Karnataka High Court
Mariyappa vs V.R. Ramakrishna Rao And Others on 27 November, 1998
Equivalent citations: 1999CRILJ1378, 1999(3)KARLJ22
Bench: R.P. Sethi, Mohamed Anwar
ORDER
1. Aggrieved by the order of the Land Tribunal dated 20th of November, 1986, the complainant herein filed Writ Petition No. 19658 of 1991, which was dismissed by the learned Single Judge vide his order dated 4-9-1996.
2. The case of the complainant was that he had become occupancy tenant in respect of Sy. No. 7 measuring 6 acres 20 guntas of land excluding the kharab, situated at Hosahalli Gollarapalya, Yesh-wanthpura Hobli, Bangalore North Taluk. The Land Tribunal granted him the occupancy rights, which was impugned by the land owners in Writ Petition No. 514 of 1978. After finding that no valid notice had been served upon the owner, this Court quashed the entire order passed in favour of the complainant and remitted the case back for fresh consideration. After affording the parties opportunity to put forth their contentions, the Chairman of the Land Tribunal vide his order dated 9-2-1986 passed an order in favour of the complainant holding that the entire extent of land was to be registered in his favour. The other Members of the Tribunal did not agree with the Chairman and expressed the opinion that as the complainant was cultivating an extent of 3 acres 20 guntas of land, he was entitled to be registered as occupancy tenant to that extent only. The aforesaid order was challenged by the complainant in Writ Petition No. 31922 of 1992. The impugned order was quashed by this Court and the matter was remanded to the Land Tribunal with direction to decide the same afresh after reassessment of the entire oral and documentary evidence on record. Consequently, the Land Tribunal passed an order holding that the complainant was in possession to the extent of 3 acres 20 guntas only, with the result, that his claim with respect to the land measuring 3 acres was rejected. The aforesaid order of the Tribunal was challenged in Writ Petition No. 19658 of 1991, which was dismissed on 4th of September, 1996 as noticed earlier. Aggrieved by the order passed by the learned Single Judge, the complainant filed W.A. No. 8404 of 1996, which was admitted by this Court on 8th of October, 1996. On the I.A. filed for grant of stay, the Court directed that during the pendency of the appeal, the land in dispute shall not be alienated. As according to the complainant the land was alienated by the respondents in violation of the Court directions, he filed the present contempt petition against the respondents.
3. The respondents were charged under Section 12 of the Contempt of Courts Act, 1971 (for short the 'Act') on 4th of November, 1997. They pleaded not guilty and claimed to be tried.
4. To prove the allegations made in the complaint, the complainant examined Sri Chikkanna-CW-1, his son, as a witness.
5. In their statements recorded on 6-3-1998, the respondents submitted that they were innocent and did not want to lead any evidence.
6. We have heard the learned Counsel for the parties and perused the record.
7. The fact of passing of the interim order on 8th of October, 1996 is not denied. It is also admitted that sale deeds were executed on behalf of the respondents on 7-10-1996, which were registered on 8-10-1996. The respondents have contended that they were not aware of the passing of the interim order nor they have intentionally violated any direction. It is submitted that even according to the complainant they were represented in the Court by Smt. Leelavathi, their General Power of Attorney Holder, who did not apprise them of the passing of the interim stay. The sale deed Annexure-F was also admittedly executed by Smt. P.J. Leelavathi on behalf of the respondents, apparently without their knowledge, as none of them is shown to be a witness of the said deed. It is worth noticing that the said Smt. P.J. Leelavathi has not been im-pleaded as a party-respondent in this case.
8. The essential ingredients of civil contempt is wilful disobedience and not any or every disobedience. Before getting a conviction for a person, it has to be established that he had wilfully disobeyed any judgment, decree, direction or order or committed breach of an undertaking given to a Court. If wilfulness is not proved, the Court dealing with the contempt proceedings may refuse to exercise its contempt power to punish the alleged contemnor. The power under the Act cannot be exercised unless there is real prejudice to the parties or there is any attempt to interfere substantially with the due course of justice. Such power cannot be exercised in doubtful cases.
9. A Division Bench of Delhi High Court in Kuldip Rastogi and Another v Vishva Nath Khanna, held that for civil contempt the alleged disobedience has to be shown to be wilful. "Wilful" was held to have the same meaning in the law of contempt as in other branches of law and was synonymous with contumacity. Dealing with a host of authorities on the point, the Court held:
"Although a hundred years have gone by, I do not think anyone has yet succeeded in improving on the lucid and terse exposition of Bramwell, L.J., in Lewis v The Great Western Railway Company, where he said:
"Wilful misconduct" means misconduct which the will is a party, something opposed to accident or negligence;.....
The same idea was expressed by Lord Russell, C.J., in R v Senior, in different words.--
"Willfully" means done deliberately and Bowen, L.J., put up more elaborately in re Young and Harston's Contract, (1855)31 Ch. D. 168, as follows:
The other word which it is sought to define is 'wilful'. Hat is a word of familiar use in every branch of law and although in some branches of the law, it may have a special meaning, it generally, as used in Courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent.
These last words fit the conduct of the Rastogis most aptly. If this be the meaning of 'wilful' in the definition of civil contempt, the Rastogis are definitely guilty.
But, Mr. Tandon argued that the word 'wilful' involved something more than this if not generally, at any rate, in the context of the definition. According to him, the will being a party to the disobedience was not enough; there, further, had to be an element of obstinacy, rebellion or defiance. He relied on Worthington v Ad-lib Club, Limited, and that case certainly supports him. There Stirling, J., was construing the words "wilfully disobeyed' in Order 42, Rule 31 of the Rules of the Supreme Court in England. The rule provides modes of enforcing any judgment or order against a corporation, which, it has 'wilfully disobeyed'. Stirling, J., held that to come within the rule it was necessary to establish a 'contumacious disregard' of an order. He reached that conclusion not of his own volition but because he felt himself by, what he thought, was the ratio of the decision of the Court of Appeal in Fairclough and Sons v Manchestership Canal Company. And, for the same reason he did not follow the judgment of Chitty, J., in A.G. v Walthamstow Urban District Council Walthamstow Sewge Question , and that of Warrington, J., in Stancomb v Trowbridge Urban District Council .
A little research on my own has revealed that in subsequent cases, the judgment of Stirling, J., has been dissented from, and his understanding of the decision of the Court of Appeal in Fairclough and Sons case, Supra, has been held to be wrong. In Steiner Products Limited v Willy Steiner Limited, Stamp, J., said:
I do not think that the Court of Appeal intended to use the word 'contumaciously' as meaning something different from 'wilfully', for to do so would be to put a gloss on the words of the order which they will not, in my judgment, tolerate. Chitty, J., took the view that disobedience which was worse than casual, accidental or unintentional must be regarded as wilful, in A.G. v Walthamstow Urban District Council, Walthamstow Sewage Question and Warrington, J., in Stancomb v Trowbridge Urban District Council, took a similar view.
The reason for the mistake made by Stirling, J., was explained by Megaw, P., in Agreement of the Mileage Conference Group of the Tyre Manufacturers' Conference. It appears that only an 'abbreviated eight line report in decision of the Court of Appeal in Fairclough's case, supra, was cited to Stirling, J. Had he been shown the fuller and better report in (1897)41 Sol J. 255, he would have seen that decision in a different light. Megaw, P., and his colleagues on the Restrictive Practices Court, accepted the view of the law expressed by Warrington, J., in Stancomb v Trowbridge Urban Council. In that case Warrington, J., had said.--
... If a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not 'contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression 'wilfully' in Order XLII, Rule 31 is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclouh v Manchester Ship Canal Company. I think this view, though not of course expressed in the same words, is to all intents and purposes the view expressed in Attorney-General v Walthamstow Urban District Council.
This accords completely with the quotation from Bramwell, L.J., with which I started. It follows that 'wilful' has the same meaning in the law of contempt as in other branches of the law. I can see no reason why in the matter of contempt it should have some special or peculiar meaning, Bowen, L.J., said in there Young and Harston's Contract, (1855)31 Ch. D. 168, that it 'is not a term of art'. And, the ordinary meaning of wilful', as defined in the Concise Oxford Dictionary is that for which compulsion or ignorance or accident cannot be pleaded as an excuse, intentional, deliberate.....
It remains to mention that, more recently, in Knigh v Clifton, the Court of Appeal has itself disapproved the view of Stirling, J., and endorsed that of Megaw, P. Impliedly, if not expressly, the judgment of Stirling, J., has been overruled for Sachs, L.J., agreeing with Russell, L.J., said that 'contumacity need not be proved' in order to establish 'wilfulness' ".
10. In the light of position of law as noticed hereinabove, none of the respondents can be held to have wilfully disobeyed the interim order granted by this Court. The complainant has not explained as to why Smt. P.J. Leelavathi, the General Power of Attorney Holder of the respondents has not been impleaded as party-respondent to these proceedings. The interim order was granted by this Court on 8th of October, 1996, admittedly in presence of said Smt. Leelavathi, the General Power of Attorney Holder of the respondents herein, but in their absence. The offending sale deed was also executed by the said Smt. Leelavathi, apparently without the knowledge or connivance of the respondents. In the absence of cogent evidence, none of the respondents can be held guilty for the offence of contempt of Court, for which they were charged. It is however made clear that the effect of sale deed executed by Smt. Leelavathi on behalf of the respondents, the subject-matter of controversy in these proceedings, shall be brought to the notice of the Court hearing the Writ Appeal No. 8404 of 1996, to enable it to decide it in accordance with law keeping in view the provisions of Section 53 of the Transfer of Property Act.
11. In view of what has been stated above, all the respondents are acquitted of the charges framed against them and the complaint is dismissed.