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TMI Blog1957 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the Accountant General, Ranchi, to pay the passage money, as provided in the Statutory Rules, to the wife and children of the petitioner as prayed for. But in the circumstances of the case, there will be no order as to costs . It is said that thereafter on the same date, namely, 11th March, 1957, when the aforesaid order was passed, Mr. N. Baksi wrote a letter to the opposite party to comply with the same and to give effect to it within ten days from its making. In reply thereto the following letter was delivered to him on 18-3-57. Office of the Accountant General, Bihar Ranchi No. DG-2/2979/ (R--AO) Dated Patna the 18th March, 1957 From The Accountant General, Bihar, Ranchi, To Sri N. Baksi, I. O. S., Member, Board of Revenue, Bihar, 2 King George Avenue, Patna 1. Subject: Passage certificates. Sir, In inviting a reference to your letter No. nil, dated March 11, 1957, on the above mentioned subject, I am to inform you that necessary steps are being taken by us to move the Supreme Court in the matter. Further information in this regard will be conveyed to you after orders are passed in the Supreme Court case. Yours faithfully, Sd. S.P. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been filed a few days earlier or at least the present complications could have been avoided by drawing the attention of the Court in the meantime to the difficulties that stood in the way of an early application. Unfortunately that not having been done it now arises for consideration as to whether the way in which Mr. O. K. Ghosh has moved in the matter has laid him open in law to a charge of wilful disobedience of the order passed by this Court. In answer thereto the learned Solicitor General has strongly defended Mr. O. K. Ghosh and in support of his defence has raised four contentions, namely, (1) that the demands made by Mr. Baksi in his letter dated the 11th March 1957 were more comprehensive OP wider than those in the original writ petition or in the order made by the High Court ; (2) that the notice served upon the respondent did not comply with the accepted rule inasmuch as it did not clearly and fully specify the matters in regard to which contempt was alleged to have been committed; (3) that no order or writ had yet been served on the respondent and so the question of disobedience to such an order OP writ could not at that point of time arise' and (4) that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration of justice would be hampered by the delay in proceeding in the ordinary course of law; and that when any antecedent process has to be put in motion every prescribed step and rule, however, technical should be carefully taken, observed, and insisted upon. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced or pretends to be reduced, to such a state of humility in fear of more severe consequences if he shows any recalcitrency that he Js either unable or unwilling to defend himself as he otherwise might have done. But I think, so far as our Court is concerned, this has to be read in the light of the procedure that is now actually in practice here and not in relation to what is prevalent in English Courts. And what our procedural law in a matter like this, as now established by practice, requires us the substantial compliance of the rule relating to notice and not any technical form of it. Therefore, if the facts stated therein are in substance sufficient to apprise the other side of the charge that he has to meet that in law has to be considered as a valid notice. Thus the first two contentions fail. 5. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110 at P. 119 (P) ; c. A. Avory v. Andrews (1882) 51 LJ Ch 414 (G) ; United Telephone Co. v. Dale (1884) 25 Ch D 778 (H) ; (2) orders embodying an undertaking to do an act by a named day (D. v. A Co. (1900) 1 Ch 484 (I) ; In re, Launder ; Launder v. Richards ( 1908) WN 49 (J) ; (3) orders to answer interrogatories or for discovery or inspection of documents Little v. Roberts (1874) 30 LT 367 (K) ; In re, Mulcaster; Dalston v. Nanson (1878) 47 LJ Ch 609 (D ; Joy v. Hadley (1883) 22 Ch D 571 (M) ; Hampdon v. Wallis (1884) 26 Ch D 746 (N) C. A. ; In re, Tuck; Murch v. Loosemore (1906) 1 Ch 692 at p. 696 (O) O. A.; (4) where an order for substituted service has been made Skegg v. Simpson, (1848) 2 De. G. and Sm. 454 (P) ; In re, Lloyd, (1848) 10 Beav 451 (Q) ; Roby v. Scholes (1853) 1 W R 118 (R); In re, Steele; Green v. King (1879) 23 Sol Jo 906 (S) ; (5) where the respondent has evaded service of the order Kistler v. Tettmar (1905) 1 KB 39 (T) C. A.; Hyde v. Hyde (1888) 13 PD 166 (U) C. A. ; Alien V. Alien (1885) 10 PD 187 (V) ; Miller v. Miller (1870) 2 PD 54 (W). After service of the order it is no excuse for the party served to plead ignorance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng him to pay money into Court unless the order has been personally served upon him. The fact that the order was made by consent, and that he was in Court when it was . made and initialed one of the briefs, will not, make personal service unnecessary unless it is shown that he is evading service. Therefore, barring exceptions as stated above, the rule is that service of the order or judgment is essential for founding an action in contempt. Mr. Das, however, has challenged the correctness of this proposition and in respect thereof has drawn our attention to some other passages from Oswald's book on Contempt of Court. One of these passages is at page 108 and that reads : Ignorance of the contents of the order is no excuse, where the party served with it does not read it himself, but relies on a mere statement of its effect by his solicitor (1887) 4 TLR 36 (X). But actual service is not essential if it is shown that the party knew or might have known of the order (1884) 25 Ch D 778 (H). It is true that this passage when read independent of its context does give support to the contention of Mr. Das. But It is an established mule of interpretation that in order that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Das has drawn our attention to the decision in Hadkinson v. Hadkinson 1952 PD 285 (Z2). No doubt it does lay down that it is the unqualified obligation of every person against, or in respect of whom, an order has been made by a Court of competent jurisdiction,' to obey it unless and until that order is discharged, but. nowhere it goes to the length of saying that that obligation though subsisting so long as it is not discharged operates at once against the person charged even without any service of that order on him. Therefore, the contention of Mr. Das on the point of service cannot be accepted. 10. In the alternative, Mr. Das has argued that the order, referred to above, which has led to this proceeding in contempt, was in substance a prohibitory order though couched in an affirmative form and as such it fell in the list of exceptions to the general rule. On principle, it cannot be denied that an order though affirmative in form may in certain cases, be, in substance, prohibitory or restrictive as in the case of some contracts or covenants, for example, Kerr on Injunctions (6th Edition) at page 437 says : The mode in which contracts or covenants, when affirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause in those cases the process of attachment and committal was in relation to a criminal contempt and not what is called civil contempt, as is the case here. In my opinion, there is no substance in either of these two contentions. As against the first, the clear answer is that though in our Courts there is no defined procedure laid out for a proceeding in contempt, as is to be found in the procedural law of England, but the authorities unquestionably establish that the principles underlying those rules have been uniformly acted upon in our Courts. AS against the second, it will suffice to say that though there is, as is well known some points of difference between a criminal and a civil contempt but that difference does not touch the matter of execution by attachment and committal in the case of a civil contempt in contrast to the process of attachment and committal as followed in a criminal contempt. The difference, if any, between a criminal and a civil contempt lies essentially in the nature of conduct that gives rise to the one or the other. Mookerjee, J. in Moti Lal Ghosh, In re ILR 45 Cal 169 : ( AIR 1918 Cal 988 ) (24) says : Consequently, in the case of a crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it be followed as a summary process for criminal contempt or as the form of execution of an order or judgment in a civil contempt. That being so, there is no substance in the contention that the general rule relating to service in the case of a criminal contempt is not applicable to a case of civil contempt. 12. Therefore, in view of the finding arrived at in this case that the writ had not been served on Mr. O. K. Ghosh by the time he had sent the aforesaid reply to Mr. Baksi and also in view of the fact that this case does not fall in any of the exceptions to the general rule, as held above, it follows that this proceeding in contempt is not competent. Therefore, on that ground alone, it fails. And if that is so, then the question as to whether there was any intention or not on the part of the respondent to commit any wilful disobedience of the order passed by this Court becomes purely academic and in that view of the matter I think it is not necessary to give any definite finding on that point; though on principle this much will have to be conceded that if not in the case of prohibitory injunctions at least in the case of mandatory orders the question of intention may be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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