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Vernon Milward Bason Vs. Anne Helen Skone and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal945,94Ind.Cas.532
AppellantVernon Milward Bason
RespondentAnne Helen Skone and anr.
Cases ReferredCunha v. The Alliance Bank of Simla
Excerpt:
- .....not be committed to jail or otherwise dealt with for contempt of court for having insulted one ashit kumar pal, a clerk in the service of messrs. orr dignam & co., the attorney's for the defendant anne helen skone, in manner stated in the latter's petition.2. the facts, shortly stated, are as follows: the plaintiff bason instituted this suit against the defendant a. ii. skone and another for damages for breach of a certain agreement. the suit was dismissed with costs on scale no. 2 on the 96h february 1925. the defendant's bill of costs was taxed and an allocatur was issued on the 2nd may, 1925, for a sum of rs. 5,827-4-0. it was served on bason's attorneys on the 5th may 1925. on she 9th may, 1925, the defendant a. h. skone took out a notice under order 21, rule 37 (1) of the civil.....
Judgment:

C.C. Ghose, J.

1. This is a rule sailing upon the plaintiff Vernon Milward Bason to show cause why he should not be committed to jail or otherwise dealt with for contempt of Court for having insulted one Ashit Kumar Pal, a clerk In the service of Messrs. Orr Dignam & Co., the attorney's for the defendant Anne Helen Skone, in manner stated in the latter's petition.

2. The facts, shortly stated, are as follows: The plaintiff Bason instituted this suit against the defendant A. II. Skone and another for damages for breach of a certain agreement. The suit was dismissed with costs on scale No. 2 on the 96h February 1925. The defendant's bill of costs was taxed and an allocatur was issued on the 2nd May, 1925, for a sum of Rs. 5,827-4-0. It was served on Bason's attorneys on the 5th May 1925. On she 9th May, 1925, the defendant A. H. Skone took out a notice under Order 21, Rule 37 (1) of the Civil Procedure Code signed by the Master of this Court requiring the plaintiff to appear in person before this Court on the 22nd May 1925, at 11 o'clock in the forenoon, to show cause why he should not be committed to jail in execution of the decree for costs passed against him on the 9th February 1925. Ashit Kumar Pal, who, as mentioned above, is a clerk in the service of Messrs. Orr Dignam & Co., was entrusted by the latter with the duty of effecting service of the said notice on Bason. Bason bad been a client of Messrs. Orr Dignam & Co., and was known to Ashit Kumar Pal. It appears that on the 9th May, at about 2-30 p.m., Ashit Kumar Pal called at premises No. 6-1, Moira Street, where Bason resides, for the purpose of serving the said notice upon him. Bason occupies a flat on the first floor of he said premises. There were servants downstairs, but they were not Bason's servants; and Ashist Kumar Pal went up to the first floor. He says that when be got to the first floor, he did not find the front door of the sitting room of the plaintiff to be closed; the door was open, and a, purdah was hanging at the entrance to the room. He found that Bason was sitting in a chair and reading a newspaper. Ashit asked him If ha might enter and thereafter he entered the sitting room with Bason's permission. He informed Bason of the purpose for which he had called and made over to him both the original notice under Order 21, Rule 37 (1) of the Civil Procedure Code and a copy. (It may be noted in passing that Ashit in his affidavit states that he made over the original notice only to Bason ) Bason read the notice and flung the papers at the floor. Ashit thereupon picked up the papers from the floor and showed to Bason the original notice bearing the seal of this Court and Informed him that if he refused to accept service he would affix a copy on the outer door. Bason thereupon became very angry and called Ashit Kumar Pal a 'damned swine' and caught him by the throat and dragged him and pushed him towards the door, so that he nearly fell down. Ashit states that thereafter he affixed a copy of the said notice on the front door of the room. He came back to the office of his employers and reported the matter to the Head Court Clerk of Messrs. Orr Dignam & Co., Babu Kali Prosanno Chakravarti. The later, bearing what had happened, took Ashit Kumar Pal to Mr. D. C. Banerjee, a member of the firm of Messrs. Orr, Dignam & Co., who was in charge of the case, and reported the incident to him. Mr. Banerjee directed that Ashit should make an affidavit setting out?what had happened. It was a Saturday and the affidavits was not made till the Monday following.

3. Bason denies the allegations made by Ashit Kumar Pal and his account of what happened on Saturday, the 9th May, is as follows: 'That on Saturday, the 9th instant, while I was resting in my sitting room (which is on the first floor of the premises No. 6-1, Moira Street) I saw a person on the other side of the purdah at the entrance door of my half flat. Not having my glasses on, I could not distinguish the person and called out: 'Who are you and what do you want?' I then got up to go to the door, but the man whom I had seen walked quickly into my room and informed me that he had a notice of the High Court to serve on me. I enquired of him if ha was a Court official. He replied that he was a clerk of Messrs. Orr Dignam & Co. and that it was not necessary for a Court official to serve me with the said notice. I read the said notice, handed it back to the said clerk and bold him that it was quite unnecessary to take out the said notice, as I had been all along willing to pay the taxed costs and that I was unable to understand why such a notice had been taken out I requested the said clerk to take it to my attorneys, Messrs. B.N. Basu & Co., who would accept service on my behalf and who were in communication with Messrs. Orr Dignam & Co. then on the subject and bad Informed them that I would pay the taxed costs. I assured him that there would be no trouble about the payment of the costs. The clerk said: 'Yes, Sir, I will go to Messrs. B.N. Basu & Co,, now.' There the matter ended.' Bason has produced an affidavit in support of his version by his khitmatgar, Shaik Korban. There are affidavits by Mr. Banerjee and Kali Prosanna Chakravarti stating that Ashit Kumar Pal, on his return from No. 6-1, Moira Street, reported to them that he had been abused and assaulted by Bason when he went to serve the said notice.

4. There being on the affidavits a direct conflict of testimony, I directed that the deponents should be cross-examined before me and accordingly this was done, and I have had an opportunity of seeing the deponents in the witness-box and of listening to their respective versions of what happened on the afternoon of the 9th May last. Mr. S.K. Chakravarti, who appeared in support of the Rule, at first expressed his unwillingness to cross-examine Bason, as the latter was in the position of an accused; but Mr. Page, who appeared for Bason, waived all question of privilege and thereupon Bason was cross-examined by Mr. Chakravarti. Bason, in his evidence, stated that the conversation between him and the clerk, Ashit Kumar Pal, was in 'very nice and amicable language throughout,' and that the last conversation was on the landing outside the door, and was quite friendly. Mr. Page has argued that having regard to the denial of Bason no order against him could or should be made: and secondly, that, assuming for the sake of argument that the allegations made by Ashit Kumar Pal are true, Bason has not committed contempt of] Court.

5. I desire to say at once that I accept unreservedly as true the evidence of Ashit Kumar Pal. He was in the witness box for some length of time and I am bound to say that he struck me as a witness of complete honesty and truth. A great deal of criticism has been levelled on slender and minute points in his evidence; but I have heard nothing to induce me to doubt the correctness of his evidence. It follows therefore that I disbelieve the evidence of Bason and of his khitmatgar, and I can conceive of no reason whatsoever why this inoffensive clerk, Ashit Kumar Pal, should have stated a false case against Bason as is alleged by the latter's counsel. It may be sometimes difficult to choose between witnesses where there is oath against oath; but in my judgment, having seen the witness in the box, it is not difficult to make out which side has told the truth.

6. The question then arises whether what happened on the 9th May constitutes contempt of Court on the part of Bason, The jurisdiction to punish for contempt of Court is inherent in this Court as a Court of Record, and without it its constitution as a Court of Record would be altogether useless. But the Court always exercises its power of punishing for contempt with great forbearance and acts with scrupulous care. It is ordinarily very chary in punishing people for contempt, and when the occasion arises, deals with such questions in the interest of the public, bearing in mind that the greater the power it possesses, the more caution is necessary to use in exercising it. In other words. the Court does not interfere where the offence is of a slight or trifling nature, and it only interferes where there is a real attempt to obstruct the course of justice. Now from very early times, it has been held to be contempt of Court to assault, ill treat or threaten a process-server engaged in his duty. The cases on this point are numerous and they will be found collected in Vol. 16 of the English & Empire Digest, pages 32-83; Oswald on Contempt, Third Edition, page 85, and vol. 7, Halsbury's Laws of England, page 288. The object in punishing for contempt where a process server in the execution of his duty has been abused and assaulted is not to vindicate the dignity of the Court but to prevent undue interference with the administration of justice. As has been said, the law has armed the Court with the power and Imposed on it the duty of preventing brevi manu and by summary proceedings any attempt to interfere with the administration of justice. It is on that ground and not on any exaggerated notion of the dignity of individuals that insults to witnesses, jurymen and process-servers are not allowed. The principle is that those who have duties to discharge pursuant to orders of Court are protected by the law and shielded on their way to the discharge of such duties, while discharging them, and on their return therefrom in order that such persons may safely have resort to Courts of justice and carry out their order. Bearing the above in mind, I have no doubt in my mind that Bason has been guilty of contempt of Court. With reference to Mr. Page's contention that inasmuch as the alleged circumstances of contempt have been positively denied by Bason, this Court could not or would not punish him for contempt. I desire to quote in this connection the words of Shadwell, V. C. in the case of Emery v. Bowen [1836] 5 L.J. 349. He said:- 'I must observe that I do not admit that this is the doctrine of the Court and in Peacchey v. Peacchey, I thought it right to commit) the party and there was an appeal from my order to the Lord Chancellor and ho affirmed the order and therefore I think that notwithstanding the positive denial of the party, it is the duty of the Court to look into all the affidavits and see on which side the truth lies.' I have therefore looked into the entire evidence and I have come to the conclusion indicated above. Mr. Page said if I believed the process-server then no one would be after in Calcutta. This, if I may so, say is an argument of despair, and I propose to take no notice of it except to remark that the statement of it carries its own appropriate answer. Mr. Page argued that) Bason might have been guilty of cowardly and despicable conduct, but he certainly did not prevent the serving clerk from affixing a copy of the notice on the door of the sitting room and therefore he has not been guilty of contempt of Court. Each cane must depend upon its own facts, and while I agree that the Court does not and will not ordinarily take notice of mere rude behaviour on the pare of the person against whom the allegation is made, the test is: Did the person in question abuse or maltreat the serving clerk while he was engaged in the execution of his duty? In my opinion there can be one answer to this question on the facts of this case and that in the affirmative. It is intolerable that process-servers m the employ of attorneys while engaged in the execution of their duties should be treated in the manner in which Asbit Kumar Pal was treated, and in toy opinion would be an abdication of the functions of this Court to refuse to take notice of a case like the present one. Ordinarily in oases like this an apology is tendered and the party found to be guilty of contempt is made to pay the costs. This was what happened in the case of D Cunha v. The Alliance Bank of Simla, Ltd., where a process, server named Bhusan Chunder Das, in the employ of Mr. P.N. Sen, an attorney of this Cours, who had gone to serve a rule on Mossrs. Bird & Co., was abused by one Kenaram Laha, a cashier in the employ of Messrs, Bird & Co. at Chartered Bank Buildings in Calcutta. The matter attracted the notice of Mr. Justice D. Chatterjee sitting as Vacation Judge, and ultimately, owing to the importance of the case, the then Chief Justice, Sir Lawrence Jenkins, formed a special Bench consisting of himself, Mr. Justice Camduff and Mr. Justice Chatterjee to bear the matter. The offending parties apologised and thereupon by their order dated the 3rd November, 1909, their Lordships held that it had been established that there had been contempt of Court and directed that the parties concerned should pay the costs. In this case, as far as I can fine, the attitude of Bason is one of insolent defiance and untruthfulness. in these circumstances I have very carefully considered what my judgment should be. I find as a fact on the entire evidence before me that Bason has been guilty of contempt of Court in having abused and assaulted Ashit Kumar Pal while he was engaged in the duty of serving the notice and I direct him to pay a fine of Rs. 200 and to pay the costs of this application as between attorney and client. In default of payment of fine, Bason will be committed to the custody of the Superintendent of the Presidency Jail for one week.


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