Barman, Ag. C.J.
1. The point which gives rise to this appeal is whether the appellant, who was the Sarpanch of the Gram Punchayat of village Rampur, was guilty of disobedience of an order of injunction passed by Court in art arbitration case to which he was not a party. The matter arose under the circumstances hereinafter stated.
2. The Raja and Ruler of the State of Rairak-hole in the Eastern States Agency (Orissa) had ceded to the Dominion of India as a result of the agreement between the Raja and the Governor General in Council. Under the said agreement that Raja was granted full ownership, use and enjoyment of all 'private properties' belonging to him from the date of the agreement. Subsequently the Raja was intimated about the decision of the Union of India to the effect that village Rampur was conceded to the Raja except the building used for public purposes before the date of the agreement and about similar concessions with regard to some other villages.
3. It is said that the State of Orissa through its agents and/or servants had been encroaching! upon the rights of the Raja, as the use and possession of the said villages in a manner alleged to be prejudicial to the interest of the Raja and contrary to the provisions of the agreement Thereupon, the Raja filed in the Court of the Subordinate Judge, Bhubaneswar, a petition under Section 20 of the Arbitration Act against the Union of India and the State of Orissa as opposite parties, which was registered as O. S. 22 of 1962. On March 7, 1962, he also filed a petition under Section 41 of the Arbitration Act against the Union of India and the State of Orissa as opposite parties in the court of the Subordinate Judge, Bhubaneswar, with a prayer for injunction under Order 39, Rules 1 and 2 of the C.P.C.
'To grant an ex parte ad interim injunction restraining the opposite parties directing them not to interfere in any way with the properties of the applicant, fully set out in the schedule or violating his rights therein and after hearing the parties make the said order of injunction absolute'.
4. On April 18, 1962 on the said application for injunction the Subordinate Judge granted an injunction in terms which, as far as material, are these: --
'It is concluded that the ex parte interim injunction may be granted in respect of the plots given in the affidavit as the petitioner apprehends imminent danger from the opposite party .. .. .. Issue notices to the opposite parties to show cause by 18-6-1962 why temporary injunctions as prayed for shall not be allowed In the meantime issue ex parte ad interim injunction in respect of plots Nos. 672, 733, 662, 640, 652, 683, 654, 655, 638, 621, 625 and 626....'
5. The Raja's grievance is that this injunction order was disobeyed by, amongst others, the appellant who was the Sarpanch of Rampur Village Grama Punchayet and the Raja filed an application on Aug. 21/62 for breach of the said injunction. In the said application he made 10 persons opposite parties including the Union of India, the State of Orissa, the Sub-divisional Officer Rairakhole, the Secretary Rampur Grama Punchayet, the Chairman Rampur Block and the appellant as opposite party No. 4 and four others, opposite parties Nos. 3 to 10 being all residents of Rampur village. The Subordinate Judge found the appellant opposite party No. 4 as Sarpanch of Rampur Grama Punchayet guilty of wilful disobedience of the order of injunction and breach of its terms and accordingly directed that the property of the Grama Punchayet other than that which is the subject-matter of the suit shall be attached to the value of Rs. 500/- for one year from the date of service of the writ of attachment. It is against this order that this appeal has been filed by the appellant, Sarpanch of Rampur Grama Punchayet.
6. Is the appellant guilty of disobedience of the injunction? The answer to this question requires a careful examination of the law.
7. Lord Lindlay in Seaward v. Paterson, (1897) 1 Ch. D. 545 laid down that there is a clear distinction between a motion to commit a man for breach of an injunction on the ground that he was bound by the injunction and a motion to commit a man on the ground that he has aided and abetted a defendant in a breach of an injunction. In the first case the order is made to enable the plaintiff to get his rights; in the second, because it is not for public benefit that the course of justice should be obstructed. The court has undoubted jurisdiction to commit for contempt a person not included in an injunction or a party to the action who, knowing the injunction, aids and abets a defendant in committing a breach of it. This decision was later on noticed by the House of Lords in Scott v. Scoti, 1913 AC 411 (457-459).
8. Their Lordships of the Privy Council in an appeal from India, S. N. Banerjee v. Kuchwar Lime and Stone Co, Ltd. AIR 1938 P.C. 295 clarified the position by reference to the English decision cited above and expressed that they could not find any authority for so wide a proposition urged on behalf of the respondents therein, that the doing by anyone of an act which was forbidden by the injunction was itself an offence. The facts on which their Lordships discharged the order declaring the appellants therein, who were not parties to the injunction order, guilty of contempt, were, so far as material for appreciating the ratio decidendi these.
The Secretary of State had granted to Kuchwar Lime and Stone Co. two leases with a stipulation against assignments or transfer of any right or interest thereunder, without the previous consent of the Government and provided for right of forfeiture by the Government incase of breach of the stipulations. Thereafter Kuchwar Lime and Stone Co. went into liquidation and they entered into a written agreement with one S.C. Bose for the sale to him of their right under the two leases. Later on, Kuchawar Lime and Stone Co., applied for permission of the Collector to assign the lease. The Collector refused permission and directed Bose to stop work. The Government informed. Kuchwar Lime and Stone Co. that they had forfeited the leases. In the meantime, Kalyan-pur Lime Works of which Ghose was the managing director and Banerjee the manager, took lease from the Government and took possession of the quarries and this action was approved by the Collector. Ultimately, Kuchwar Lime and Stone Co. brought a suit against the Secretary of State for a declaration that their leases had not been validly forfeited and for an injunction restraining the Secretary, his servants and agents from granting lease to Kalyanpur Lime Works, A copy of the said injunction was received by Banerjee of Kalyanpur Lime Works. Admittedly, both Ghose and Banerjee of Kalyanpur Lime Works were aware of the granting of injunction and its terms. The substantive question in the appeal before the Privy Council was whether Ghose and Banerji of Kalyanpur Lime Works were guilty of contempt of the injunction order to which they were not parties. It was in thi9 context that their Lordships took the view that the injunction was not binding on Ghose and Banerji and that they never disobeyed it and said:
'The actual wording of the injunction in the present case is 'to restrain the defendant and his servants from interfering with the plaintiffs' lease. Ghose and Banerjee are not the servants of the Secretary of State and, therefore, did not do anything forbidden by the injunction. The utmost which the respondents could say was, that the Kalyanpur Lime Company, having derived their supposed interest from the Secretary of State who had been forbidden to interfere with the respondents' lease, were acting against the spirit if not the letter of the injunction in taking or continuing in possession of the quarries, and were therefore guilty of contempt in interfering with the respondents' lease. The fact however that Ghose and Banerjee claimed on behalf of their Company to derive title rightly or wrongly (and their Lordships will assume wrongly) through the Secretary of State, cannot in their view make them liable for an act not forbidden to them (referring to Ghose and Banerjee) though forbidden to him (referring to the Secretary of State)'.
9. These cases, in terms, limit the offence of contempt by a person not a party to the injunction to cases where they aid and abet the party enjoined in the breach. Where, as in the present case, that party has not broken the injunction, it is impossible to hold that anyone has aided or abetted them in breaking it.
10. Admittedly, the appellant Sarpanch was not a party to the order of injunction passed by the Subordinate Judge on April 8, 1962 in Miscellaneous Case No. 33 of 1962 in connection with the arbitration case against the Union of India and the State of Orissa who alone were parties In the said proceedings. The question is: Can it be said that the appellant Sarpanch had in any way aided or abetted the persons so inhibited in breaking the injunction? Our answer is 'No'. The reasoning on which the Subordinate Judge had found the appellant Sarpanch guilty of disobedience of the injunction order and breach of its terms is, as stated in his judgment, this:
'The contention of the opposite party No. 4 who is examined as opposite party witness No. 2 is that he did not believe the alienation; made in Ext. 1 (letter to the Sarpanch) regarding passing of injunction order and so, the appel-lants were directed on 19-6-62 to produce copy of the order by 21-6-62 and as they could not produce the same, they were served with notice Ext. 1(b). Ext. 1 (b) does not disclose that opp. party No. 4 was not satisfied with the allegation as to injunction order or that the applicants were called upon to produce a copy of that order. So this explanation of opposite party No. 4 appears to me a mere concoction as also contended by the learned counsel for the petitioner.'
How the learned Judge draws the inference that the explanation of the appellant was a mere concoction is not understandable. What indeed the appellant Sarpanch was insisting by his letter dated June 21, 1962 Ext. 1 (b) was payment of taxes; that the tenants are bound to pay rental as they had executed an agreement to pay the rental to the Punchayet This notice given by the appellant Sarpanch does not mention about any injunction order. There was no occasion for mentioning it. Apparently the Copy of the injunction order was not produced before him. So, the Sarpanch in his usual course took steps for realisation of tax, gave notice, and threatened that if the outstanding amounts are not paid, they will be realised according to law. There is no question of any concoction as found by the learned Judge.
11. The other ground on which the Subordinate Judge based his conclusion is this :
'Of course the Sarpanch was not served with any injunction order through Court but there is no doubt that he works as an agent of the opposite party No. 2 (referring to the State of Orissa), and as such agent he violated the order of the Court knowing full well that an order of injunction was passed in respect of the suit properties'.
This piece of reasoning is not legally sound. The name of the appellant Sarpanch was not mentioned in the order of injunction. In view of the position that the injunction was issued by the Court against the Union of India and the State of Orissa alone in respect of the plots in dispute, and further that the injunction order made no mention of their servants and agents the appellant-Sarpanch cannot be found guilty for disobeying the injunction. This view finds support in the Division Bench judgment of the Calcutta High Court delivered by Chief Justice Jenkins in John Innes Marshall v. Grandhi Venkata Ratnam, AIR 1916 Cal 340: ILR 42 Cal 1169.
12. In this view of the case the order of the learned Subordinate Judge holding the appellant Sarpanch guilty of disobedience of the injunction order and breach of its terms cannot be sustained.
The said order is accordingly set aside The appeal is allowed with costs throughout.
13. I agree.