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TMI Blog1982 (5) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Now the plaintiff has made an application to this court under Sections 10 and 12 of the Contempt of Courts Act 1971 (the Act) read with Article 215 of the Constitution. The respondents to this application are (1) Mrs. Kamla Mathur and (2) Rama Shankar Mathur. The plaintiff complains that both wife and husband have flouted the order of injunction by going on with the construction. He says that they should be committed for contempt for acting in defiance of the injunction. The wife is admittedly a party to the suit The husband is said to be an aider and abettor of contempt because he is 'supervising the fresh illegal construction activities. (3) Notice of this application was issued to the wife and the husband. They appeared in court and are represented by counsel. The matter first came before Charanjit Talwar J. He was of the view that the husband was not a party to the suit and the averments made against him prima facie constituted on offence of criminal contempt of court. Since cognizance of criminal contempt can be taken only by a division bench he, by order dated September 1, 1981, directed that the matter be placed before a division bench. This is how the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rule shall remain in force for more than one year. at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceedings, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto, (7) Rule 2A was inserted by the Amendment Act of 1976. Sub-rules (3) and (4) have been omitted and Rule 2A enacted in their place. It provides for cases of disobedience or breach of injunction. The transferee court can also exercise this power. (8) The breach by a party of an order made against him or her in the course of a civil case is a perfectly familiar thing. Cases of breach of injunction are tried every day. The proper court to try that is undoubtedly the court which tries the civil proceeding and makes the order. I have never yet heard that cases of disobedience of injunction were anything but subject to trial by the civil judges trying the suit. And in the course of the trial it is open to the person accused of breach to establish upon the facts that what had been done is not a breach in fact, but was a legitimate and defensible action. In Taylor v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is clearly more desirable that the court which made the order of injunction should go into the facts, and ascertain the truth of the alleged disobedience, and the extent to which it is willful . (page 22). Case against the husband : (12) The question remains regarding the liability of the husband. Can he be punished for contempt of court under contempt of court, counsel for the plaintiff argued that under Sections 10 and 12 of the Act and Article 215 of the Constitution this High Court has ample power to punish a person even though he is not a defendant to the suit if the Court is satisfied that he is instigating or assisting in the disobedience of the injunction order or breach of its terms. I may straightway say that the body of the case law in India is against this contention. I shall refer to two recent authorities, In Indu v. Ram Bahadur Choudhary AIR1981All309 Sinha J. said : In my opinion, a person who has got an effective alternative remedy of the nature specified under Order Xxxix, Rule 2-A or under Order XXI. Rule 32. Civil Procedure Code. should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o suppose that any such power was intended to be conferred by the terms of rule 2 of that order. It is quite true that the phrase used is the person guilty of such disobedience or breach. .......... 'The person guilty of such disobedience or breach includes a person guilty of any such terms. It seems to me wrong to argue that clause (3) is intended to give the court power to visit for contempt of court people against whom no order is made or terms imposed. I have the greatest difficulty in seeing that anybody can be guilty of disobedience of an order except the person to whom the order is directed. (15) In that case the District Judge had not only punished for contempt of court the persons who were guilty of breach of his order, but had also directed the properties of . a person to be attached who was abetting other people in committing contempt of court. Rankin Cj held that the district judge had no jurisdiction to make the order against the alleged abettor or aider. This is a weighty authority having regard to the eminence of Rankin Cj who decided it. It is a clear authority against the proposition contended for. (16) Following Mawazzam Ali's case (supra) Niyogi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded or abetted them in breaking it. The respondents sought to avoid this difficulty by maintaining that the doing by anyone of an act which was forbidden by the injunction was itself an offence. Their lordships can find no authority for so wide a proposition. It is certainly not enunciated or indeed hinted at the cases referred to nor do they think it is sound in principle. (19) The Privy Council was then pressed with the argument that Ghosh and Banerjee were bound by the injunction as deriving title from the Secretary of State. To this they said : THE utmost which the respondents would say was that the Kalyanpur Company, having derived their supposed interest from the Secretary of State, who had been forbidden to interfere with the respondents' lease, were acting against the spirit if not the letter of the injunction in taking or continuing in possession of the quarries, and were Therefore guilty of contempt in interfering with the respondents' lease. The fact, however, that Gosh and Banerjee claimed on behalf of their Company to derive title, rightly or wrongly (and their Lordships will assume wrongly), through the Secretary of State, cannot in their view make t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction order issued by him. Criminal contempt : (24) Counsel for the plaintiff says that the husband is guilty of criminal contempt of court. I do not agree. This is not a case of criminal contempt. Criminal contempt means : THE publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or tends to scandalise, or lowers or tends to lower the authority any court; or (ii) prejudices, or interferes or lends to interfere with the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice in any other manner; (25) In Advocate General Bihar v. M. P. Khair Industries 1980CriLJ684 (19) the Supreme Court described the nature of criminal contempt in these words : IT may be necessary to punish as a contempt, a course of conduct which abuses and males mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, a sinning against the majesty of the law and the Time-honored jurisdiction over .such offences is now undisputed. Criminal contempt; has been defined as despising of the authority of court. Sometimes by using words importing scorn, reproach or diminution of the court, its process, orders, officers, or ministers, upon executing or serving such process or orders. The distinction between civil and criminal contempt : (28) What is the distinction between civil contempt and criminal contempt ? Civil contempt or contempt in procedure as it is called, consists of failure to comply with an order of the court. The law provides sanctions for an enforcement of the process and orders of a court. Although civil contempt is basically a wrong to the person who is entitled to the benefit of the court order, there has always been a punitive element in the civil contempt disobedience. of a court order of injunction, for example, can result in a committal to prison just as a criminal contempt can. But civil contempt is essentially remedial and coercive. Civil contempt of court exists to provide the ultimate sanction. against him. who refused to comply with the order of a properly constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guished between a motion to commit a man for breach of an injunction, which is technically wrong, unless he is bound by the injunction and a motion to commit a man for contempt of court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice.' The inference to be drawn from this distinction made by Lindley Lj is that the liability of the promoter was considered to be as for a criminal contempt of court. In Scott v. Scott (1913) A.C. 417, however, Lord Atkinson denied that this was so, and himself suggested that it would be absurd if a criminal contempt were to be committed by one who was not personally prohibited from doing the act in question, while no more than a civil contempt was committed by one who was a third party which is said to be guilty of aiding and abetting the contempt incurs the liability of a principal offender. The powerful speech of Lord Atkinson Scott v. Scott (supra), shows that an aider and abetter will also be guilty of a civil contempt because the principal is guilty of civil contempt. (See Miller Contempt of Court pp. 249-250). Salmon Lj has said : A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an aider and abetter. I have the greatest difficulty , he wrote, in seeing that anybody can be guilty of disobedience of an. order except the person to whom the order is directed. The reason is that Indian law is codified and the statute will govern us. Therefore my conclusion is this. Order 39 does not empower the court to punish an aider and abettor . Under the Act of 1971 it is not a criminal contempt. (34) The plaintiff's counsel referred us to an unreported judgment of a division bench (Prakash Narain and F. S. Gill JJ) in Criminal Original 68 of 1977 decided on 23-2-1979 : Raj Prakash vs. Choudhry Plastic Works(24). That was a patent case. The High Court passed a decree of injunction in plaintiff's favor. The defendant disobeyed the decree. It was a case of willful disobedience of the undertaking given to the High Court. The division bench punished the defendant for a deliberate disobedience to an order of the court and breach of the undertaking given to the court. The judges held that it was a case of civil contempt. This case illustrates that civil contempt is essentially a wrong to the person entitled to the benefit of the order or undertaking . It involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process or the facts of this particular case as having a criminal character. Appeals (38) There is another good reason why this application must fail. The plaintiff wants us in the High Court to try both wife and husband for contempt. Suppose we do. It will lead to startling results. The order of injunction was made by the subordinate judge under Order 39, Civil Procedure Code . From his order appeal lay to the court of the senior subordinate judge. Appeals were actually filed in that court and were heard and dismissed by the senior subordinate judge. For disobedience the wife can be punished under Rule 2A of Order 39 by the subordinate judge. An appeal lies from his order under that rule. An order under rule I, rule 2 and rule 2A of Order 39 has been made expressly appealable under Order 43 rule I (r). All these appeals in the present case will lie to the senior subordinate judge, the valuation of the suit being ₹ 200 for purposes of court fee and jurisdiction as fixed by the plaintiff. It would be anomalous to hold that the High Court can punish for contempt under the Act or Constitution committed of the sub judge's order. (39) The Code of Civil Procedure does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (42) The mere disobedience by a party to a civil action of a specific order of the court made on him in the suit is civil contempt . The order is made at the request and for the sole benefit of the other party to the civil suit. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity, but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement. A. G. v. Times Newspapers Ltd. (1973) 3 Wlr 298 per Lord Diplock. (43) All that is at stake in the present case is the private rights of the parties. For defiance of the courts under the remedy is provided in the Code. It is attachment and detention in civil prison. For deliberate defiance of interim injunctions the court can send the contemner to prison. If the subordinate courts cannot enforce their injunctions the order virtually would be worthless. It is the deterrent effect of an injunction plus the liability to imprisonment for its breach which is the remedy. The subordinate judge can punish th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras Leach C.J. applied it in Official Assignee v. Suryakanthammal in a case of insolvent's contempt. Chawla J. in this court approvingly referred to in a case of disobedience of court's order See Kuldip Rastogi v. Vishva Nath, AIR1979Delhi202 . (46) There is no agreement amongst the judges on its true ratio decidendi. In a trenchant criticism of the view that this case is an authority on criminal contempt Lord Atkinson said I cannot agree that disobedience per se of an order of the court irrespective of the nature of the thing ordered to be done, is a criminal offence. (Scott vs. Scott). Scott v. Scott and Jennison v. Baker (supra) take the view that in Seaward v. Paterson the action amounted to a civil contempt. Cross J. in Phonographic Performance assumed that the act amounted to a criminal contempt. Oswald and Fox in their treatises on contempt classify adding and abetting breach of injunction as a criminal contempt. Miller in his book on Contempt of Court takes the view that a person rendering assistance commits a criminal contempt. (page 248). Borrie and Lowe in their book on The Law of Contempt sum up the controversy in these words : ANOTHER type of contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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