1. The opposite party to this Rule Nrishingha Prosad Roy stands charged with contempt of this Court.
2. He was the petitioner in Rule No. 1247 of 1951 which he took out against an order for possession made against him and which was disposed of on the 26th July, 1951. We found no reason to interfere with the order of the Small Cause Court Judge, but as an earnest prayer was made to us to allow the petitioner to remain on the premises till some further time in order that he might arrange for some suitable accommodation we acceded to his prayer and gave him time till the 31st of October 1951 on his giving an undertaking to us that he would vacate the premises with effect from the 1st of November. It will be seen that more than three months' time was given to the opposite party. He was present in Court and gave the undertaking not only personally but also through his advocate Mr. Shyarna Charan Mitter who was then representing him.
3. The present Rule which directs the opposite party to show cause why he should not be dealt with for contempt of this Court was issued by another Bench on a petition made by the landlord of the premises concerned, who was the opposite party in the previous Rule. The present Rule has been directed to be heard by us inasmuch as it was to this Bench that the undertaking was given.
4. It appears and the facts are undisputed that the opposite party did not vacate the premises on or before the 31st of October 1951, as he had undertaken in this Court to do, both personally and through his advocate. He not only did not vacate the premises but, on the 2nd November 1951 made an application to the Small Cause Court for an order that a notice might be issued on the landlord to show cause why execution of the decree passed in the suit for possession should not be stayed till the disposal of a suit which the opposite party intended to file in this Court. That application was obviously made under the provision of the Presidency Small Cause Courts Act which directs a stay to be granted in such cases. After having made that application, the opposite party continued to sit on the premises and did not vacate them till the 4th December, 1951 which was after the present Rule had been served up on him.
5. When the Rule came up for hearing yesterday, the opposite party was represented by his old Advocate, Mr. Shyama Charan Mitter. In answer to our question as to why the opposite party had not vacated the premises as undertaken by him and why he had made an application to the Small Cause Court for a stay of execution, Mr. Mitter informed us that after giving the undertaking the opposite party began to think of some means of getting out of it and consulted a pleader of the Small Cause Court who advised him to make the application, to which I have already referred. In paragraph 11 of the petition, upon which the present Rule as issued, it is stated that the application by the opposite party was made after the landlord had made a fresh application for Execution. Mr. Mitter however informed us that the application by the opposite party had been made even before the application for execution had been made by the landlord. It is perfectly clear that the makes the position of the opposite party much worse.
6. On the facts I have already stated, there can be no question that the opposite party has been guilty of contempt of this Court and the contempt has been of a flagrant character. Not only did he fail to carry out the undertaking which he had given to this Court, both personally and through his Advocate, but he also resorted to the means of trying to secure an order from a subordinate court which, he thought, would enable him to ignore the undertaking given to this Court with impunity. As I have already stated, only when the pressure of this Rule was brought to bear upon him, he did ultimately quit the premises.
7. Mr. Mitter, in the course of his argument yesterday, first suggested that at the relevant time the opposite party was ill and what had been done had been done by his son. Later on, however in the course of argument he changed the story and told us quite definitely that it was the father who had thought of consulting the lawyer and had obtained his advice. Towards the close of his argument, near about the rising, of the Court, Mr. Mitter reverted to his original story and wanted to throw the blame back on the son. He also filed a counter-affidavit, paragraph 3 of which seeks to make the son responsible. In the said paragraph, it is also stated that the pleader in the Small Causes Court was not aware of the undertaking that had been given to this Court which is completely contradictory to what Mr. Mitter himself told us yesterday.
8. In view of the facts which I have stated, one would expect that anybody who realised the gravity of the offence which had been committed would begin by making a full disclosure of the facts and tendering an unqualified apology to this Court. Nothing whatever about any apology, qualified or unqualified, was heard in the course of the argument yesterday. On the other hand, the whole matter was treated in a spirit which compelled us to observe to the learned Advocate that we could not congratulate either his client or him on the attitude they were adopting in the case.
9. This morning the opposite party has been renresented by another Advocate, Mr. Haridas Chatterji, who has left his client to the mercy of the Court. In the circumstances of the case, however, we feel bound to observe that the apology now tendered is only in the nature of a repetition of a formula.
10. The Court, it is true, ought not to be vindictive in matters of this kind. At the same time, the Court cannot allow itself to be trifled with. Litigants before this Court ought to understand that they will not be permitted to give undertakings to this Court and then break them with impunity; far less will they be permitted to have recourse to such dubious means as arming themselves with the orders of a sub ordinate court in prosecution of a scheme to flout the orders of this Court.
11. The only question which remains is what order we ought to pass. As I have stated already, it is not possible to overlook the offence which has been committed altogether. At the same time, we consider it right to take into consideration the fact that the opposite party is a fairly old man and is perhaps not too highly educated. He is also stated to be in failing health. It is also represented to us that by reason of compulsory removal from the premises concerned where he had been carrying on his business he has suffered financial loss and has had to contend in other ways also against adverse circumstances.
12. In passing our order against him we are not overlooking these circumstances.
13. In the result, we find the opposite party guilty of contempt of this Court and direct that he be detained till the rising of this Court and that he also pay a fine of Rupees fifty to the Sheriff in course of this day, failing which he will be committed to civil prison for seven days.
14. There will be no order for costs.
P.N. Mookerjee, J.
15. I agree.