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Bimalapati Banerjee Vs. Sailendra Nath Ganguly and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Contempt of Court
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 96 of 1955
Judge
Reported inAIR1956Cal249,1956CriLJ734,60CWN758
ActsContempt of Courts Act, 1952 - Section 3; ;Constitution of India - Article 215; ;Indian Penal Code (IPC), 1860 - Section 166
AppellantBimalapati Banerjee
RespondentSailendra Nath Ganguly and anr.
Appellant AdvocateLala Hemanta Kumar and ;Ganganarayan Chanda, Advs.;Nirmal Chandra Chakravarty, Adv.
Respondent AdvocateManindranath Ghose, ;Anil Kumar Sett (for No. 2) and ;Charu Chandra Ganguly (for No. 3), Advs.
Cases ReferredRex v. Almon
Excerpt:
- .....p. c. on the same day the defendant-petitioner filed an application for restraining the plaintiff-decree-holder from executing the decree and also for an ad interim order pending the hearing of the rule. a rule was issued to show cause why further proceedings in execution should not be stayed. an ad interim order was passed on the following terms : 'ad interim injunction is granted till 25-4-1955 for the present and will continue thereafter till the disposal of this rule if rs. 250/- is deposited as directed. the court below will intimate to this court as soon as the money is deposited and retain the same pending further orders of this court. this rule is made returnable on 2-5-1955'.2. in pursuance of the order passed by this court a letter dated march 16, 1955 was issuedcommunicating.....
Judgment:

B.P. Mookerjee, J.

1. Joggeswar Banerjee, one of the opposite parties, had filed a suit in the Presidency Court, of Small Causes praying 'inter alia' that Bimalapati, petitioner in these proceedings, be ejected from premises No. 16, Blacquire Sq., Calcutta. The suit was dismissed by the trial Judge. On appeal a decree in ejectment was passed. The defendantpetitioner Bimalapati filed a Second Appeal (S. A. 513 of 1955) against the said decree.

This appeal was admitted on March 11, 1955 after a preliminary hearing under Order 41, Rule 11, Civil P. C. On the same day the defendant-petitioner filed an application for restraining the plaintiff-decree-holder from executing the decree and also for an ad interim order pending the hearing of the Rule. A Rule was issued to show cause why further proceedings in execution should not be stayed. An ad interim order was passed on the following terms :

'Ad interim injunction is granted till 25-4-1955 for the present and will continue thereafter till the disposal of this rule if Rs. 250/- is deposited as directed. The Court below will intimate to this Court as soon as the money is deposited and retain the same pending further orders of this Court. This rule is made returnable on 2-5-1955'.

2. In pursuance of the order passed by this Court a letter dated March 16, 1955 was issuedcommunicating the terms of the order. This letter communicating the Court's order was received in the English Department of the Presidency Small Cause Court on March 18. The Registrar of the Court of Small Causes sent the letter from this Court to the passing clerk of the 4th Bench of that Court in which the execution case was pending.

3. It appears from the records that a tabular statement for levying execution bearing the date March 21, 1955 was filed by the decree-holder on March 24th; this was subsequent to the receipt of the said order from the High Court. As required under the rules a draft Writ for delivery of pos-session was filed by the decree-holder on March 28.

On April 5, the Writ for delivery of possession was issued under the signature of the Superintendent to the Bailiff Sailendra Nath Ganguly, one of the Opposite Parties for delivery of possession as under the decree. The returnable date was fixed for 30-4-1955.

4. Immediately after the receipt of the Writ by the Bailiff the latter went the next day to the premises at about 1 p.m. The plaintiff was present personally, as to how many other persons were also present is a matter of dispute as alsothe circumstances under which possession was delivered by the Bailiff to the plaintiff-decree-hold-er.

According to the version of the plaintiff andof the Bailiff the son of the judgment-debtor who was present delivered peaceful possession and the latter along with the members of the family cameout of the portion of the premises occupied by them. On the other hand, the judgment-debtor maintains that force was used and in spite of the plaintiff - and the Bailiff being intimated about the interim order staying execution proceedings as passed by the High Court, the Bailiff used force and turned out the judgment-debtor's family throwing out and damaging his moveables.

5. The defendant petitioner has also alleged that the fact that a stay order had been issued by the High Court was known both to the plaintiff as also to the Bailiff from before and that there was a conspiracy between some of the officers of the Court of Small Causes including the Bailiff opposite party and the plaintiff who are responsible for the illegal and unauthorised acts done in utter violation and defiance of the order passed by this Court.

6. The petitioner had in the original petition made the Registrar of the Court of Small Causes a party to the illegal and improper acts asalleged. When the application was first moved before us we called for reports from the Chief Judge of the Presidency Court of Small Causes and from the Registrar of this Court for eliciting the point of time when the order passed by us on 11-3-1955 had been issued, reached the Small Causes Court and the circumstances under which the Writ for delivery of possession was issued by the executing Court after the said stay order had been forwarded by this Court

7. We were not satisfied that any prima facie case had been made against the Registrar of the Court of Small Causes. On the materials then before us we issued a Rule on 18-5-1955 on the Bailiff, Sailendra Nath Ganguly and the decree-holder Joggeswar Banerjee to show cause why they should not be 'held liable for Contempt of Court and appropriate action taken against them.

8. We have now heard the learned Advocates for the opposite parties and the petitioner as also the Senior Government Pleader who has appeared for the State.

9. Affidavits have been filed by the petitioner and the opposite parties, some sworn by the parties themselves and the rest affirmed by persons who are stated to have been present at the time of the alleged occurrence.

10. In showing cause the decree-holder opposite party has denied that he had any previous knowledge of the ex parte stay order which had been issued by this Court or that they had been party to any conspiracy as alleged.

11. The allegations on which the case for contempt is founded may be broadly divided under two heads. In the first place it is alleged by the petitioner that the parties concerned were cognisant of the facts that an interim injunction had been issued by this Court. In defiance of such order the Bailiff and the plaintiff had intentionally violated the injunction issued by this Court.

12. The second part of the allegations turned on the incidents which had happened when the Bailiff had gone to the premises in question and delivered possession to the plaintiff opposite party.

13. According to the defendant petitioner he had immediately after the issue of the interim order by this Court spoken to the plaintiff decree-holder, the latter living in another part of the same premises with the judgment-debtor. It is difficult to accept this part of the case as made by the defendant. The plaintiff was not admittedly on speaking terms with the defendant.

It is improbable that the defendant would under such circumstances speak to the plaintiff. It was suggested that the plaintiff speaking aloud from his part of the quarters the defendant heard from another portion of the same premises the purport of the Court's interim orders. It is not likely that the plaintiff had any information about the interim injunction at this stage.

14. Even though it be not accepted that the plaintiff had information on the day the Rule was issued it is unlikely that the plaintiff had information as alleged. The conduct of the parties and the circumstantial evidence belie that the plaintiff had information from the day the interim order was passed.

15. The injunction was issued 'by this Court on March 11. The information reached the Court of Small Causes on March 18th. That intimation passed through the normal channel to the clerk whose duty it was to make the relevant entry 'in the after-judgment record'.

The circumstances under which the necessary entry had not been made by this clerk have beenthe subject matter of proceedings drawn up by the Chief Judge, Court of Small. Causes against the said clerk; for in any view he was grossly negligent. The said clerk is not one of the opposite parties in the proceedings now before us. The materials in this record are also not sufficient to, pronounce any opinion as to the complicity, if any, of the said passing clerk in the matter of the disobedience of the injunction order passed by this Court.

16. The learned Chief Judge of the Court of Small Causes has reported that proceedings have been drawn up against the passing clerk for his failure to make the necessary note which has given rise to the various complications and is the subject matter of the present proceedings.

17. The tabular statement for levying execution was filed by the decree-holder on March 21, 10 days after the issue of the Rule and 3 days after its receipt by the executing Court. Other steps which are required to be taken by the decree-holder were taken on the 24th and 28th March. The Writ to the Bailiff was issued on the 5th of, April.

18. It is most unlikely that a decree-holder, already cognisant of the interim order issued by this Court, will take steps for obtaining possession in violation of the order of the High Court, know-ing full well that even if it be possible to obtain possession in ignorance of or in violation, of the High Court order the decree-holder would not be able to retain possession after the mistake or the improper act comes to light.

The steps which were taken by the decree-holder were not as prompt and expeditious as would have been if the decree-holder had knowledge of the interim order and was trying to humiliate the defendant; there are no materials on which such a case can be made. The conduct does not fit in with the previous knowledge of the plaintiff as alleged.

19. As regards the allegations of conspiracy or the complicity of the passing clerk no sufficient materials have been placed before us to come to definite findings. We do not express any opinion on the conduct of either the passing clerk or any other officer or officers of the court as all the relevant materials are not before us.

20. All we can and need hold is that the petitioner has failed to prove in the present proceedings and for the purpose of this rule, that the decree-holder was aware of the issue of the interim injunction or of having got the Writ for delivery of possession after entering into a conspiracy with known or unknown persons.

21. So far as this part of the case is concerned the Bailiff opposite party does not come into the picture.

22. On the conclusion reached as above no offence has been brought home so far as either of the two opposite parties are concerned at this stage.

23. We next proceed to consider what had happened on 6-4-1955 and whether either the decree-holder or the Bailiff opposite party has been proved to have committed an offence for which they may be proceeded against for contempt of Court.

24. The petitioner's case is that on 6-4-1955 when he was away from his residence. Sailendra Nath Banerjee, the Bailiff came to his house in question at about 1 p.m. Though there was no order to take police help the said Bailiff took with him two other persons and two public women, who sell betel leaf on the street near the Court of Small Causes, the former representing themselves as officers of Court while the latter as women constables.

The defendant-petitioner's son and the female members of his family told the Bailiff that an order staying execution had been made by the High Court and the Writ for delivery of posse-sion must have been given through inadvertence or mistake. The Bailiff was requested to make enquiries before executing the Writ.

The Bailiff thereupon is said to have used defamatory language against the Court some at which are mentioned in paragraph 14 of the peti-tion. The two women, who accompanied the Bailiff and were neither Constables nor Officers of the Court, dragged out the female inmates of the house under the orders of the said Bailiff.

25. The said Bailiff with the assistance of the two other persons, who accompanied him brought out the movables in the house and damaged or destroyed them all. These incidents' are alleged to have taken place in the presence of a number . of respectable gentlemen of the locality whose names are given in paragraph 13 of the petition.

Some of these witnesses have filed in this Court affidavits in support of the petitioner's case. The Bailiff opposite party is also alleged to have wrongfully restrained the petitioner's son from sending a message to the petitioner. It was not till after the Bailiff and the decree-holder had left the place that the petitioner could be intimated of the incidents.

The petitioner thereupon came to the Superintendent of the Court of Small Causes. He on hearing the petitioner searched for the papers and obtained the copy of the said order from the records. The clerk concerned expressed his regret stating that this was due to a 'bona fide' mistake on his part. The Superintendent made arrangements for re-delivery of possession of the premises to the petitioner, to which the decree-holder agreed. Possession was delivered to the defendant-petitioner the same evening at 7 p.m.

26. From the allegations made in the peti-tion it is manifest that the decree-holder's complicity in the affairs on the 6th of April is based upon the so called knowledge of the said decree-holder about the interim order issued by the Court. We have already referred to grounds for not accepting this part of the petitioner's case and the offence so far as the incidents on the 6th of April are concerned lose weight as regards the decree-holder. The decree-holder is not alleged to have taken part in any of the alleged acts by or at the instance of the Bailiff opposite party.

Paragraph 22 is the only paragraph in the petition on which the decree-holder is attempted to be implicated in this matter. The statements contained in paragraph 22 are not supported by any proper affidavit. They are stated to be merely submissions. A portion of this paragraph is argumentative in nature. The allegations are not proved by the affidavit filed. This rule must accordingly be discharged as against the decree-holder Joggeswar Banerjee.

27. We now take up the allegations made as against the bailiff, Sailendra Nath Ganguly. In the affidavit filed by him he has totally denied the allegations against him. The denial covers each one of the allegations made. The Bailiff states that when he reached the premises in question he found the plaintiff to be present. The latter pointed out the portion of the premises in the occupation of the defendant judgment-debtor.

The bailiff denies that the petitioner's son had intimated the fact' that an injunction had been issued by the High Court or that he was requested to make enquiries about the same for verification. The defendant's son merely asked for a day's time on the ground that the judgment.debtor was then away in his office. The Bailiff expressed his inability to allow such time and .requested him to vacate the premises. The bailiff continues his version in, the following terms:

'Whereupon the defendant's son, wife and other children peacefully vacated the said bed room and covered verandah with some of the defendant's articles from the said bed room. The rest of the articles from the said bed room, covered- verandah, kitchen and store room were removed by the plaintiff's men peacefully'.

28. The bailiff further denied that he had either (sic) any of the persons mentioned in paragraph 13 of the petition and that six persons oi' the locality were present as alleged. He also denied having uttered the expressions quoted in Clauses (a) to (k) of paragraph 8 or having thrown away the movables directing them to be damaged or destroyed.

In short his story is that the members of the defendant's family peacefully vacated the premises. The bailiff had not used any force for delivering possession and that there had been no altercation between the parties or any occasion for using the abusive language as imputed to him.

29. The bailiff continues to state that after such peaceful delivery of possession he returned to the Court and was about to deliver back the Writ is having been executed, the passin'g clerk informed him about the interim order passed by the High Court and the mistake under which the writ had been issued previously. The defendant was present in Court.

The defendant himself with his lawyer and the Superintendent of the office of the Court accompanied the bailiff to the premises in question in company with the plaintiff's lawyer. Possession was restored to the defendant with the consent of the plaintiff. He denied the allegations of conspiracy or having done any act or uttered any expression which called for action in the present proceedings for contempt.

30. The affidavits which have been filed on behalf of the petitioner in support of the allegations made against the bailiff are sworn to by the defendant's son Sibapati; and from amongst the six persons mentioned as witnesses in the original petition, affidavits by three of them Alak K. Singha, Mukti Bhattacharjya and Dulal Ch. Das. An affidavit has also been filed by one Biswanath Mitra who alleges to have been present but whose name was not specifically stated in the original petition.

31. Affidavits referred to above are in support of the allegations made that the members of the defendant's family were not willing to give up possession, had referred the bailiff to an order toy the High Court and that the defendant's family were forcibly ejected from the rooms, the articles were thrown out and damaged.

They further support the petitioner's story that the bailiff had taken with him two persons es his assistants and two women. They also support the defendant's case about the contemptuous language referred to in paragraph 14 of the original petition.

32. Attempts were made to introduce references to interpolations by the members of the State Legislative Assembly and to certain other alleged, incidents in respect of which allegations were made against this bailiff, Sailendra Nath. We do not think that such references are either apposite or relevant for deciding the question now before us.

The only question for consideration is as to what had happened on 6-4-1955 at 16 BlacquireSq., what part had been taken by the bailiff opposite party and whether any of his acts are such as can be taken cognisance of as amounting to acts in contempt of court.

33. Which of the two divergent stories should be accepted? The bailiff's story that there had been no incident whatsoever but after peaceful delivery of possession with the willing co-operation of the members of the family of the defendant cannot be accepted. The statement made by the petitioner supported by a number of neighbours who are independent and disinterested persons must be accepted.

The bailiff is making a definitely false statement in the affidavit sworn to by him. An argument on behalf of the bailiff was that on the materials the defendant's story should be disbelieved. No attempt was made to explain away the expressions alleged to have been used as stated in the original petition. The expressions used referring to the High Court and the Chief Justice and to the Chief Judge, Court of Small Causes are definitely contemptuous ones so far as administration of justice is concerned and particularly this Court.

34. It was argued on behalf of the petitioner that the bailiff had acted in contempt in

(1) not postponing delivery of possession even when he was told that the High Court had. issued an interim injunction staying delivery of possession;

(2) by using contemptuous language against the courts and this Court in particular;

(3) by his illegal acts which were abuse of the process of the court which brought down the good name of administration of justice in the State.

35. As regards the first count we have to consider whether by the intimation given to the bailiff by the members of the family of the de-fendant that an order restraining the plaintiff from proceeding with the execution had been issued by the High Court, what would be duty of bailiff in such circumstances. The position is not free from difficulty.

On the one hand, when an officer of the Court like the sheriff or the bailiff proceeds to give effect to an order by the court is it open to him to restrain from giving effect to the same only on a statement being made by the person aggrieved that the operation of the order had been stayed? It is stated on behalf of the defendant that the incident took place within a very short distance of the court and during the court hours; the bailiff could and ought to have returned to the court to ascertain the correct position.

This, however, is not the only and the proper test. The distance from the court or the feasibility of obtaining confirmation from the court cannot be the criterion from determining the conduct of the bailiff or the sheriff.

36. Such an incident may happen in the Mofussil far away from the court. Is the bailiff to return the Writ to the court only on a verbal statement by somebody on behalf of the aggrieved party that the writ was not to be enforced?

37. There are specific provisions in the rules of the Supreme Court of England (Order 52, Rule 11, R. S. C. R.). When a Sheriff fails to return the writ of ejectment or bring in the body pursuant to notice he is himself liable to a committal.

38. The position may be different in different cases, but we are not expressing any final opinion on this point at this stage, that when a Sheriff or the bailiff is shown an authenticated copy, of an order suspending or proceeding with a writ it may be desirable for the Sheriff to comeback. As there was no such occasion in the present case we need not dilate upon it any further.

39. We are not expressing any final opinion as to the duty and conduct of the bailiff when confronted with the verbal statement of the affected party to refrain from executing a writ.

40. If the bailiff, however, finds that there tis opposition and resistance as is alleged on behalf of the defendant in the present case, if he considered that the opposition was such that pos-session could not be delivered without applying force, the ruies of the court provide that the bai-liff has to return to the court for being armed with necessary powers and help.

It is for this reason that the bailiff has come out with the story which we have not accepted that peaceful possession had been delivered by him. The mistake on the part of the bailiff in using force, however, without being properly armed by an order of the court does not make his offence a culpable one for contempt of Court. Such an offence comes under a different category witn which we are not concerned in the present proceedings.

41. We next consider whether the Bailiff had by his conduct and/or use of language been in contempt against the High Court or Courts in general. It is not possible to sub-divide the entire episode into a number of different incidents in order to determine whether each or some of his acts or the uttering the sentences did or did not constitute contempt of Court.

42. If the Bailiff had even when informed of ]the interim order passed by this Court merely expressed in a normal way that he was bound to carry out the directions contained in the Writ is-sued to him, no serious objection could have been taken to the same.

43. That the Bailiff himself is now alive to the seriousness of the situation is clear from the attempt made by him in the Affidavit sworn to in explanation of the rule issued by this court --that there had been no incident whatsoever --no occasion for using force or to utter the words alleged or the general behaviour and conduct alleged.

44. On the findings reached by us there is no room for any doubt that the Bailiff was out to show his supreme authority which even when exercised illegally and improperly could not be set right by the competent court. 'He by his conduct and by the language used indicated his in-difference and contempt of the judiciary and of this court in particular.

45. It would be an act within bounds for the bailiff to have given expression in a formal manner without any warmth or the use of undignified and insolent language when he was bound to carry out the orders as contained in the writ. The entire episode and the atmosphere created have to be regarded as one incident and cannot be split up into component parts so that each remark may be explained.

46. Oswald has observed

'Contempt of court.....is so manifold inits aspects that it is difficult to lay down any exact definition of the offence. It is defined or described to be a disobedience of the court, an opposing or a despising, the authority, justice or dignity thereof. It commonly consists in a party's doing otherwise than he is enjoined to do, or ir doing what he is commanded or required by the process, order or decree of the court.

47. Lord Harwicke L. C. said

'There are 3 different sorts of contempt. On kind of contempt is scandalising the court itself There may be likewise a contempt of this Courtin abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard' To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants or their witnesses during the litigation. 'Publishing improper attacks on Judges of superior courts and their jurors reflecting on their action in the administration of justce, attempting to intimidate or improperly influence judges, or speaking contemptuous words to or of judges of inferior courts when in the actual execution of their duty amounts to contempt of court'

48. The observations made by Wilmot C. J. in 'Rex v. Almon', (1765) Wilm 243 (A) are still re- ferred to as pregnant words attracted without any reference to any country or nationality.

'Attacks upon Judges excite in the minds of the people a general dissatisfaction of judicial determination and whenever men's allegiance to the laws was so fundamentally shaken, it is the most vital and dangerous obstruction of justice calling out for a more immediate redress than only obstruction; not for the sake of the judges as private individuals but because they are the channels by which the King's justice is conveyed to the people'

49. The prestige and the dignity of the Courts of law must be preserved. The confidence of the litigants should not be shaken by the use of contemptuous and scandalous expressions towards court or Judges attempting to belittle them. Stream of justice is not to be polluted by shaking the confidence in the administration of justice by conduct exhibited and words used by the bailiff in question.

50. The only way this can be dealt with Is by finding him guilty of the offence and commit him to prison for two weeks and inflict a fine of Rs. 500/-. In default, he will be detained in prison for a further period of two weeks. The amount of fine may be paid either to the Superintendent of Jail where he will be kept in detention or to the Sheriff. The amount when paid is to be credited under the appropriate head in the account of State.

Sarkar, J.

51. I agree.


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