing of this notice amounted to a contempt of the Subordinate Judge of Dehra Dun. Jurisdiction to punish for contempt of subordinate Courts undoubtedly vests in this Court, and has mot been challenged by learned counsel. Apart from there being inherent jurisdiction, such jurisdiction has been expressly conferred upon High Court is by the contempt of Courts Act (12 of 1926), in all cases of contempt other than those which amount to an offence under the Penal Code. There is no suggestion in this case that the action of the opposite party amounted to any offence under the Penal Code. Therefore the only point for consideration is whether this notice amounted to contempt.
5. Now, there can be a large variety of cases coming under the well-recognized heads of contempt in which an offence may be committed. No attempt has therefore ever been made, nor is it possible to lay down any exhaustive catalogue of cases which would amount to contempt, but one of the well recognized heads is 'interference with the administration of justice.' Undoubtedly it is the right of every defendant to take every legitimate plea and submit his defence with the Court for its consideration. If the pleas are in any way unnecessary, irrelevant or scandalous, there is ample provision in the Civil Procedure Code, for an application being made to the Court to have such scandalous, unnecessary or irrelevant matters struck out. But where no such attempt is made, defendants are not to be deterred from pressing their pleas and submitting them to the Court for adjudication. Of course, if the pleas are not substantiated and amount to false pleas supported by false evidence, they run the risk of being prosecuted under the criminal law.
6. Now, the notice in this case undoubtedly was intended to put extraneous pressure on the defendant in order to compel him under threat of drastic action being taken against him to withdraw the plea, which had been taken by him specifically in the written statement. An offer was also made to desist from taking legal action if within a certain time fixed the defendant withdrew the plea contained in his written statement. There can be no doubt that the effect that was intended to be produced on the mind of the defendant's guardian by this notice was to compel him to abandon the plea which might well have been a legitimate plea. It is unnecessary for us to express any opinion whether in the circumstances of this case the plea was relevant or irrelevant. That is a matter exclusively for the consideration of the Subordinate Court. But it is our duty to protect defendants from being cowed down into submission and under pressure of threat and menace being made to abandon pleas which they can legitimately take in a pending action.
7. In Smith v. Lakeman (1857) 26 L.J.Ch. 305, an unsigned letter had been sent by the plaintiff to the defendant with a view to intimidating him in the conduct of his defence. The letter warned the defendant that he has a suit pending in Chancery and should it go up for judgment, he would at once be indicated for swindling, perjury and forgery, and thus bring disgrace on his family. It was not mentioned who would start such prosecution, but the threat was that certain legal action in Court would be taken if the matter was pressed to final conclusion. Stuart V.C. in committing the plaintiff for contempt remarked that the letter amounted to a threat for the purpose of intimidating him as a suitor, and therefore whether it had had that effect or not was unquestionably a contempt of Court.
8. The accused counsel for Dr. M has cited before us some English cases in which it has been held that in case of libel or defamation it is not objectionable to serve notice on the offending party giving him an opportunity to withdraw the defamatory words and threatening to take legal steps against him if he fails to do so. Such cases obviously stand on quite a different footing. We are not here dealing with the case of a private defamation. The present case is one where an attempt was made to put pressure on the defendant to withdraw a plea which had been taken in the written statement, duly filed in Court, which was the subject of consideration by the Subordinate Judge of Dehra Dun. We think there can be no doubt that such an action amounted to a direct interference with the administration of justice in preventing the defendant from pressing his defence and putting forward the plea which might, if established, prove fatal to the suit and in that way an indirect attempt was made to exclude the plea taken on behalf or the minor from the consideration of the Court.
9. Mr. Uma Pershad has adopted a very straightforward attitude before us. He has in his affidavit explained that he acted after taking legal advice and under the direction of his advocate, and he has frankly admitted that he never realized that he was committing any offence of contempt. In addition to that, lie has undertaken to abandon the criminal complaint which was filed subsequently, and has orally expressed before us his regret for what had been done. We accordingly unhesitatingly accept his apology, and under Section 3 of the Contempt of Courts Act, discharge him. We order that he should bear his own costs of this proceeding.
10. On behalf of Dr. M his learned counsel had strongly contended before sis that in the first place there was no commission of any offence of contempt and that in the second place inasmuch as Dr. M was acting in the capacity of a counsel, he is not at all responsible. We have already given reasons for holding that the offence of contempt of the Subordinate Court was committed in this case by the issue of the notice in dispute.
11. As to the capacity in which Dr. M was acting, we may point out that a counsel is not expected to act blindly and allow himself to be dictated to by his client and in that way make himself a mere instrument or a tool in his hands. He has to exercise this own judgment and discretion and Seven in cases where scandalous or defamatory matters are to be communicated he has to warn his client, much more so where the offence would I amount to one of contempt of Court. It is a novel proposition that even though the sending of the notice amounted to contempt, the counsel who sent it is protected because he was acting as counsel. A counsel's capacity is not inviolable, and his privileges cannot possibly extend to interference with the administration of justice. Counsel are expected to help in the administration of justice and not to be an impediment thereto.
12. The case before us is particularly strong. It is difficult to see how Dr. M can take shelter behind the act of his client, who acted entirely under his own legal advice and direction. Admittedly his advice was sought by the plaintiff and he not only gave him the advice to serve a notice on the defendant's guardian, but actually drafted the notice himself, which contained his own words, and sent the same under his own signature, although he was acting on behalf of the plaintiff. The threat having been made under the signature of a counsel and addressed to a layman was particularly serious. In these circumstances when he himself was the prime mover, and, but for his advice and action it is possible that the plaintiff might never have sent this notice and therefore not committed any offence at all, it is difficult to see how the primary responsibility can fall on the plaintiff and not on the counsel who originated the idea.
13. We are however satisfied on the statement filed by Dr. M that he did not, at the time when he sent this notice, realise that he was committing any offence. Lawyers, of course, are presumed to know the law, but the law may at times be forgotten or be not understood. We are satisfied that this notice would not have been sent if Dr. M, had been under the impression, that an offence of contempt of Court would be committed thereby. In his statement Dr. Misra towards the conclusion has said as follows:
If this Hon'ble Court be of opinion that the notice should not have been issued by me and it constitutes a contempt of Court, than I respectfully assure this Hon'ble Court that it was done quite unwittingly and unintentionally and express my unqualified regret for it.
14. This, in our opinion, is a fair attitude to take up. In these circumstances, although we find Dr. M guilty of the contempt of the subordinate Court, we remit the punishment under Section 3, Contempt of Courts Act. We however order that he must pay the costs of the applicant in this proceeding, which we assess at Rs. 100.