P. Govindan Nair, C.J.
1. The appellant has been fined Rs. 1,000 by N.S. Ramaswami, J. In default of payment of that sum, he was sentenced to undergo simple imprisonment for three months. The appellant has paid the fine.
2. In this appeal, it is contended by the learned Counsel that the appellant has not been really guilty of contempt, in that he had not wilfully disobeyed any order of the Court. It may be mentioned at this stage that the appellant was punished for contempt on the basis that he wilfully disobeyed the order of the Court to produce the account books of the Wakf of which he was the Muthawalli. A few more facts have to be stated to appreciate the contentions urged by his counsel at the time of the hearing of this appeal.
3. There was a suit for rendition of accounts which was numbered as C.S. No. 1 of 1965. The prayer in that suit against the appellant was only for rendition of accounts. Ismail, J., considered that suit and found that the contentions of the parties comprehended issues wider than mere taking of accounts and, therefore, dismissed the suit with permission to the plaintiff to institute a fresh suit which is more comprehensive. The dismissal was in the year, 1968. In that suit, the appellant had produced the account books of the wakf. It appears that the account books were taken away by his counsel on 6th November, 1968. In the year 1970, another suit C.C. No. 85 of 1970 was instituted for drawing up of a scheme, for administration of the Trust, for taking accounts and for setting aside the alienations alleged to have been made by the Muthawalli, the appellant, and for other reliefs. In this suit, the appellant had been directed to produce his account books on a number of occasions. He not only did not produce the account books but also was not taking any active interest in defending the suit. Ultimately, warrant had to be issued for his arrest and thereafter he appeared in Court on 11th March, 1976. It is not clear from the records before us as to what exactly transpired on that day. In the affidavit filed by the appellant on 19th July, 1976 before the trial Judge, he merely stated that he appeared in Court on 11th March, 1976, that his case was not in the list and that he was granted three weeks time to produce the account books. However, the learned Judge stated in the order that the appellant asked for time to produce the account books, that he was granted three weeks' time and that even after the lapse of three weeks, he did not produce the account books. Thereafter, an action being taken on the basis that the appellant had committed contempt, the appellant filed an affidavit in which he stated that the account books were taken from the Court by his then counsel Sri E.R. Krishna Iyer, that on enquiry made from the advocate's clerk, he learned that the (advocate's clerk) had entrusted the account books to the person who used to collect rents for the suit properties and that he was not in possession of the account books.
4. It must be mentioned here that certain account books have been produced by him. It was the case of the appellant that other than these account books, he had no other account books with him.
5. The learned Judge in the order under appeal adverted to the conduct of the appellant during the proceedings in C. S. No. 1 of 1965 and particularly the proceedings in C.S. No. 85 of 1970. He referred to the recalcitrant attitude of the appellant, his lack of co-operation and his failure to produce the account books. He came to the conclusion that the appellant was practically ignoring the proceedings in Court. From the above circumstances, it was inferred that the appellant was guilty of contempt.
6. With great respect, we are unable to agree with the conclusion reached by the earned Judge. In a case of contempt of Court, particularly when it is alleged to arise from the disobedience of an order of Court, it is well-established that the disobedience must be wilful disobedience. In the context of this case, on the facts and in the circumstances, there can be such wilful disobedience only if there is some material to indicate that the appellant had custody or control of the account books or that he was in a position to produce them in the Court and further that notwithstanding his failure to produce the account books in the Court, he wilfully kept the books away from the Court and thus wilfully disobeyed the order of the Court. While we are not at all satisfied with the conduct of the appellant and his attitude in the suit filed against him in his capacity as Muthawalli, when a greater candour and diligence is necessary, we are of the opinion that there is not enough material to come to a definite conclusion that the appellant had been guilty of wilful disobedience of the order of the Court to produce the account books. In a matter like this, we must naturally apply the rules regarding evidence that will be applicable in original cases though the contempt may be of a civil nature, for the consequence of contempt the stigma that is attached to a person who is guilty contempt and the punishment that is imposed on him are serious matters. There are very significant, consequences and, therefore, we must be wary and even at the risk of letting off a few who may be guilty, we must punish only those who shown been established without doubt to be guilty of flouring the orders of Court. We are not satisfied that the degree of proof necessary in such cases is available in this case and we are inclined to give the appellant the benefit of the doubt. We, therefore, set aside the order under appeal and allow the appeal. The fine that has been imposed on the appellant and paid will be refunded to the appellant. We would like to add that the decision on the question whether the appellant has been guilty of contempt or not will in no way affect the civil liabilities that may arise from the fact that the appellant has not made or has not been able to make available to the Court the materials, if he had any. We direct the parties to bear their respective costs.