1. This case has been the occasion for an interesting debate on two important questions of procedure relating to proceedings for contempt of Court, in view of the importance of the issues and the somewhat unsettled character of the practice of the Court, we invited Mr. H.N. Sanyal to appear as an 'amicus curiae'. Mr. Sanyal readily responded to our request and we are grateful to him for the assistance he rendered.
2. The points I have referred to arise out of the following facts: The appellant Hem Bala Dassi is the owner of premises No. 5, Ratan Sarkar Garden Street, Calcutta, which she let out to one Lalit Mohan Saha and Lalit Mohan, in his turn, sub-let the premises to a number of sub-tenants. Among the sub-tenants were the respondents to this appeal, Sunder Shaw, Kaloo Shaw, Hira Shaw and Nand Lal Shaw. In 1948, the appellant brought a suit against Lalit Mohan Saha, which was Suit No. 2449 of that year, and in that suit she obtained a decree for ejectment. In due course she attempted to execute the decree in the manner provided for in Order 21, Rule 35, Civil P. C., but was resisted by the respondents who ultimately brought a suit for a declaration that they were tenants under the decree-holder and were not liable to be ejected in execution of the decree obtained by her against Lalit Mohan. That suit was Suit No. 910 of 1949 and it was disposed of by P. B. Mukharji, J. on 6-6-1950. One of the plaintiffs, Nand Lall Shaw, had never appeared and so far as he was concerned, the suit was dismissed with costs. As regards the remaining three plaintiffs, Sundar Shaw, Kaloo Shaw and Hira Shaw, the suit was disposed of by consent on certain terms and one of the terms was that the said three plaintiffs gave an undertaking to the Court to vacate the rooms occupied by them within eight months from the date of the decree. The period of eight months expired on 6-2-1951. The appellant's case is that while Nand Lall Shaw vacated the premises, Sundar Shaw, Kaloo Shaw and Hira Shaw did not but, on the other hand, while retaining possession of the rooms occupied by them in violation of the undertaking given to the Court, they caused certain betters to be written by a solicitor in which it was falsely stated that they had vacated the old rooms and taken possession of certain new ones in pursuance of a fresh agreement with the appellant.
3. On 23-5-1951, the appellant took out a notice of motion which stated that on 4th June an application would be moved before Sinha, J. for an order, 'inter alia' that 'the plaintiffs 1, 2 and 3 Sundar Shaw, Kaloo Shaw and Hira Shaw be committed to the prison for contempt of the Hon'ble Court.' That notice was served on Kaloo Shaw personally, but in the case of Sundar Shaw and Hira Shaw, it was served by affixation, as they were not found on the premises and as Kaloo Shaw refused to accept service on their behalf. When the motion appeared in the list of new motions on 4th June, an attorney appearing for the respondents informed the learned Judge that two of his clients had not been served, but he was not prepared to contend at once that, as against them, the application should be thrown out 'in limine' and only asked for an adjournment to consider his position. The learned Judge adjourned the motion to the 8th June. Thereafter, the appellant took out a fresh notice of motion, returnable on the 8th June, and served it personally on Sundar Shaw and Hira Shaw. That notice was the same as the previous notice, with only the date changed, and it contained a note to the effect that the learned Judge had directed copies of the application papers to be served on Sundar Shaw and Kaloo Shaw, though in fact no such direction had been given. No further applicationwas made in connection with the fresh notice of motion.
4. Except the bare notice of motion, nothing else was served on the respondents. The notice merely stated that an order for committal to prison for contempt of this Court would be asked for and the grounds stated at the foot of the notice were:
Petition of the defendant Sm. Hembala Dassi abovenamed and verified by an affidavit of Ashutosh Boy affirmed by him on 16-4-1951 and the records and proceedings in this suit and in the suit No. 2449 of 1948 (Sm. Hembala Dassi v. Lalit Mohan Saha).
No copy of the petition referred to in the notice was served on the respondents. Actually, however, an affidavit-in-opposition was filed by Sundar Shaw and Kaloo Shaw and therein they referred to information as to the contempt with which the respondents Sundar Shaw, Kaloo Shaw and Hira Shaw were charged. It referred to the consent decree of 6-6-1950 and alleged a breach of the undertaking on the part of those three respondents.
5. At the trial of the application, no point was taken as to the confused manner in which the notice of motion had been taken out and served. The parties proceeded on the footing that there was but one application and the service of the notice of motion was in order. But it was contended that the notice itself was defective, inasmuch as it contained no statement of the contempt for which the three respondents were sought to be committed and that no proceedings founded on such a notice could be maintained. It is unnecessary to refer to another point taken on which the learned Judge held against the respondents, because it was not further canvassed before us.
6. On the principal point urged on behalf of the respondents, the learned Judge held in their favour. He observed that proceedings for committal for contempt were quasi-criminal in their nature and therefore it was essential that the established procedure should be strictly followed, not only in substance but also in form. By established procedure, the learned Judge meant the procedure established in England and that procedure, he held, was applicable in this Court, because it had inherited the jurisdiction and powers of the Supreme Court which were the same as those of the Court of the King's Bench and the Court of Chancery, as they stood then. According to the learned Judge, the English practice required that the precise act constituting the alleged contempt should be set out in the notice of motion itself and it could not suffice merely to refer to the petition and leave it to the respondent to ascertain from the petition, as best as he could, what the charge against him was. The learned Judge observed that in England, this rule applied both to motions for attachment and motions for committal, but in India even the distinction between attachment and committal did not exist. In support of his view that the notice was defective and the motion bad, the learned Judge relied mainly on the decision of the Bombay High Court in --Jayantilal Hiralal & Co. v. Waman Narayan', AIR 1932 Bom 638 (A), but he also referred to statements of the law in Oswald and Halsbury.
7. Against that decision the present appeal was preferred. The respondents in the appeal are sunder Shaw, Kaloo Shaw, Hira Shaw and Nand Lall Shaw, but it is not clear how the fourth person came to be impleaded. He had given no under-taking in the suit, the notice of motion had notbeen served on him, no allegation had been made against him in the petition but on the other hand, it had been stated that he had duly vacated the premises. As against him, therefore, the appeal must be dismissed in any event. It must also be dismissed as against Sundar Shaw and Hira Shaw, for Mr. Mitter, who appeared for the appellant, informed us that he would not press the appeal against them, in view of the irregularity in the service of the notice of motion, so far as they were concerned.
8. The only respondent left is Kaloo Shaw and on the merits of the appeal, the only point requiring consideration is whether the motion was bad, because no particulars of the contempt charged had been given in the notice which was the only paper served. It must, however, be considered first whether any appeal lies at all.
9. The provision regarding appeal is contained in Clause 15 of the Letters Patent which provides that, subject to certain exceptions, an appeal shall lie to the High Court 'from the judgment' of one Judge of the Court. It was contended that an order refusing to commit for contempt or to entertain an application for such committal was not a 'judgment' within the meaning of Clause 15 and accordingly no appeal lay.
10. It is necessary to define first the precise scope of the question raised. One of the exceptions contained in Clause 15 is that a sentence or order, passed or made 'in the exercise of criminal jurisdiction' shall not be appealable. Contempt of Court consists either in words or acts obstructing the administration of justice, in which case it is criminal contempt or in disobedience to orders or processes of the Court so as to cause private injury, in which case it is civil contempt or, in the language of English law, 'contempt in procedure'.' An order passed in a case where the contempt alleged is of the former kind is an order passed 'in the exercise of criminal jurisdiction' and an appeal is barred under the express language of Clause 15 -- 'Shyam Sundar v. Jodhraj', : AIR1948Cal214 .
In England also, an appeal in such cases is now barred by Section 31 (1) (a) of the Supreme Court of Judicature (Consolidation) Act, 1925, since the exception there contained, viz., a judgment of the High Court in a criminal cause or matter from which an appeal is provided for by the Criminal Appeal Act, 1907, does not cover an order for attachment or committal for criminal contempt, since no appeal is provided for in the Criminal Appeal Act against such a judgment. Whether the contempt in a particular case is civil or criminal contempt or partakes of the nature of both is often a question of great refinement, but this at least is well established that breach of an undertaking given to the Court to do or not to do a certain thing in the interest of a private party is mainly and substantially contempt in procedure or civil contempt. An order made in respect of such a breach is outside the exception contained in Clause 15 and accordingly whether an appeal lies from such an order must depend upon whether it amounts or does not amount to a 'Judgment'.
11. So far as this Court is concerned, there is clear authority in a three-Judge decision in the case of -- 'Mohendra Lall v. Anundo Coomar', 25 Cal 236 (C), that an appeal lies from an order made by a Judge on the Original Side, refusing an application to commit for contempt. But it was pointed out by Mr. Mitter himself that the view taken in that case had been, dissented from by the Bombay High Court in the case of --Narendrabhai Sarabhai v. Chinubhai Manibhai', AIR 1936 Bom 314 (D). The Calcutta case was fully argued, both on general principles and as to the true construction of the word 'judgment' in Clause 15, but unfortunately the Judgment gives no reasons. Besides, the contempt alleged in that case was interference with the possession of a receiver by certain third parties and the trial Judge refused the application on the ground that the receiver's right to possession was not too clear, nor that the alleged contemnors had not a bona fide claim to a superior title. In those circumstances, the case appears to have been one of a criminal contempt and, further, the decision appears to have been based on the principle of the old English cases in which it was held that an appeal would lie, at least in cases where the order sought to be appealed from had not been made purely as a matter of discretion, but on the view taken by the Court on a question of right, such as whether an act amounting to contempt had at all been done. The decision therefore does not appear to me to dispose of the point raised in the present case, at any rate not clearly and satisfactorily. I may point out that the criminal nature of the contempt was no bar to an appeal under Clause 15 of the Letters Patent, as it stood at the time, because before the amendment of 1919, the words of the exception were not 'sentence or order passed or made in the exercise of criminal jurisdiction', but 'sentence or order passed or made in any criminal trial'.
12. The Bombay Case is more in point. It was a case of a breach of an undertaking and the trial Judge held that no breach, such as would justify him in committing the respondent to prison, had been proved. An appeal was preferred from that order, but the appellate Court held that no appeal lay, inasmuch as the order sought to be appealed from was not a 'judgment' within the meaning of Clause 15. Beaumont, C. J. and Rangnekar, J. who delivered separate but concurring judgments, both pointed out that the Bombay High Court had always acted upon the definition of 'judgment' given by Couch, C. J. of this Court, viz., ' 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability' -- 'Justices of the Peace of Calcutta v. Oriental Gas Co.', 8 Beng L. R. 433 (E).
In the view of the learned Judges, an order refusing to commit a person for a breach of an undertaking given to the Court could not be said to affect the merits of any question between the parties, but affected only the right of the Court to enforce its order and vindicate its authority. The question was one entirely between the Court and the person guilty of the breach and the Court might make any order it deemed fit to make, but the party in whose interest the undertaking violated had been given had no right to insist that the violation must be punished with committal to prison and therefore a refusal to commit did not affect any question between the parties. In that view, the learned Judges declined to follow the decision in -- '25 Cal 236 (C)'.
13. Mr. Sanyal submitted that the view taken by the Bombay High Court was not right and in my opinion his submission was well founded. In this Court at least, the definition of 'judgment' given by Sir Richard Couch has not always been taken as the last word and Judges have on occasions pointed out the necessity of enlargement or modification. But Mr. Sanyal submitted that for the purposes of the present case, he was prepared to accept the definition, as it was, and he would contend that an order refusing to commit a person for breach of an undertaking given to the Court was within the ambit of that definition.
In my opinion, Mr. Sanyal's contention is correct and must be accepted. An undertaking given to the Court is equivalent to an injunction.--'Neath Canal Co. v. Ynisarwad Resolven Coll. Co.', (1875) 10 Ch 450 (F); -- 'Milburn v. Newton Colliery Ltd.', (1908) 52 SJ 317 (G). Long ago, Sir John Nicol said in the case of -- Barlee v. Barlee', (1822) 1 Add 301 at p. 304 (H), that when contempt was incurred by a party's neglect or refusal to do some act which was in justice due to the other party in the cause, 'the imprisonment which follows is at the prayer of the other party, a prayer which the Court cannot refuse to accede without a breach of its duty & a denial of justice.' In other words, the party affected prejudicially by the act constituting contempt has a right to initiate proceedings and demand that the contemnor be committed to prison. That is so, because 'the true nature of the remedy is in such cases a relief granted by way of execution to the applicant' (Edwards on Execution, p. 244), or as Cotton L. J. put it in -- 'O'Shea v. O'Shea', (1890) 15 PD 59 (1)
'where an injunction is granted against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt, that is really only a procedure to get something done in the action'.
The same view was expressed by Lord Lindley in-- 'Seaward v. Paterson', (1897) 1 Ch 545 at p. 555 (J) when he said that in the case of a motion to commit a man for breach of an injunction, he was 'proceeded against for the purpose of enforcing the order for the benefit of the person who got it'.
It will thus be seen that as between the parties, committal to prison in such cases is a form of execution which the party in whose interest the order was made or the undertaking given, has a right to ask for in order to the enforcement of the undertaking or order and which the court cannot properly refuse. But I must add that that is not the whole position. In circumstances involving misconduct -- and misconduct includes breach of an undertaking given to the Court --contempt in procedure bears a twofold character, implying as between the parties a right to exercise and a liability to submit to a form of execution and, as between the party in default and the state, a penal and disciplinary jurisdiction to be exercised by the Court in public interest: Halsbury, Hailsham Edition, Vol. VII, p. 24, on the authority of (1897) 1 Ch 545 at pp. 555-56 (J) and -- 'Scott v. Scott', (1913) AC 417 at p. 440 (K). With great respect, in the Bombay case the learned Judges fell into the error of confining themselves to the second aspect, but overlooked the first. But the first aspect cannot be overlooked. If committal to prison for breach of an undertaking given to the Court is a form of execution which the party for whose benefit the undertaking was given is entitled to ask for, an order refusing to commit or to entertain an application for committal undoubtedly affects the merits of a question between the parties and is therefore a 'judgment' within the definition of Sir Richard couch, if so, an appeal obviously lies under Clause 15 of the Letters Patent,
14. it may be interesting to note how the word 'judgment', occurring in the corresponding provision of English Law, has been interpreted. Section 27(1) of the Supreme Court of Judicature (Consolidation) Act, 1925, provides that subject as otherwise provided, the Court of Appeal shall have jurisdiction to hear and determine appeals from 'any judgment or order of the High Court',but Section 31(1) (a) provides that except as provided by the Act or by the Criminal Appeal Act, 1907, 'no appeal shall lie from any judgment of the High Court in any criminal cause or matter'. The word 'judgment', in that provision is treated in the cases as equivalent to 'decision': Halsbury, Vol. VII, 54, note (g). 'It is used here in a broad sense and extends to all orders of the High Court': -- 'Beg v. Fletcher', (1877) 2 QBD 43 (L). It is true that in the case of the word, as used in our Letters Patent, the definition of Couch, C. J. has added certain qualifications, but as shown above, those qualifications do not exclude the order appealed from in the present case.
15. On behalf of the respondents, it was contended by Mr. Bose that the High Court was a Court of Record and therefore apart from whether the order of Sinha, J. was a judgment or not, no appeal lay from the order made by the learned Judge in a matter involving contempt of the Court. To that argument there are two answers. In spite of this Court and other High Courts of India being Courts of Record, the' Privy Council has entertained appeals from their orders in contempt matters in several cases. Secondly, the appeal in the present case is to the High Court itself and not from the High Court. In a similar case, it has been held in England that when a Judge has refused to commit for contempt, an appeal lies from such refusal, although where the, refusal was not based on a particular view of a disputed question but simply an exercise of judicial discretion, the Court of Appeal, while entertaining the appeal, will be slow to interfere with the order of the Court below. --'Jarmain v. Chatterton', (1881-82) 20 Ch D 493 (M).
16. I may now turn to the main question in the case which is whether Sinha, J. was right in holding that the motion was bad, because the notice contained no statement of the contempt charged. The learned Judge referred to the decision in 'AIR (1932) Bom 638 (A)' with which he agreed and observed that so far as he was aware, that case had never been dissented from in this Court. Unfortunately the decision in --'Prokash Chandra v. Manindra Nath', ILR (1946) 2 Cal 499 (N), where the Bombay decision had been expressly dissented from and a contrary view taken, was not cited before the learned Judge.
17. The substance of the question is this: When a person is warned by a notice of motion that an application will be made before the Court for an order to commit him to prison for contempt, is he entitled, as of right, to be informed by the notice itself of the specific act of contempt charged against him and when the act charged is not mentioned in the notice, must the application fail for that reason alone?
The rules of the Original Side of this Court do not contain any special provision for notices of motion in cases of contempt. There is only a general provision contained in Rule 4 of Chapter XX which applies to all notices of motion and all that It provides is that the notice
'shall state the time and place of applicationand the nature of the order asked for, with anote at foot specifying the grounds to be usedin support of the application.'
I confess I am a little intrigued by the language of the last portion of the provision I have quoted. If the word 'grounds' is to be taken in its natural sense of 'reasons', the word 'used', to say the least, does not go well with it and, on the other hand, If the meaning be the petition or affidavit intended to be used in support of the prayer, the use of theword 'grounds' to express that meaning is clearly inappropriate. But the meaning established by the practice of the Court is the latter and the insertion of a foot-note, mentioning the petition or affidavit proposed to be used, is regarded as sufficient compliance with the Rule. In those circumstances, a notice of motion in respect of an application for an order to commit for contempt, which mentions the petition to be used at the hearing but nothing more, cannot be said to be defective under the Rules of the Court, as they stand, unless it can be said that special considerations apply to cases of contempt.
18. Sinha, J. did not refer to the Rules of this Court, but he seems to have thought that special considerations did apply to cases of committal for contempt, because they were quasi-criminal in nature and therefore it would not only be proper to import the wholesome principles of the English practice, but also legally correct to do so, because the jurisdiction to punish for contempt which this Court had was the same as that of the Court of the King's Bench and the High Court of Chancery, which it had inherited from the Supreme Court. The whole matter was dealt with by Das, J. in 'ILR (1946) 2 Cal 499 (N)' where the learned Judge pointed out that the requirement of the English practice that the particulars of the contempt charged must be furnished along with the notice of motion did not exist in 1773, the date of the Charter Act, but had been introduced by later statutory rules and that even since then, the requirement applied only to cases of attachment but not to cases of committal. His Lordship proceeded to observe that if there was no distinction in India between attachment and committal, as held in -- 'Bai Moolbai v. Chunilal Pitambar', 33 Bom 630 (O), there was no reason why the English procedure relating to committal should not be followed in India rather than the procedure relating to attachment, particularly since the former was warranted by our own Rules.
19. In stating what the English procedure was, Sinha, J. relied on a passage in Oswald on Contempt and a passage in Halsbury's Laws of England, Vol. VII, p. 40. The latter relates clearly to cases of attachment and is based expressly on Order 52, Rule 4 of the Rules of Supreme Court which is limited to applications for that form of process. Cases of applications for committal are dealt with separately in a passage which follows. The passage in Oswald (Third Edition, pp. 207-8) does say that a notice of motion for attachment must state in general terms the grounds of the application and that the same rule applies to notices of motion to commit, but it was pointed out by the Court of Appeal in -- 'Taylor, Plinston Brothers and Co., Ltd. v. Plinston', (1911) 2 Ch 605 (P) that textbook writers had been misled by the wrong head-note in the case of -- 'Litchfield v. Jones', (1884) 25 Ch. D 64 (Q), as reported in the authorised reports. The Court held clearly that in the case of a notice of motion to commit, the provisions of Order 52, Rule 4, requiring the notice to state in general terms the grounds of the application and a copy of any affidavit, intended to be used, to be served along with the notice, did not apply.
20. It is not easy to ascertain all the details of the English practice from the reports in the books, for the practice seems to have differed widely before the Judicature Acts and to differ to a certain extent even now, according as the contempt was or is civil or criminal, or as the proceedings were or are for attachment or committal or as the proceedings were or are taken at common law in Chancery. Particularly is the distinction between attachment and committal not too apparent, seeing that whether a person is attached or not attached, he is consigned to prison in both cases all the same. On the distinction between the two forms of proceeding, the best statement is to be found in Mr. Registrar Lavie's note, set out in the report of the case of -- 'In re Evans; Evans v. Norton', (1893) 1 Ch 252, at p. 259 (R). It appears that before the Judicature Act, the distinction, broadly speaking, was that a man was committed for doing what he had been ordered not to do and attached for not doing what he had been ordered to do in other words, committal was the remedy for doing an act prohibited by an order, whereas attachment was the remedy for neglecting some act ordered to be done. That distinction has to a large extent been abolished by Order 42, Rule 7 of the Rules of the Supreme Court which makes both the remedies applicable to both kinds of transgression and indeed in many cases it was said, even without reference to the Rules, that for all practical purposes the distinction had disappeared: --'Callow v. Young', (1887) 56 LT (NS) 147 (S); --'Harvey v. Harvey', (1885) 26 Ch D 644 (T).
But there are other cases such as interference with a receiver, misconduct towards a ward or comment on a pending action, where there is no question of the breach of any order and in such cases, which are not covered by Order 42, Rule 7, room for the distinction still remains. The generally accepted view, however, is that committal is the proper remedy in such cases. Other points of distinction between attachment and committal are that in the case of the former, the order is executed by the Sheriff who lodges the prisoner in county gaol and it is virtually a sentence for an uncertain term of imprisonment until the Court authorises the prisoner's discharge. In the case of the latter, the order is executed by the plaintiff or, in his absence, the usher, who lodges the prisoner in the Court's prison and the order either commits the prisoner for a fixed period or simply commits him to prison, leaving him to apply for his discharge.
21. But the distinction with which we are concerned in the present case is the distinction in the form and manner in which the proceedings were formerly initiated in cases of attachment and committal and in that distinction will be found the reason for the special rule of English law that in cases of attachment, the notice of motion must state the grounds in general terms and that where an affidavit is intended to be used, a copy of the affidavit must also be served along with the notice. It appears that under the old practice, an order for attachment could be obtained on the Chancery Side without an order of the Court. One had merely to produce before the proper official in the Court's office the order concerned and evidence of default In complying with it and an attachment issued as a matter of course. '(1893) 1 Ch 252 (R)', '(1911) 2 Ch 605 (P). This practice appears to have been confined to the Chancery Side, for it is stated in Halsbury that, at common law, a writ of attachment was never issued without leave of the Court (Halsbury, Hailsham Edition, Vol. VII, p. 37 Note (o)). Now, however, the Judicature Act has amalgamated the several Divisions of the High Court and Order 44, Rule 2 provides that 'no writ of attachment shall be issued without leave of the Court or a Judge, to be applied for on notice to the party against whom the attachment is sought to be issued.' The present procedure therefore is that an application for leave to issue a writ of attachment is to be madeby motion to the Court, both in the Chancery and the King's Bench Divisions, which notice to the party affected. I am leaving aside the distinction that in the King's Bench Division, applications to enforce obedience to orders are made by summons to a Judge in chambers. The general provision regarding notices of motion is contained in Order 52, Rule 3 of the Rules of the Supreme Court which merely says that except in certain specified cases, notice must be given to the party affected by a motion before the Court is moved. The prescribed form of the notice contains no reference to grounds and all that it requires is an intimation that on a specified day at a specified hour or so soon thereafter as counsel can be heard, a particular counsel will move the Court on behalf of a particular party for a particular order -- See Form 18, Annual Practice, 1950, Vol. 2, Appendix B, Part II, p 2555.
Motions for committal are governed by Rule 3 and notice in Form 18 is sufficient notice. But with regard to motions for attachment and certain other reliefs, there is a special provision in Order 52, Rule 4 which lays down that every notice of motion must state in general terms the grounds of the application and where the motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served along with the notice. It has been explained that this rule was framed in order to supersede the old practice of obtaining a writ of attachment without leave of the Court and without notice to the alleged contemnor, which was leading to abuses, and that the statement of the grounds and the connected affidavit are only modern substitutes for the old praecipe which, formerly, was only taken to the office but is now required to be served on the party affected. -- '(1911) 2 Ch. 605 (P); Mr. Registrar Lavie's memorandum in -- '(1893) 1 Ch. 252 (R)',. The explanation seems to explain nothing, because if these formalities were never required to be observed in the case of applications for committal for the reason that such applications were dealt with by the Court, it is not easy to see why, now that provision has been made for bringing before the Court applications for attachment as well, a special procedure should be required to be followed in the case of such applications. Besides, in the King's Bench Division, where leave of the Court was required in cases of attachment even under the old practice, motions for attachment were made in the same way as motions for committal and with the same kind of notice. Why a different kind of notice should now have been brought necessary, it is not easy to see. It cannot even be said that whatever the reason, it is the policy of the new rules that the party against whom a writ of attachment is sought, should be apprised in advance of the particulars of the case against him, because personal service of the notice is not essential and where a party has not appeared, it is sufficient to file the notice with the proper officer, as provided for by Order 67, Rule 4; -- '(1893) 1 Ch. 252 (R)'. Why then a fuller notice has been prescribed for motions for attachment, is not clear.
22. In view of the above state of the English procedure, it appears to me that there is no good reason in that procedure to insist that in proceedings for committal in this Court, the special rule of English law as to the notice of motion in cases of attachment must be followed. Motions for] committal can be made in England, both on the Chancery Side and the Civil Side of the King's Bench Division, on a bare notice that an application will be made on a certain date. Rule 4 ofChapter XX of the Rules of the Original Side of this Court requires the notice to be fuller, because it provides that the grounds to be used in support of the application must be specified in the notice. It is true that according to the accepted sense of the word 'grounds' only the petition or affidavit is meant, but even so, the party sought to be proceeded against is given more information than in England, It is again true that where the liberty of a person is concerned, a writ should not issue without notice to him of what the case against him is, but what we are considering here is whether such information must be given by the notice of motion itself or whether it is sufficient to mention the petition or affidavit on the usual terms as to costs. I can see nothing in the rules of this Court or in the English practice to require me to hold that omission to specify the alleged act of contempt in the notice itself must entail a dismissal of the motion. In my opinion, however desirable it may be to give particulars of the contempt charged in the notice of motion itself, in law it is sufficient if the provisions of Chapter XX Rule 4 are complied with, both in motions for committal and motions for attachment, if ever a motion of the latter kind can be made in an Indian Court at all.
23. I have already stated that Mr. Mitter did not desire to press the appeal as against sundar Shaw and Hira Shaw on whom the first notice of motion was not personally served. I may, however, point out that in cases of civil contempt, it is not essential that notice must be personally served before the motion, even if it be a motion for committal, can be heard. Every endeavour must certainly be made to effect personal service, but where such endeavour fails, the Court may make an order for substituted service: -- 'Mander v. Falcke', (1891) 3 Ch. 488 (U).
24. I have now discussed all the points raised in the appeal. The parties, and Mr. Sanyal as well, submitted that the procedure to be followed on the Original Side of this Court in proceedings for contempt was in an unsettled state and we might take this opportunity for settling the procedure. It is clear to me that the framers of the Rules of the original Side had not present to their minds the consideration that proceedings for contempt might require separate treatment. As the Rules stand now, proceedings can only be initiated by a notice of motion or perhaps by a Court application in urgent cases and the common procedure applicable to all other cases must be followed. A judicial prescription cannot override the Rules. I can therefore only indicate on general lines what the better procedure would be as respects certain essential matters, without being inconsistent with the Rules.
25. Before I do so, I should like to point out that the question in issue in the case of -- '(1911) 2 Ch. 605 (P), was not what the notice of motion should contain, but whether a copy of the affidavit on which the motion was founded ought to have been served along with the notice of motion. The form of the notice served in the case does not appear from the report, but since the contempt was of a civil nature and the motion was for committal, the notice was presumably a bare notice of the intended application in Form No. 18. It was still held that service of the affidavit was not obligatory. But although such is the strict law, it is stated in Halsbury that although Order 52, Rule 4 does not apply to motions for committal in terms, in practice the procedure applicable to attachment is followed and therefore copies of the affidavits intended to be relied on should be served along with the notice of motion, as in cases ofattachment (Halsbury, Hailsham Edition, Vol. VII, p. 46, Note (h) and -- 'Carter v. Roberts', (1903) 2 Ch. 312 (V).
26. Having regard to all that I have said before, I should consider the better procedure to be as follows:
(1). The application should be made by notice of motion;
(2). Although it is not obligatory under Chap. XX, Rule 4 of the Original Side Rules, the notice should preferably specify the act of contempt charged and a copy of the petition on which the notice is founded should also be served along with the notice;
(3). Every attempt must be made to serve the notice personally, but in suitable cases the Court, on being satisfied that personal service cannot be effected, may make an order for an alternative form of service authorised by the Code of Civil Procedure, read with Rule 26 of Chapter VIII of the Criminal Side Rules and by Rule 11 of that Chapter;
(4). The above rules would not apply to cases of purely criminal contempt where the application should be by a motion for an order 'nisi' or an order upon the respondent to appear and answer and which are dealt with by the summary process.
27. Reverting now to the present case, for the reasons given above, this appeal is dismissed as against respondents 1, 3 and 4, Sundar Shaw, Hira Shaw and Nandlal Shaw. It is allowed as against respondent 2, Kaloo Shaw, the order of Sinha, J., is set aside and the case is remitted to the Court below for the motion to be heard and determined, as respects the said respondent, in accordance with law.
28. There will be no order for costs as respects Nand Lal Shaw who has not appeared. Respondents Sundar Shaw and Hira Shaw will get their costs from the appellant. As respects Kaloo Shaw, the costs will be costs in the cause.
S.R. Das Gupta, J.
29. I agree.