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Ponnuswami Aiyar and ors. Vs. K. Ganapathi Aiyar, Sub-divisional Magistrate of Mayavaram - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad393
AppellantPonnuswami Aiyar and ors.
RespondentK. Ganapathi Aiyar, Sub-divisional Magistrate of Mayavaram
Cases ReferredVenkatachalpathi Rao v. Kameswaramma
Excerpt:
- .....legal assistance. the magistrate thereupon made an order dispensing with the evidence of the accused's vakil and this is what the magistrate says in his order:the court after reading the evidence of the prosecution and defence witnesses considered that the evidence of n. kuppuswami aiyar will help in the decision of the case. it accordingly adjourned the case to the 8th.... after reading the evidence again i came to the conclusion that the examination of the court witness may very well be dispensed with.... to avoid delay in the disposal i dispense with the examination of the oourt witness now present.3. the magistrate then makes a note: 'the vakil, mr. kuppuswami iyer, does not appear for argument. the case is adjourned for judgment at 3-20 p.m.' the accused however were not in a.....
Judgment:
ORDER

Venkatasubba Rao, J.

1. This is an application of a somewhat unusual kind. I have been asked to commit to prison Mr. K. Ganapati Aiyar, Sub-Divisional Magistrate of Mayavaram, for his wilful disobedience of the order of this Court, dated the 10th April, 1923. In C.C. No. 50 of 1922 pending before the said Magistrate, an application was made by some of the accused for examination as a witness of the Pandarasannadhi of Thiruvaduthurai Mutt. That application was refused by the Magistrate by his order, dated the 6th April, 1923. On the same day the parties applied for a copy of the order and the stamp papers were called for on the 9th April. They were furnished immediately, and the parties were granted the copy at 7 p.m. on the 9th. On the 10th, a revision ease was filed in the High Court impeaching the correctness of the order of the 6th and on the application of the accused at about 2-15 p.m. on the same day, I made an order staying further proceedings in C.O. No. 50 of 1922 pending the disposal of the Criminal Revision Case.

2. The case before the Magistrate was taken up in the usual course on the 11th to which date it stood adjourned. A telegram had been sent by Mr. K.S. Jayarama Aiyar, Vakil for the accused, informing the Magistrate of the order made by this Court. This telegram, it is admitted, reached the Magistrate at about 9 a.m. on the 11th. Finding that the Magistrate was not disposed to act on this telegram, a formal petition was filed supported by the affidavit of K. Sundaresa Aiyar, who was instructing the Vakil for the accused and who was also present in Court when the stay order was made by the High Court. In that affidavit, are set out the facts relating to the application to this Court and the order made staying proceedings, A copy of the telegram and the receipt obtained from the telegraph office in token of the telegram having been despatched, were annexed as exhibits to the affidavit. The Magistrate declined to adjourn the case. It is stated inter alia in his order that the accused had sufficient opportunities to have moved the High Court in time so that the order of the High Court could have been formally communicated to the Magistrate. In this he was obviously wrong, because as I have shown the accused acted with great expedition and applied for stay at the earliest possible moment. When the accused found that the Magistrate insisted upon proceeding with the case, they put in another petition stating that their own Vakil had been cited as a Court witness, that in view of the stay order they had not engaged another Vakil to represent them at the trial and that in the circumstances an adjournment should be granted to enable them to obtain proper legal assistance. The Magistrate thereupon made an order dispensing with the evidence of the accused's Vakil and this is what the Magistrate says in his order:

The Court after reading the evidence of the prosecution and defence witnesses considered that the evidence of N. Kuppuswami Aiyar will help in the decision of the case. It accordingly adjourned the case to the 8th.... After reading the evidence again I came to the conclusion that the examination of the Court witness may very well be dispensed with.... To avoid delay in the disposal I dispense with the examination of the Oourt witness now present.3. The Magistrate then makes a note: 'The Vakil, Mr. Kuppuswami Iyer, does not appear for argument. The case is adjourned for judgment at 3-20 p.m.' The accused however were not in a mood to submit to this order of the Magistrate and so they again requested the Magistrate to send a telegram to the proper officer of the High Court at their expense and ascertain if as a matter of fact the High Court did make a stay order. The Magistrate refused to comply with the request. The accused next applied for an adjournment on the ground that they intended to move the High Court for a transfer of the case to the file of some other Magistrate. This application again met with a similar fate. Mr. Kuppuswami Iyer, Vakil, whose evidence was dispensed with, then put in a memo, of appearance on behalf of the accused noting in it that at 2 p.m. the Court made an order dispensing with his evidence and also noting that the memo, itself was put in at 2-30 p.m. The correctness of these statements in the memo, is not disputed. The Vakil then commenced to argue the case, but he was told by the Magistrate that the judgment would be delivered at 3 20 p.m. and thereupon the Vakil filed the following statement dated 11th April, 1923 at 250 p.m. 'On my rising to argue the case the Court observes that the matter is ripe for delivery of judgment by 3-30 p.m. Under the circumstances I beg to submit that my argument would be of no use and as such I am unable to do any justice by making any farce of an argument at this juncture.' The Vakil thus refused to further argue the case and the Magistrate forthwith read a judgment which had been previously written and which is said to consist of about 20 to 25 typed pages.

4. These are the facts regarding which there is no controversy, and I have carefully avoided reference to the allegations made on behalf of the accused but denied by the Magistrate.

5. I shall first deal with the question of law raised. It is said that the Magistrate was not guilty of contempt as he was not bound to obey the order of the High Court until it was officially communicated to him. The Magistrate in this case had before him not only the telegram purporting to have been sent by the Vakil at Madras but there was also a sworn statement to the effect that the High Court had ordered a stay of proceedings. It is argued that it is not necessary to enquire whether the officer believed the statement or not because in no circumstances was it incumbent upon him to act upon any statement or evidence when there was no formal communication from the High Court to the officer Concerned. Apart from authority, I think this proposition is unsound. I do not think it will be in the-interests of justice to hold that an order of the High Court can be defied with impunity by a party or an officer who having knowledge of it chooses to disregard it. When orders are made or injunctions granted, the Court ' must insist that they shall be obeyed. The parties concerned may be very injuriously affected by disobedience; it may occasion loss of property or seriously imperil the liberty of a person. Apart from this, it seems tome that it is hardly consistent with the dignity of the Court to permit its orders to be disobeyed by a party who treats it with contempt. In connection with contempt proceedings this question does not appear to have been decided in India. But the English decisions have clearly laid down that notice of an order can be given otherwise than by an official communication of it. Thesiger, L.J., in Ex parte Langley 13 Ch. D. 110 observes:

That, under certain circumstances, a telegram may constitute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court.6. James, L.J., expresses himself to the same effect.

7. The same view was taken by Bacon, C.J., in In re Bryant 4 Ch. D. 98. He says:

It is perfectly clear that he (the Sheriff's Officer) knew that an act of bankruptcy had been committed, and he admits that a telegraphic communication had been made to him before the sale, of the fact that an injunction to restrain the sale had been ordered by the Court. He and the auctioneer are both equally to blame. They both violated what they must have known to be the plain law, and proceeded to sell.8. I said there are no decided oases in India on the point. In Sati Nath Sikdar v. Ratanmani Nasker (1912) Cir.L.J. 335, the question wag whether the order of the District Munsit under consideration in that case was or wag not; without jurisdiction. After the High Court directed a stay of proceedings, the Munsif made an order for assessment of mesne profits refusing an adjournment although an affidavit was filed in which it was specifically stated that the High Court had stayed proceedings, and to the affidavit was annexed as an exhibit a letter confirming the statements in the affidavit, written by the Vakil who had obtained the rule in the High Court, to the pleader in charge of the case in the Munsif's Court. Toe High Court cancelled the order for assessment of mesne profits as being wholly without jurisdiction, and very strong observations were made to the effect that the act of the Munsif plainly amounted to a contempt of the authority of the High Court. These observations are no doubt obiter dicta as there was no application before the High Court to commit the Munsif for contempt, but they express the law as laid down by English decisions. In In the matter of Surjya Narain Singh 5 C.W.N. 110 the learned Judges referring to the conduct of a Magistrate who proceeded with a case after he had been shown a telegram stating that a rule for stay of further proceedings had been granted by the High Court, observed that it was most injudicious of the Magistrate to have proceeded with the case after ha had been credibly informed that the High Court had ordered stay.

9. In Hem Chandra Kar v. Mathur Santhal 16 C.W.N. 103, the Magistrate refused to pay heed to a similar telegram, and the High Court considered that the Magistrate acted injudiciously in summarily rejecting the application for adjournment and that he ought to have directed the party to verify the statement contained in the telegram. See also Babu Ratnessari Narayana Singh v. Empress 2 C.W.N. 498.

10. In Ramanathan v. Arunachalam (1914) 38 Mad. 766, Spencer, J., takes the same view and refers to the Calcutta cases with approval.

11. Mr. T.R. Ramachandra Aiyar, who appeared for the respondent, in the course of his able argument, contended that under the decisions of this High Court his client could not be held to be guilty of contempt and relied on Queen-Empress v. Viraswami (1896) 19 Mad. 375, Muthukumaraswami Rowther v. Kuppuswami Aiyangar (1908) 33 Mad. 74 and Venkatachalapathi Rao v. Kameswaramma (1918) 41 Mad. 151. Whatever the view taken in the English decisions or the Calcutta cases may be, I am, of course, bound by the rulings of this Court. But, after having carefully considered the latter, I have come to the conclusion that they have no bearing upon the present question and that it will be wrong to say that the Madras cases have by implication introduced a new doctrine as regards the law of contempt, a doctrine which is at variance with the established rule as laid down in English Text Books and English cases of great authority.

12. In Queen-Empress v. Viraswami (1896) 19 Mad. 375, the Sessions Judge was justified in the circumstances in not believing the telegram and refusing to act upon it.

13. In Muthukumaraswami Rowther v. Kuppuswami Aiyangar (1908) 33 Mad. 74 the question to be decided had reference to the validity of a sale, and it was held that, although there was an order by the appellate Court for a stay of sale, inasmuch as the order was not communicated to the lower Court, the sale was valid. There is nothing in the report to show that the lower Court was in fact aware of the order made by the appellate Court, and in any event, this cannot be treated as an authority on the question of contempt.

14. Venkatachalapathi Rao v. Kameswaramma (1918) 41 Mad. 151 had similarly to deal with the validity of an attachment effected after an order of stay of execution made by an appellate Court, and it was held that the attachment was legally valid. In the first place, I may observe that neither the decree-holder nor the Court of first instance had notice in fact of the order of the appellate Court. The Full Bench approved of Bessesswari Chowdhurany v. Hurre Sundar Mozumdar 1 C.W.N. 226. It is to be noted that the judgment in the latter case expressly states that neither the decree-holder nor the Court executing the decree was aware of the stay order made by the appellate Court. In the second place, there is DO point connected with contempt argued before the Pull Bench and I cannot therefore accept Venkatachalpathi Rao v. Kameswaramma (1918) 41 Mad. 151 as an authority on this point.

15. Having so far stated the law as I understand it, I have next to deal with the question, did the respondent wilfully disobey the order of the High Court? In other words, did he refuse to adjourn the case knowing or having reason to believe that the High Court had stayed proceedings? [On the facts His Lordship held that the intention to defy the order of the High Court was not made out and proceeded.]

16. I must add that it is a, redeeming feature of this ease that the Magistrate has not persisted in justifying his conduct, but has on the contrary, himself and through Mr. Ramachandra Aiyar most frankly admitted its impropriety and expressed in unqualified terms regret for what has happened. I have held that the Magistrate has not been guilty of contempt but I have been able to arrive at this conclusion only by rigidly excluding every hypothesis inconsistent with his honesty even where circumstances are suspicious and I cannot therefore direct the petitioners to pay the respondent's costs. The accused had ample justification for making this application, and I may also remark that it has not been shown to me that they were guilty of obtaining any delay at any stage of the case. I should therefore dismiss this application, but make no order as to costs.


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