F.S. Gill, J.
(1) The present petitioner, Sudhir Bhasin, has alleged that he, Babu Ram Gupta, respondent No. 1 and Jagatri Lal Bhasin, respondent No. 4 are the partners of the firm constituted under the name and style of Sitapur Theatres with its head office at Delhi. The partnership deed was executed on 19-11-1965. Clause 25 of this deed contains a provision for referring the disputes to arbitration .
(2) Disputes arose between the parties. The present petitioner made an application under section 20 of the Arbitration Act for referring these disputes to arbitration. The said application came up before M. S. Joshi, J., who allowed the same and referred the disputes to the sole arbitration of a Retired Judge of the Allahabad High Court.
(3) Along with the main petition, Sudhir Bhasin, also moved an application for the appointment of a Receiver as he apprehended that Babu Ram Gupta, respondent No. 1, would misappropriate the partnership property. Vide order dated 30-11-1976, the petitioner himself was appointed as a Receiver of Laxmi Talkies, Sitapur. Aggrieved from this order, Babu Ram Gupta filed an appeal [F.A.O. (OS) 50 of 1976] before a Division Bench. In this appeal a settlement was arrived at between the parties about the appointment of the receiver and the allied matters. Based on the various undertakings given by the contemner, the following consent order was passed by the Bench on 10-5-1977 :
'AFTER hearing the learned counsel for some time on previous hearings, a suggestion had been mooted that if the Receiver is changed then the appellant would not prosecute the present appeal except to the extent of getting the receiver changed. We accordingly directed the Registry to address letters to the District Judges Sitapur and Lucknow to send names of three Advocates each from whom we could pick out one name for appointment as receiver in place of Sudhir Bhasin who had been-appointed receiver by the learned Single Judge, Three names have been received from the District Judge, Sitapur. Shri B. C. Bhattacharya, President of the Bar Association, is not acceptable because he had 'been connected with the cinema in question in the capacity of a receiver previously. With the consent of the learned counsel for the parties we, thereforee, appoint Shri Mahabir Prasad, Advocate, Secretary of the Bar Association, Sitapur, to be the receiver of Laxmi Talkies pending decision of the disputes between the parties which have been referred to arbitration. The receiver so appointed will take charge of the Laxmi Talkies forthwith from the appellant who is at present running the said cinema. Shri Mahabir Prasad will run the cinema himself or through such managers as he may appoint. He will be responsible to keep accounts, make disbursements and deposit the net proceeds in a Bank account to be opened by him in the name of Laxmi Talkies. The receiver will submit quarterly reports to this Court regarding the running of the business of the said Cinema. The first report should be submitted to this Court on or before 14th August, 1977. Each subsequent reports should be submitted by the middle of the month in which the quarter gets completed. The appellant is directed not to interfere with the receiver appointed or with the business of running of Laxmi Talkies. He will, however, give to the receiver appointed all co-operation that the receiver may require. The license for running the cinema will be taken out by the receiver in the name of Laxmi Talkies. He will approach the Deputy Commissioner, Sitapur, for issue of this license in accordance with the above directions of this Court......'
(4) The above order has been reproduced in extenso with the object of appreciating the various contentions in better perspective. It may be observed that this order has dual character, i.e. it is both mandatory and prohibitory in nature.
(5) The present application under Sections 2 and 12 of the Contempt of Courts Act, 1971 has been filed by Shri Sudhir Bhasin alleging that the above order has been disobeyed by the respondents by committing willful breach of the undertakings given to the Court by Babu Ram Gupta, respondent No. 1.
(6) It is alleged that the container (respondent No. 1) had willfully refused to deliver the possession of the Cinema to the Receiver; that he tiled objections before the District Magistrate when the Receiver had applied for the grant of a license; that he had also filed a writ petition in the Allahabad High Court against the order of the District Magistrate granting the license and had got the operation of the order stayed and that, with his collusion, a suit was also instituted in the court of a Sitapur Civil Judge and injunction was obtained restraining the receiver from taking possession of the Laxmi Talkies.
(7) It is thus submitted that respondent No. 1 has committed various acts and omissions, which constitute both civil and criminal contempt of Court.
(8) Vide order of this Court dated 19-9-1977 notice was issued to Babu Ram Gupta, respondent No. 1 alone, while the petition qua the other respondents was dismissed.
(9) Reply on behalf of Babu Ram Gupta was filed in this Court on 27-4-1978 but it was later withdrawn as is evident from the statement of Shri Satish Chandra made on 17-10-1978.
(10) Shri Chandra has stated at the Bar that the unqualified apology offered by the contemner in his reply dated 18-5-1978 be treated as withdrawn because his defense is that the entire proceedings before the trial as well as the appellate court were without jurisdiction and, thereforee, the order is a nullity, hence unenforceable. To use the language of Shri Chandra, the point regarding jurisdiction is his 'trump card'. In view of this stand, the various allegations made in the contempt petition have remained unanswered, thus unrefuted.
(11) Section 2(b) of the Contempt of Courts Act defines 'civil contempt' thus :
'Civil contempt' means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;'
In the present case the alleged willful breach of the undertaking given to the court is the central theme of the controversy.
(12) Before we embark on this controversy on merits, we feel that it would be relevant to quote here a passage from Halsbury's Laws of England (4th Edition) Volume 9 appearing at page 44. It is as follows:
'An undertaking given to the court by a person or corporation in pending proceedings on the faith of which the court, he tiled objections before the District Magistrate when the Receiver had applied for the grant of a license; that he had also filed a writ petition in the Allahabad High Court against the order of the District Magistrate granting the license and had got the operation of the order stayed and that, with his collusion, a suit was also instituted in the court of a Sitapur Civil Judge and injunction was obtained restraining the receiver from taking possession of the Laxmi Talkies sanctions a particular course of action or inaction, has the same force as an injunction made by the court and a breach of the undertaking is misconduct amounting to contempt.'
This shows how breach of an 'undertaking' can result in contempt of court, and can be visited with punishment.
(13) Now we come to the contention of Shri Satish Chandra regarding jurisdiction. He has relied on Kiran Singh and others v. Chaman Paswan and others, : 1SCR117 where it is held :
'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 of 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.'
This decision has no application to the facts of the present case. Shri Chandra has admitted that a consent order was passed by the appellate court on 10-5-77. Regarding territorial jurisdiction, Miss Sieta Vaidyalingam, the learned counsel for the petitioner, has pointed out that a similar objection was taken before the trial court, but it was repelled by a speaking order. This is not denied by the contemners' counsel. On the other hand he has admitted that this order was neither modified nor varied by any appellate court. Consequently, it had become final.
(14) In Sultan Ali Nanghiaiia v. Nur Hussain Air 1949 Lah 131 , relied on by the counsel for the contemner, it was held that if an order is found to be without jurisdiction, it is void and binds nobody and that its disobedience does not constitute contempt. There is no row about the principle of law enunciated therein, but in the present case the question of jurisdiction has already been heard and decided. It is, thereforee, quite futile and ineffectual to raise it again. Similarly, Bahrein Petroleum Co. Ltd. v. P. J. Pappu and another, : (1966)IILLJ144SC has absolutely no relevancy to the facts of the present case.
(15) The only other decision relied on by Shri Chandra is David Sassoon Ezekiel v. Najia Noori Reuben Air 1931 Bom 402 , which lays down the general rule that a party in contempt is not entitled to be heard does not apply to a case in which the order for which the breach of contempt is alleged is challenged on the ground of want of jurisdiction'. This too has no application as in the given case the question of jurisdiction has already been finally decided on merits.
(16) Shri Satish Chandra has further canvassed that in the present collateral proceedings the question of jurisdiction can still be raised. We cannot countenance to such a lusterless argument. The objection regarding jurisdiction was once raised and decided. It cannot be re-opened or reagitated even in the present ancillary proceedings.
(17) The point which glares is : whether the contemner can willfully disobey an order of the Court which he considers to be erroneous and illegal, being without jurisdiction. The answer, without any demur, is in the negative.
(18) The cardinal principal is that so long as the order of a court is in operation it has to be obeyed till the same is modified or dissolved by the appellate forum or by a review application. This is obviously to uphold the majesty of the law Courts, which are impartial tribunals.
(19) In the present case the final order on the application for the appointment of a receiver was passed by the appellate court with the consent of the parties. The contemner had undertaken to deliver the possession of the Talkies to the Receiver. He had further undertaken that he would not interfere with the Receiver running the Laxmi Talkies and that he would extend full cooperation to him. In the agreed order it was further recited that the license would be taken by the Receiver from the District Magistrate, Sitapur, in his own name.
(20) Instead of respecting the undertakings, there had been flagrant breach thereof by the contemner. His defiant attitude to obtained the due execution of the order of this Court is amply demonstrated by his conduct. When after the receipt of the order of the Court, the Receiver tried to contact the contemner for taking the possession of the property, the latter, on most flimsy and made-up grounds, avoided meeting him with the deliberate and calculated object of holding on the possession as long as he could. With his dilatory tactics he did succeed to some extent.
(21) At every stage there was willful obstruction on the part of the contemner. So much so, when the Receiver applied to the District Magistrate for the grant of a license, he filed written objections simply for putting obstacles. When those objections were dismissed and the license was granted, the matter did not end there. The contemner even challenged that order in a writ petition before the Allahabad High Court. In the final analysis the same was, however, dismissed. It, however, amply manifests the conduct of the contemner how scant respect and hostile consideration was given to the order of the Court.
(22) There also seems force in the contention of the learned counsel for the petitioner that the contemner had engineered to obtain an order from a subordinate court at Sitapur restraining the Receiver from taking the possession. The suit was, of course, filed by a third party. That order was later on vacated. The bona fide intention of the contemner to hold on with the possession is, however, reflected from this fact.
(23) Thus it is obvious that the contemner gave the undertakings to gain lime for prolonging the possession although from the very inception he had mala fide intention. He resisted and flouted the order of the Court, which was both prohibitory and mandatory. It was a calculated attempt on his part to interfere with the administration of justice. The violation is clearly willful and contumacious signifying disrespect and disregard to the Court.
(24) Further, the contemner had clear knowledge of the order, being a consenting party. But he conducted himself in a way so as to intentionally defeat or stultify the order. In doing so he has made himself liable for the contempt. A party cannot be permitted to give an undertaking to the Court and then flout the same with impunity. Nor he can be allowed to have recourse to such dubious means by managing to obtain an order from a subordinate court and also raise objections before the District Magistrate and then file a writ petition.
(25) A receiver appointed in a case is an officer of the Court. The authority of the Court is thus symbolically present in such an officer. The contempt of a Receiver is thereforee a contempt of the Court. In this case the contemner had caused obstruction in the discharge of the duties of the receiver at every stage. This clearly constituted interference with administration of justice and its officers. The contemner has thus willfully obstructed the implementation of the order of this Court and has thereby committed its civil contempt.
(26) In the petition it is also mentioned that Babu Ram Gupta has committed criminal contempt as well. The petitioner has no locus standi to proceed qua this kind of contempt. The statutory procedure for a criminal contempt is prescribed in Section 15 of the Contempt of Courts Act. 1971, whereunder the motion can be made by the Advocate General or by a person with the consent in writing of the the license was granted, the matter did not end there. The contemner even challenged that order in a writ petition before the Allahabad High Court. In the final analysis the same was, however, dismissed. It, however, amply manifests the conduct of the contemner how scant respect and hostile consideration was given to the order of the Court. Advocate General. The third method is on the motion of the Court itself. A private party has thus no right to make a motion. It can only Jay the information before the Court and it is entirely for the court to act on the same. In the present case the part of the petitioner had ended with the furnishing of the information. Now it is entirely for the court to take cognizance and proceed further. So far we have not chosen to act on our own motion.
(27) Acts of non-feasance and malfeasance committed by Babu Ram Gupta fully establish that he has committed civil contempt of this Court.
(28) Now we come to the question of punishment. We are alive to the fact that power to punish a contemner has to be exercised with forbearance and circumspection. In this case the conduct of the contemner had not only been persistent and adament, but also unrelenting and inexorable. This is highly reprehensible. The contemner has intentionally offended and undermined the dignity of the Court by his flagrant disobedience and wanton disregard. There is absolutely no mitigating circumstance to take a lenient view. We feel any leniency shall be misplaced. The deliberate and grave contempt thereforee calls for punishment, which should commensurate with his conduct. We consider that mere fine will not meet the ends of justice and that a sentence of imprisonment is necessary.
(29) We accordingly order that the contemner be detained in civil prison for a period of four months. He is directed to be taken in custody.