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S.S. Roy Vs. Damodar Valley Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 994 of 1973
Judge
Reported inAIR1974Cal69,78CWN144
ActsContempt of Courts Act, 1952 - Section 1
AppellantS.S. Roy
RespondentDamodar Valley Corporation and ors.
Appellant AdvocateMridula Sicka (Bhattacharyya), Adv.
Respondent AdvocateP.N. Mitra and Dhruva Kumar Mukherjee, Advs.
Cases ReferredIndian Airlines Corporation v. Sukhdeo Rai
Excerpt:
- .....judge, 7th court, alipore, disk 24-parganas, rejecting the petitioner's application for staying misc. appeal no. 63 of 1973 (wrongly recorded as misc. case no. 63 of 1973), till the disposal of the misc. judicial case no. 36 of 1973, pending before the learned district judge, alipore, dist. 24-parganas.2. the point involved arises in the back-drop of the following facts. the plaintiff-petitioner, who is a member of the indian administrative service, filed title suit no. 332 of 1972 in the 2nd court of the munsif at alipore on 4-12-1972 against the damodar valley corporation and other defendants for a decree for permanent injunction, restraining the defendants from interfering and/or attempting to enforce an order dated 1-12-1972 purported to be an order of release, indicating that the.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule brings to light an intriguing point of some importance. The Plaintiff is the Petitioner and the Rule is directed against an order dated 17-3-1973 passed by Shri M. Roy, Addl. District Judge, 7th Court, Alipore, Disk 24-Parganas, rejecting the Petitioner's application for staying Misc. Appeal No. 63 of 1973 (wrongly recorded as Misc. Case No. 63 of 1973), till the disposal of the Misc. Judicial Case No. 36 of 1973, pending before the learned District Judge, Alipore, Dist. 24-Parganas.

2. The point involved arises in the back-drop of the following facts. The Plaintiff-Petitioner, who is a member of the Indian Administrative Service, filed Title Suit No. 332 of 1972 in the 2nd Court of the Munsif at Alipore on 4-12-1972 against the Damodar Valley Corporation and other Defendants for a decree for permanent injunction, restraining the Defendants from interfering and/or attempting to enforce an order dated 1-12-1972 purported to be an order of release, indicating that the services of the Petitioner, who was on deputation in D.V.C. as Deputy Secretary, are replaced at the disposal of the Government of Bihar with immediate effect. Along with the suit an application under Order 39. Rules 2 and 3 read with Section 151, Civil Procedure Code was also filed for an order of temporary injunction. The learned Munsif issued notices calling upon the Defendants to show cause within ten days from receipt of the notices as to why the prayer for ad interim injunction shall not be allowed and in the meanwhile issued an order of ad interim injunction restraining the Defendants from giving effect to the order dated 1-12-1972 till the disposal of the injunction matter. The Defendants put in their appearances and contested the injunction matter. By his order dated 20-1-1973, the learned Munsif ultimately vacated the order of injunction and on prayer made by the Petitioner, the learned Munsif by his order dated 27-1-1973 stayed the operation of his order dated 20-1-1973 till 31-1-1973.

3. The Plaintiff-Petitioner preferred an appeal, being Misc. Appeal No. 63 of 1973 (wrongly recorded as Misc. Case No. 63 of 1973), before the learned District Judge, Alipore, Dist. 24-Par-ganas, against the aforesaid order dated 20-1-1973 vacating the order of injunction. A prayer was also made for an ad interim injunction. The learned District Judge passed an order calling for the record and for issue of notices on the Respondents. The plaintiff-petitioner also filed an application for staying the operation of the order appealed against as also for an order of temporary injunction, restraining the Respondents from giving effect to the order dated 1-12-1972 and from disturbing the Plaintiff from discharging his duties as an officer in the post he held. On 31-1-1973 the learned District Judge directed a stay of operation of the order dated 20-1-1973. It was thereafter submitted by the Plaintiff that there was a violation of the stay order and an application for contempt under Section 3, Clause (1) of the Contempt of Courts Act was filed on 16-3-1973 before the learned District Judge and it was further prayed that pending the hearing of the contempt matter the opposite partiesmay be restrained from appearing and/or defending the Misc. Appeal No. 63 of 1973 which was since transferred to the 7th Court of Additional District Judge at Alipore. On the 16th March, 1973 the learned District Judge registered the contempt application as Misc. Judicial Case No. 36 of 1973 and on the petition for temporary injunction, he issued notices on the Defendants-Opposite Parties to show cause as to why they shall not be restrained from appearing and/or defending the Misc. Appeal No. 63 of 1973 pending in the 7th Court of the Additional District Judge. He however rejected the prayer for temporary injunction in the meanwhile, inter alia, on the ground that an enquiry was yet to be made on the merits of the said application as to whether a reference will be made to the High Court for taking appropriate steps. The Plaintiff-Petitioner thereafter applied before the learned Addl. District Judge, 7th Court, Alipore for staying the hearing of the Misc. Appeal No. 63 of 1973 till the disposal of the Misc. Judicial Case No. 36 of 1973 pending before the learned District Judge. The said prayer was rejected on 17-3-1973 by the learned Addl. District Judge, 7th Court, Alipore, who however was pleased to grant time till 4-4-1973 to bring an order of stay from the High Court and fixed the hearing of the Misc. Appeal on the 7th April, 1973.

4. The Plaintiff-Petitioner movedagainst the aforesaid order and obtained the present Rule on 3-4-1973 as also an order for ad interim stay. On 9-5-1973 an application was filed on behalf of the Plaintiff-Petitioner for a direction on the Respondents Opposite Parties to make payment of the monthly salaries including other amenities to the Plaintiff Petitioner from March, 1973 onwards in accordance with law. On the 7th June, 1973 this Court directed the application to be heard along with the substantive Rule and fixed the date of hearing. An affidavit-in-opposition, affirmed on the 12th June, 1973, and an affidavit-in-reply thereto, affirmed on the 2nd July, 1973, were filed in the substantive Rule; and an affidavit-in-opposition dated 24-4-1973 and an affidavit-in-reply dated 4-6-1973 were filed in the connected application.

5. Mrs. Mridula Sicka (Bhattacharyya), Advocate, appearing in support of the Rule, made a two-fold submission. The first dimension of her submissions is that the Misc. Appeal No. 63 of 1973 pending before the learned Additional District Judge, 7th Court, Alipore should have been stayed till the disposal of the Misc. Judicial Case No. 36 of 1973 pending before the learned District Judge, 24-Parganas, inasmuch as a party alleged to be a contemner should not be permittedto proceed further until he is purged of contempt. Several cases were cited by her in this context and the same will be considered in the proper context. The second dimension of Mrs. Bhattacharyya's contention is that in any event in view of the order passed by the learned District Judge himself, staying the operation of the order passed by the learned Mun-sif, vacating the interim order of injunction, the Plaintiff-Petitioner should be allowed to have his monthly salaries including medical facilities and other amenities from March 1973 onwards till the disposal of the Misc. Appeal No. 63 of 1973 in the 7th Court of the Addl. District Judge and/or till the disposal of the Civil Rule No. 994 of 1973 pending before the High Court.

6. Mr. P. N. Mitra, Sr. Advocate (with Mr. Dhruva Kumar Mukherjee, Advocate), appearing on behalf of the Defendant-Opposite Parties Nos. 1 and 2, joined issue. Mr. Mitra contended that the alleged contemners are not the appellants in the pending appeal, and as a date therein has already been fixed for hearing, the same should be disposed of as expeditiously as possible in the own interests of the Plaintiff-Petitioner who is the Appellant before the learned Addl. District Judge, 24-Parganas. Mr. Mitra further submitted that there is no reason why the said Misc. Appeal should be stayed pending the disposal of the contempt proceedings delaying the disposal of the appeal indefinitely, more so in view of the fact that the Plaintiff-Petitioner has already obtained an order staying the operation of the learned Munsif's order dated 20-1-1973. Mr. Mitra also relied on several decisions in support of his contention and the same would be considered in the proper context. As to the second dimension of Mrs. Bhattacharyya's arguments with regard to the payment of monthly salaries including other amenities, Mr. Mitra contended that in the substantive Rule itself there is no specific prayer relating to the same and on merits also the same is not tenable because as soon as the Petitioner was released by the Damodar Valley Corpn., his services stood transferred to the services under the Bihar Cadre. Besides his replies to the two points raised on behalf of the Plaintiff-Petitioner, Mr. Mitra further submitted that on merits also the Misc. Appeal pending before the learned Addl. Dist. Judge, 24-Parganas is not maintainable because the proper remedy in such cases is by way of specific performance. In this context, Mr. Mitra relied on the decision of the Supreme Court in the case of Indian Airlines Corporation v. Sukh Deo Rai reported in : (1971)ILLJ496SC .

7. The first dimension of Mrs. Bhattacharyya's submission is one of lawand goes to the root of the case. Her broad submission is that contempt of Court is a serious misconduct and the contemner, alleged to have contumaciously violated an order of the Court, should not be allowed to proceed any further in a case, as otherwise it would only put a premium on such blatant violations and lower the dignity of the Court. In support of her contention Mrs. Bhatta-charyya referred to several authorities and relied on some decisions. She referred to the observations in Oswald's 'Contempt of Court' (3rd Edn.) Chapter XIII that

'The general rule is that parties must clear their contempt before they can be heard, so that a party in contempt, that is to say, one against whom a writ of attachment has issued or an order for committal has been made, cannot make an application in the cause until he has purged his contempt'.

She further relied on the observations that

'A plaintiff ... ... ...in contempt may, it seems, proceed in other proceedings even though they art between the same parties.'

and contended that the contemner cannot proceed in the same proceeding without being purged of contempt. A reference was also made by the learned Advocate to 'The Contempt of Court under the Constitution' by V. G. Ramachandran wherein the author observed in Chapter III dealing with the Law in England that

'A person in contempt cannot be heard unless he has purged himself of it The general rule that the Court would not entertain an application by a person in contempt until he had purged his contempt is confined to proceedings in the same cause.'

Mrs. Bhattacharyya then proceeded to refer to the case of Raj Rajeswari Jiu v. Gati Krishna Chakravarti reported in 39 Cal LJ 217 = (AIR 1924 Cal 953) and relied on the observations made by Sir Asutosh Mookerjee, delivering the judgment of the Court at pages 220 and 221 that

'It is unquestionable that the breach of an undertaking given to the Court by a litigant, pending proceedings, on the faith of which the Court sanctions a particular course of action or inaction is misconduct amounting to contempt. It is further well settled that when a person is guilty of such contempt he places himself in a perilous situation so as not to be heard by the Court till he has purged his contempt.'

A reference in this context was further made to the case of Hadkinson v. Hadkinson reported in 1952 (2) All ER 567. Mrs. Bhattacharyya pin-pointed the observations of Lord Denning at pages 575 that

'if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.'

The learned Advocate further referred to the case of Kruthiventi Kutumba Rao v. Muthi Venkata Subba Rao reported in : AIR1969AP47 wherein Mr. Chief Justice Jaganmohan Reddy delivering the judgment of the Court observed at pages 53 and 54 that

'So long as there is an order by the Court which requires compliance not only, parties but even third parties who are not parties to the suit and who have notice of the same will be liable for contempt for the disobedience of such orders or for obstructing the execution of the same. Whether the order is valid or irregular unless it is vacated, it has got to be obeyed.'

Mrs. Bhattacharyya ultimately contended that the position in law is well settled and a contemner unless he purges his contempt should not be allowed to proceed any further, continuing thereby the contumacious disregard of law and order already made.

8. Mr. P. N. Mitra, Advocate, appearing on behalf of the Defendants-Opposite Parties Nos. 1 and 2 contended that the proposition of law put forward by Mrs. Bhattacharyya is over expansive and the same has been qualified by the principles laid down by leading authorities as also the imprimatur of judicial decisions. Mr. Mitra also relied on Oswald and submitted that the observations quoted therefrom by Mrs. Bhattacharyya have been qualified by the following observations :--

'But this is subject to various exceptions. He may be heard if his object is to get rid of the order or other proceeding which placed him in contempt, or to appeal against or resist proceedings taken subsequently to his contempt on the ground of irregularity or want of jurisdiction.'

and further submitted that the alleged contemner in the present case sought to proceed in other proceedings and not in the same one. Mr. Mitra next submitted that V. G. Ramachandran in his 'Contempt of Court' also referred to the other view viz. that the general Rule 'is confined to proceedings in the same cause' and does not prevent the contemner toproceed in other proceedings, even though they are between the same parties. The learned Advocate next referred to the imprimatur of judicial decisions and relied on the case of Dharmapal v. Mohunt Krista Dayal reported in (1909) 10 Cal LJ 631 wherein Sir Asutosh Mookerjee delivering the judgment of the Court referred Daniel's 'Chancery Practice' as a work of high authority and observed at page 636 that

'These provisions in my opinion make it manifest that simply because a party is found to be in contempt the Court is not bound to deny him all assistance or protection but the Court will act in such a manner as will maintain its own dignity and at the same time subserve the ends of justice.'

It was further observed that a party against whom a decree has been made which specifies a time for its performance is not, merely by reason of his failure to carry out the orders of the Court, guilty of such contempt so as to disentitle him to protection from the Appellate Court. Mr. Mitra thereafter referred to the case of Gordon v. Gordon and Gordon (Co-respondent) reported in (1904) PD 163 and relied on the observations made by Vaughan Williams L. J. at pages 171-172 that

'this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part -- when he comes and asks for something, and not to cases in which all that he is seeking is to be heard in respect of matters of defence ............ But whenyou come to the case of an order which it is suggested may have been made without jurisdiction, if upon looking at the order one can see that that really is the ground of the appeal, it seems to me that such a case has always been treated as one in which the Court will entertain the objection to the order, though the person making the objection is in contempt.'

Mr. Mitra ultimately submitted that in the facts and circumstances of the present case there is no bar, legal or otherwise, to the Misc. Appeal No. 63 of 1973 being proceeded with, more so because the Plaintiff Petitioner is the Appellant therein, and accordingly the learned Addl. District Judge has rightly rejected the Petitioner's application for staying the same.

9. The point raised is undoubtedly of an old vintage, coming down the corridor of time and going back many centuries in our law. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimatur of judicial decisions. It is pertinent therefore to refer to the backdrop against which this principle arises. That a party in contempt will not be heard was never a rule of the common law, but as was observed by Lord Justice Denning, 'a rule of the canon law, which was adopted by the ecclesiastical Court and the chancery Courts'. The history of the rule in Chancery, as it appears from Beams' orders in Chancery page 35, shows that it originated in the 78th Ordinance of Lord Bacon of 1618. It laid down that 'they that are in contempt are not to be here, neither in that suit nor any other, except the Court of special grace suspend the contempt.' It also appears from Gilbert on Forum Romanum 102 that Lord Chief Baron Gilbert laid it down as a general rule that 'the contemner, who is in contempt, is never to be heard by motion or otherwise till he has cleared his contempt and paid the costs'. The ordinance of Lord Bacon though used for enforcing orders in Chancery was never applied unless the contempt had been established by the issue of a writ of attachment or an order for committal. It is only then that the party became a party in contempt and the Court would not hear him. The said ordinance however and the limitations referred to above were found to be capable of working great injustice and as was observed by Lord Justice Denning in (1952) 2 All ER 567 'in the course of practice, it came to be much restricted in scope. It was confined to cases where a party in contempt i.e. a party against whom a writ of attachment had been issued or an order of committal had been made, came forward voluntarily and asked for an indulgence in the same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was allowed to be heard unless an order had been made staying the proceedings.' It is pertinent in this context to refpr to Daniel's 'Chancery Practice' (7th Edn., Vol. 1) page 725 that

'a party in contempt for non-obedience to an order in one cause will not be thereby prevented from making an application to the Court in another cause relating to a distinct matter, although the party to such other cause may be the same.'

In the case of Taylor v. Taylor reported in (1849) decided by 1 Mac & G. 397 = 41 ER 1318 it was observed that 'the circumstance of the plaintiff being out of the jurisdiction and in contempt for non-compliance with the decree made, did not prevent his filing the bill in question'. The observations of Lord Cottenham, L. C. were approved of again and again in a series of cases. It has been stated in Halsbury's 'Laws of England'(3rd Edn.) Vol. 8, Section 4, Paragraph 73 that 'probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing the obedience.' Lord Justice Denning also observed ultimately, after discussing the history of the principle in (1952) 2 All ER 567 already referred to above that

'applying this principle, I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues, it impedes the course of justice for the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.'

I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharyya stands qualified as above.

10. It is quite true that contempt of Court is not an ordinary proceeding and the question involved is a serious one. It is true again, as was observed in the case of Dhrubadeo Tewari v. Thakilal Ganguly reported in (1971) 75 Cal WN 856 that

'the halo of solemnity surrounding the Courts of justice since the dawn of civilisation should not be allowed to be disturbed by a blatant interference with its orders, defiling thereby the sacred temples where justice is dispensed by the high priests, the judges'.

But the proposition propounded by Mrs. Bhattacharyya is too wide and on ultimate analysis I hold that the same is not in any way an absolute proposition of law but only a qualified one, being subject to the various exceptions referred to above. Apart from the point of law, the basis of facts cannot also be overlooked. Only an application has been filed for contempt before the learned District Judge, Alipore Dist. 24-Parganas, being Judicial Misc. Case No. 36 of 1973 and as yet, as the learned District Judge himself, found, an enquiry is yet to be made on the merits of the said application as to whether on the establishment of a prima facie case a reference would be made to the High Court recommending appropriate steps. The contempt therefore has not been prima facie established by the issue of a writ of attachment or an order for committal. The prayer for stay made on behalf of the Plaintiff-Petitioner,therefore is premature and the first dimension of Mrs. Bhattacharyya's contention accordingly fails.

11. I will now proceed to consider the second dimension of Mrs. Bhattacharyya's contention that in any event, in view of the order passed by the learned District Judge himself, staying the operation of the order passed by the learned Munsif, vacating the interim order of injunction, the Plaintiff-Petitioner should be allowed to have his monthly salaries including medical facilities and other amenities from March, 1973 onwards. Mr. Mitra's objection to the said prayer is that there is no specific prayer to the said effect in the main Rule and that on merits also the same is not tenable because as soon as the Plaintiff-Petitioner was released by the Damodar Valley Corporation his services stood transferred to the Bihar Cadre. Mrs. Bhattacharyya referred to the order dated the 17th March, 1973 passed by Shri M. Roy, Addl. District Judge, 7th Court, Alipore whereby, on an application dated 20-2-1973 filed on behalf of the Plaintiff-Petitioner for a direction for payment of the salaries etc. on the ground of hardship, the learned Judge ultimately directed without committing the Court to the merits of the appeal, that the Respondent-Opposite Party No. 1 should pay to the Plaintiff-Petitioner his salaries for the months of January and February 1973. There is undoubtedly no specific prayer made in this behalf in the application filed under Section 115, Code of Civil Procedure, excepting a general prayer for passing such other order or orders as this Court deems fit and proper. There is however a specific application for a direction on the Respondents Opposite Parties for making the payment of monthly salaries, including other amenities to the Plaintiff-Petitioner from March, 1973 onwards. Mrs. Bhattacharyva referred to the illness and the death of the mother of the Plaintiff-Petitioner, who himself had a spate of troubles, including thrombosis and ultimately submitted that being placed in this predicament, the carriage of the proceedings has become a veritable Odyssey for him. She ultimately pressed her prayer on the ground of equity, without entering into the merits of the case. Having heard the learned Advocates appearing on behalf of the respective parties, and without committing myself to the merits of the case, which would be decided in due course on proper materials. I hold that without any prejudice to the rights and contentions of the respective parties the respondent-opposite party No. 1, Damodar Valley Corporation should pay to the plaintiff-petitioner his salaries for the months March to August 1973. The second dimension of Mrs. Bhattacharyya's contention is disposed of accordingly.

12. An ancillary submission made by Mr. P. N. Mitra now abides my consideration, viz. that the present Rule should in any event be discharged also on the ground that the suit itself in the Court below as also the appeal arising out of the same are not maintainable, inasmuch as a proper remedy in such cases is by way of specific performance. To lend assurance to his contentions Mr. Mitra relied on the case of Indian Airlines Corporation v. Sukhdeo Rai reported in : (1971)ILLJ496SC and referred to the observations of Mr. Justice Shelat delivering the judgment of the Court that

'Section 45 of Air Corporation Act, 1953 does not cast any obligation upon the Indian Airlines to appoint employees under any particular type of contract or to terminate them on specific grounds and hence though Corporation employee is dismissed in contravention of Regulation made under the Act, the dismissal cannot be declared as null and void the respondent at best shall be entitled to damages.'

In view however of the findings arrived at by me before and the ultimate order, I am going to pass, it is not necessary for me to enter into the merits and I make it quite clear that I make no such observations on the same, leaving the same to be decided by the Court below in due course. The ancillary submission of Mr. Mitra is thus disposed of.

13. Before I part with the case, I must place on record my appreciation at the manner in which the case was placed by Mrs. Bhattacharyya and Mr. Mitra, the learned Advocates, appearing on behalf of the respective parties; and the troubles they had taken in assisting the court to come to a proper decision.

14. In the result, I discharge the Rule; vacate the order for ad interim stay granted by this court; and I uphold the order dated 17-3-73 passed by Shri M. Roy, Addl. District Judge, 7th Court, Alipore, Dist. 24-Parganas rejecting the plaintiff-petitioner's application for staying the Misc. Appeal No. 63 of 1973 (wrongly recorded as Misc. Case No. 63 of 1973) pending before the learned Dist. Judge, Alipore, Dist. 24-Parganas. I further direct that the learned District Judge, Alipore shall dispose of the Misc. Appeal No. 63 of 1973 pending before him expeditiously within a fortnight of the date of receipt of notice of arrival of records in the Court below after giving due opportunities to the party concerned of being heard.

15. As to the connected application, I direct, without making any observation on the merits of the case and with-out any prejudice to the rights and contentions of the respective parties, that the respondent-opposite party No. 1, Damodar Valley Corporation, shall pay, as early as possible, to the plaintiff-Petitioner the salaries due to him from March 1973 uptil August 1973. The application is disposed of accordingly.

16. The affidavits filed in the Rule as also in the application are to be kept on the record and there shall be no order for costs in both the Rule and the application.

17. The record shall go down expeditiously.


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