1. This Rule was issued calling upon the opposite parties to, show cause why they should not be committed to prison for contempt of Court. The facts are not in dispute and have to be taken as stated in the petition since the opposite parties have not denied them by any affidavit.
2. The petitioner is the tenant of a shop room in Lindsay Street, Calcutta. He had sublet two window spaces in this room to the opposite party No. 1. It is not clear whether any room space was included in the sub-tenancy but that does not affect the question to be decided. The petitioner had started ejectment proceedings against the opposite party No. 1 in the Court of Small Causes, Calcutta, in respect of the demised spaces. These proceedings had eventually been brought over to this Court in its revisional jurisdiction and finally terminated in favour of the petitioner by an order made by Roxburgh J. on April 10, 195.1. That order was in these terms:
'The bailiff of the Court to give possession of the property to the applicant on July 2, 1951.'
3. This order was duly put in execution by the petitioner and on July 2, 1951, the bailiff of the Court of Small Causes put the petitioner in possession of the demised spaces. It appears that police help had been taken by the bailiff as it was apprehended that there might be forcible resistance to the execution of the order. As-it turned out however, there was in fact no such resistance but soon after possession had been delivered to the petitioner and the bailiff and the police had left the place, the opposite party No. 2, who had all along been standing by, retook possession of the demised spaces by force from the petitioner. This is the act which is said to constitute the contempt.
4. To clear the grounds it may be stated at once that there is no allegation in the petition that the first opposite party had taken any part in the retaking of possession nor that the second opposite party was acting at the instance or on behalf of the first opposite party. Indeed, the petition does not state that the first opposite party did anything at all. In the absence of any allegation regarding the first opposite party there is clearly no case of contempt of Court against him. As we understood the learned Advocate for the petitioner he concedes this. The Rule against the opposite party No. 1 must, therefore, be discharged.
5. In this matter we are really concerned with the opposite party No. 2 only. The question is, was the forcible retaking of possession by him immediately after the bailiff had retired, a contempt of Court?
6. The rule clearly is that the wilful disobedience to an order of a Court requiring a person to do an act, other than the payment of money is a contempt: Halsbury's Laws of England (2nd Edn.), Vol. VII, p. 30, Article 42. But that rule does not, in our view, help the petitioner in the present case and this for two reasons. First, in order that the rule may apply there must be an order on a person to do an act and in this case there is no such order. All that the order of Roxburgh J. does is to direct the bailiff to deliver possession: it does not direct any other person to do any act. There is no question here therefore of any person disobeying an order, unless it is the bailiff. The case of 'IBERIAN TRUST LTD. v. FOUNDER'S TRUST & INVESTMENT CO. LTD.', (1932) 2 K B 87, may be usefully compared with the case in hand. That was also a case of contempt for not carrying out an order of the Court and it failed on the ground that there was no order on the defendant, the alleged contemnor. Lux-moore J. said (at p. 95):
'Now, turning back to Rowlatt J's order, what is it that the defendant company have been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything it says: 'that the plaintiffs to have a return of the said shares within fourteen days.' Am I to spell out of that an order on the defendant company to do something? I think not. If the Court is to punish any one for not carrying out its order the order must in unambiguous terms direct what is to be done.'
7. Secondly, the opposite party No. 2 being no party to the proceedings resulting in the order of Roxburgh J., that order could not have directed him to do anything. As Lord Eldon pointed out in 'IVESON v. HARRIS', (1802) 7 Ves 251, it was not competent to the Court 'to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause.' See also 'S.N. BANERJEE V. KUCHWAR LIME & STONE CO. LTD.', 43 Cal W N 197 (P. C). The order of Roxburgh J. not being therefore an order on the opposite party No. 2 there is no question of his disobeying that order or committing contempt by any disobedience thereof. It may be that if the opposite party No. 2 is a tenant of opposite party No. 1, as he claims to be, the order may have been binding on him in certain circumstances under Rule 35 of Order 21 of the Code of Civil Procedure, as was held in 'YUSUF v. JYOTISH CHANDRA' 59 Cal 739. But this would not make the order an order on the opposite party No. 2 for the order is binding on him only in the sense that it may have been executed by removing him from possession notwithstanding that he was no party to the proceeding in which the order was made. This therefore is not a case in which the opposite party No. 2 can be said to have committed contempt by disobeying an order of Court.
8. Can it then be said that the opposite party No. 2 is guilty of contempt by obstructing the course of justice and setting the process of the Court at naught? If he did so he would undoubtedly be guilty of contempt and this although he was no party to any proceeding in Court which was obstructed thereby; 'COOPER v. ASPREY', (1863) 3 B & S 932. It is contended on his behalf that he cannot be said to have done that in this case as the order was duly executed and there was no interference with the process of the Court. Possession was retaken from the petitioner after it had been delivered to him by the bailiff, after, as it was put, the force of the order had expired and therefore there was in this case in any event, no obstruction to the course of justice whatever other offence or civil wrong the retaking might have amounted to. On the facts of the present case it does not seem to us that the argument is tenable. What happened was that the opposite party No. 2 was present all along when the bailiff was delivering possession to the petitioner and he offered no resistance then nor attempt to retake possession till the bailiff had turned his back. It is quite obvious that the opposite party No. 2 only lay by so as to mislead the bailiff ints believing that there was no opposition to possession being delivered to the petitioner. The retaking of possession followed so soon after the delivery of possession as in reality and substance to amount to being part of the delivery of possession and therefore to obstructing the bailiff in carrying out the order. A person who retakes possession of land from a party who had recently obtained possession of it by a writ has been held to be guilty of con-tempt-Oswald on Contempt (3rd Edn.), p. 88 relying on In Re: HIGG'S Mortgage, 'GODDARD v. HIGG', (1894) W N 73. Again, in 'LACON v. DE GROAT', (1894) 10 T L R 24, it appears that the Sheriff had been able after much trouble, to execute a writ and deliver possession of certain premises to the party entitled to possession under an order of Court, but immediately after the Sheriff had gone away, the defendant and his man retook possession with the help of a riotous mob from the party to whom possession had been delivered by the Sheriff and they were held liable in contempt. Learned Counsel for the contemnors had argued that 'the writ in fact had been executed, and so there was no ground for a proceeding for contempt.' Baron Pollock said, in his judgment in this case.
'In a case like this, where judgment had been given that the plaintiff shall recover possession of premises and a writ has been issued to the Sheriff to deliver possession: If the officer has been apparently put in possession and the defendant chooses at some later time to change his mind and come back to the premises arid by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him, does not fully and honestly give up possession, but only colourably does so, the Judge applied to may and ought to find that the process of the Court had not been obeyed, and that there had been a contempt of Court. In the present case the practical test was this; if the Sheriff's officer had known what was intended he certainly would not have left the premises.'
We are clearly of the opinion that in this case also, if the bailiff had suspected the intention of the opposite party No. 2 he would not have left when he actually did. The act of this opposite party therefore was as if he had in reality ousted the bailiff, from possession. Prima facie, it would therefore appear that he was guilty of contempt. It makes no difference that he was no party to the action for a stranger has no more right than a party, wilfully and wrongfully to oust the Court's officer from possession or prevent him from carrying out the Court's order.
9. But there is another circumstance to be noticed. A person bona fide claiming to be rightfully in possession of property is entitled in law, to resist a Court officer from ousting him from such possession in execution of an order of Court passed in a proceeding to which he was not a party. Indeed, in such a case, the Court's officer has no right to oust him until his claim is adjudicated upon in appropriate proceedings. It would be against all principles of justice that a person honestly claiming a right should be under a duty to abandon that right and to obey an order passed without him being heard. The provisions of Order 21, Rule 97 and the following rules of the Code of Civil Procedure would seem to contemplate the right of such a person to resist possession being taken from him. The' case of 'ABDUL SATTAR v. MOTI BIBI', 34 Cal W N 583, recognises such right. There the petitioners had obtained a decree in ejectment against the complainant's husband. They went to the premises accompanied by the Court officer to execute the decree & were obstructed by the complainant on the ground that the premises belonged to her and she was no party to the decree. The petitioners thereupon roughly handled her and were convicted on her complaint, under Sections 448 and 323 of the Indian Penal Code. On revision, Cuming J. upheld the conviction under Section 323 and said:
'The complainant was not a party to the decree and therefore the two petitioners were not entitled to remove her. The proper procedure so far as she was concerned no doubt would have been by way of an application under Order 21, rule 98. Therefore, by forcibly removing the complainant from the house they were clearly guilty of assault.'
Reference may also be made to 'KIRONSASHI v. THE OFFICIAL ASSIGNEE', 60 Cal 8 at p. 14 in this connection. Again dealing with the case of a receiver Vice-chancellor Wigram said, in 'EVELYN v. LEWIS', (1844) 3 Hare 472 at p. 475:
'If a party claiming a right in the same subject-matter was in possession of the rights- which he claimed at the time the receiver was appointed the appointment of the receiver left him in such possession.'
10. Now, in the present case the petition states that the opposite party No. 2 claims the right to the possession of the demised spaces as sub-lessee under opposite party No. 1. What then is the effect of such a claim? Under Order 21, Rule 35 of the Code of Civil Procedure, as has already been stated, an order for ejectment against a tenant can be normally executed against a sub-tenant. This is on the principle that the order proceeds on the basis that the tenant's tenancy has been terminated and this termination also normally brings to an en the sub-tenant's tenancy. Normally therefore a sub-tenant cannot lawfully resist the Court officer in executing a decree in ejectment against his landlord. Such termination of the subtenant's tenancy, however, is not necessarily always the case. Take for instance a case in which the tenant's tenancy has been terminated by surrender and founding on such termination, the order for ejectment had been made. In such a case the sub-tenant automatically becomes the direct tenant of the landlord: See Section 115 of the Transfer of Property Act. Here the sublessee has an independent right to possession, a right independent of the tenant's right & he is not bound by the order for ejectment against the tenant. He can, therefore, rightfully resist the execution of that order. Again, under the recent rent statutes, a sub-tenant becomes in certain circumstances a direct tenant under the landlord, on an order for ejectment being passed against the tenant. See for example Section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Such a sub-tenant is not bound by the order and can lawfully resist its execution against him. See 'Sailandra Nath v. Bijan Lal, 49 Cal W N 133 and 'PREMIER NATIONAL BANK LTD. v. BHAIRODAN', 53 Cal W N 555.
11. Now, there is nothing in the petition in the present case to show, whether the opposite party No. 2 is a sub-tenant whose tenancy did not survive in spite of the termination of the tenancy of the opposite party No. 1, for any of the reasons mentioned above. He may be or he may not. If he is, then he was entitled to resist the bailiff and therefore did not commit any contempt by retaking possession. Now it is for the petitioner to justify clearly the order for committal for contempt. Such an order can never be made in a case of doubt, for committal is a serious matter and 'involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other case be permissible, or even tolerated. Oswald on Contempt (3rd Edn.), p. 17. The reference here is to the summary procedure provided for contempt. In QUEEN v. GRAY', (1900) 2 QB 36 at p. 41, it was said that the power to commit for contempt was 'a jurisdiction, however, to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt.' These are principles of fairness & sound justice & must be followed. In the present case in the petition there is nothing to show that the opposite party No. 2 had no right to be in possession of the demised spaces as a sub-tenant nor that his claim to be in possession was mala fide and a mere pretence, it is impossible, therefore, to hold him to be clearly guilty of contempt of Court. The conclusion thus reached is that the application must fail. The rule is, therefore, discharged.
Das Gupta, J.
12. I agree.