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Dharnidhar Singha Roy and ors. Vs. Satish Chandra Giri and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKolkata
Decided On
Reported inAIR1932Cal705,140Ind.Cas.140
AppellantDharnidhar Singha Roy and ors.
RespondentSatish Chandra Giri and ors.
Cases ReferredP. Roy Chaudhuri v. Nolini Prokas Sen A.I.R.
Excerpt:
- .....an estate called mauza jagannathpur and a group of properties described in the estate papers as maiji sharista.2. the plaintiffs' case is that both mauza jagganathpur and maiji sharista are debuttar properties; the defendant maintains that mauza jagannathpur is secular and the property of his chela probhat chandra giri opposite party no. 2, and that maiji sharista is also secular and the property of one kashinath missir. the defendant says that kashinath missir is his nephew (sister's son), the plaintiffs say that he is the defendant's illegitimate son. on 7th july 1925 a receiver was appointed by the district court of all the properties in suit with power to ascertain such properties and take possession. by virtue of such order it is said that the receiver took possession of.....
Judgment:

Panckridge, J.

1. This is a Rule obtained by certain of the plaintiffs in Suit No.28 of 1922 in the Court of the District Judge of Hooghly calling on the defendant and three other persons to show cause why they should not be committed for contempt of Court on account of the acts charged in the petition and in the affidavits annexed thereto. The proceedings are taken under the Contempt of Courts Act 1926, Section 2 (1) of which confers upon the High Courts the same jurisdiction, powers, and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to them as they have and exercise in respect of contempts of themselves. The suit was instituted under Section 92, Civil P. C., with the sanction of the Collector of Hooghly under Section 93, Civil P. C., for the removal of the defendant from his position as Mahant of the Tarakeswar mutt and for the framing of a scheme for the management of the mutt. Among the properties in suit are an estate called Mauza Jagannathpur and a group of properties described in the estate papers as Maiji Sharista.

2. The plaintiffs' case is that both Mauza Jagganathpur and Maiji Sharista are debuttar properties; the defendant maintains that Mauza Jagannathpur is secular and the property of his chela Probhat Chandra Giri opposite party No. 2, and that Maiji Sharista is also secular and the property of one Kashinath Missir. The defendant says that Kashinath Missir is his nephew (sister's son), the plaintiffs say that he is the defendant's illegitimate son. On 7th July 1925 a receiver was appointed by the District Court of all the properties in suit with power to ascertain such properties and take possession. By virtue of such order it is said that the receiver took possession of Jagannathpur and Maiji Sharista. The order of the District Court was modified by this Court by two orders of 8th January 1926 and 20th March 1926, the result of which was that the appointment of the receiver was confirmed as regards the properties admitted to be debuttar, but he was directed to make over possession of 30 specific properties claimed by the defendant as his nij properties. Those 30 properties did not include Jagannathpur or Maiji Sharista.

3. The plaintiffs appealed against the order of the High Court to His Majesty in Council and pending the appeal execution of the order was stayed. On 15th December 1927, the plaintiffs' appeal was dismissed and thereafter the 30 properties already mentioned were made over to the defendant. On 6th November 1929 the learned District Judge decreed the suit and ordered the removal of the defendant from the mahantship. He found all the properties in suit were debuttar and directed that pending the appointment of another mahant the receiver should take possession of all thy properties including those claimed by the defendant as his nij properties. The defendant appealed to this Court and on 20th December 1929 obtained an order for stay of execution of the decree in so far as it directed possession of the nij properties to be made over to the receiver. Ever since the receiver was first appointed complaints have been frequent before the learned District Judge that the defendant and his agents have been obstructing the receiver in the performance of his duties.

4. Proceedings have from time to time been taken against such agents but have been discontinued upon an apology being tendered by the persons concerned. An undertaking given by the defendant on 28th January 1929 in connexion with one of such proceedings is of importance. It is in the following terms:

I hereby undertake that I will not realize any rent from the tenants of Maiji Sharista either in my own name or in the name of Kashinath Misser. I will never object at any time to the receiver realizing rent from the Maiji's estate and the receiver will be at liberty to pro-claim his possession by beat of drum of the estate called Maiji Sharista.

5. This undertaking was duly proclaimed in the manner contemplated. It is alleged that the defendant in breach of this undertaking continued to interfere with the receiver's possession of Maiji Sharista, as also with his possession of Jagannathpur. These matters were brought to the notice of the District Judge by a report made by the receiver on 29th January 1930 supplemented by a subsequent affidavit. The District Judge investigated the matter and took oral evidence and finally on 9th January 1931 he referred the matter to this Court recommending that the present opposite parties be punished for contempt of Court. The reference made by the District Judge was dealt with by Lort Williams and S.K. Ghose, JJ., on 11th March 1931: Amulya Charan v. Satis Chandra : AIR1932Cal254 . They held that the proceedings before the District Judge were 'without jurisdiction and that the application should have been made direct to this Court by the party aggrieved. However to avoid multiplicity of proceedings they treated the petition and affidavit of the receiver as an application made to them and directed a Rule to issue on the present opposite parties calling on them to show cause why they should not be committed for contempt. The rule was-heard by C. C. Ghose and Pearson, JJ., on 11th August 1931 : Amulya Charan Bhaduri v. Satis Chandra Giri : AIR1932Cal255 . The Court holding that the charges were not made with sufficient precision and that the allegations were not verified as required by law discharged the Rule observing however that there was nothing, in the judgment to prevent any party applying for necessary orders should occasion arise.

6. The present petition is dated 10th September 1931 and eight affidavits are used in support. The Rule was issued by Pearson and Mallik, JJ., on 1st December 1931. During the hearing before us the opposite party Narendra Nath Samanta has through his counsel, the learned Advocate-General, admitted that he has been guilty of contempt and has tendered a humble apology and thrown himself on the mercy of the Court. The learned Advocate-General in showing cause has complained that the petition is not verified by any of the plaintiffs or by the receiver but by one Earn Chandra Chattapadhya, who describes himself as the agent of the plaintiffs. He points out that with regard to the material allegations against the opposite parties Earn Chandra does not profess to speak of his own knowledge but to rely on information received from the various persons who have sworn the affidavits used in support of the Rule.

7. Dr. Sen Gupta for the petitioners accepts this position and admits that he must succeed or fail on the materials contained in these affidavits. Two of the affidavits are sworn by Debendra Nath Singh Ray and Bejoy Krishna Ghosh, employees of the receiver. (After dealing with the evidence of these persons, the Court proceeded.) Before dealing with the merits the learned Advocate-General in showing cause raised various points of law. He drew our attention to Section 2 (3), Contempt of Courts Act which provides that no cognizance shall be taken of a contempt under the Act where such contempt is an offence punishable under the Indian Penal Code. Therefore he argues that even if we come to the conclusion that tenants have been intimidated or abused we cannot on that account deal with the offenders in these proceedings, since intimidation and insult are punishable under Ch. 22, I. P. C.

8. Dr. Sen Gupta maintains that this construction of Section 2 (3) is too wide and that it is only contempts punishable as such under Oh. 10 of the Code (e. g., an offence punishable under Section 173 I. P. C.) that are excluded from the purview of the Act. We think there is considerable force in Dr. Sen Gupta's argument but it is not necessary to decide the point as many of the acts complained of are not covered by any section of the Code. The learned Advocate-General also maintains that before the opposite parties can be convicted of contempt it must be proved that the order appointing the receiver has been served upon them and he has referred us to Halsbury's Laws of England, Vol. 9, p. 311 Title 'Contempt of Court, Attachment and Committal' and to Rai Moolabai v. Chunilal Pitambar [1909] 33 Bom. 630. We agree with the petitioners however that the necessity for personal service of the order of the Court does not exist when the contempt complained of is obstruction of the Court's officers. Indeed were it otherwise the protection that the law affords to such officers would be quite inadequate since no party to a litigation can foretell the quarter from which obstruction may be expected so that he may anticipate it by service of the order of appointment. On the merits the Advocate-General has directed his arguments to show not so much that the opposite parties have not done what is attributed to them as that the receiver has never taken effective possession of the two groups of properties, since as against a stranger to the action who is in actual possession the appointment of a receiver is of no effect: Evelyn v. Lewis [1844] 3 Hare 472. It may be observed that even if we were disposed to accept this view of the facts the' Mahant at any rate would still have to justify actions that are prima facie breaches of the undertaking given in respect of Maiji Sharista.

9. We do not think it necessary to set out in detail the contents of the affidavits used in opposition. Provat Chandra Giri's affidavit is largely devoted to establishing his title to Jagannathpur. This is only indirectly in issue in these proceedings though it is to be remembered that both Jagannathpur and Maiji Sharista have been found by the District Judge to be debuttar properties. The other affidavits contain denials of the receiver's possession and of the acts of intimidation on which the petitioners rely. Counsel for the petitioners points out that there has been no application to cross examine the receiver's officers as to the receiver's possession and we have come to the conclusion that it has been satisfactorily shown that the receiver is in substantial possession both of Jagannathpur and of Maiji Sharista. There can be no question but that all the opposite parties were throughout fully cognizant of the receiver's possession. Their attempts therefore to interfere with the receiver's possession and to intercept the rents properly payable by the tenants to the receiver undoubtedly amount to contempt of Court: see Ames v. Trustees of Birkenhead Docks [1855] 20 Beav.332 P. Roy Chaudhuri v. Nolini Prokas Sen A.I.R. 1914 Cal. 550.

10. In the case of Satis Chandra Giri his contempt is aggravated by his undertaking concerning Maiji Sharista. We find Satis Chandra Giri and Probhat Chandra Giri guilty of the contempts alleged against them in the affidavits of Upendra Ghosh, Ashutosh Punja and Abhoy Charari Mukherji. We sentence Satis Giri to pay a fine of Rs. 1,000 and Probhat Chandra Giri to pay a fine of Rs. 500. We find Gobordhone Kamle guilty of the contempts alleged against him in the affidavits of Jatindra Nath Patra and. Surendra Nath Bhuiya. We consider however that he was acting throughout at the instigation of the other opposite parties and that he will be sufficiently punished if he is ordered to pay a fine of Rs. 100. The apology tendered by Narendra Samanta is accepted and he is discharged under the proviso to Section 3 of the Act. We must add that we think the opposite parties have been unnecessarily harassed and put to needless expense by the misconceived and abortive proceedings before the District; Judge and this Court. Were it not for this we should have given the petitioners the costs of the rule and the hearing before us. As it is there will be no order as to costs.

M.C. Chose, J.

11. I agree.


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