Calcutta High Court (Appellete Side)
Lakhbinder Singh vs Mahinder Singh & Ors on 27 November, 2014
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CO 1337 of 2005
With
CO 1338 of 2005
Lakhbinder Singh
-vs-
Mahinder Singh & Ors.
For the Petitioner : Sri Moinak Bose;
Debjit Mukherjee;
Sri A. Jain;
Sri S. Mukherjee
For the Opposite Party 1 : S.T. Mina
For the Opposite Party 3(c): Mr. Gopal Ch. Ghosh
Heard on : 18/06/2014 & 21/07/2014
Judgement on : 27/11/2014
Subrata Talukdar, J.: In these applications under Article 227 of the Constitution
of India challenge has been thrown by the petitioner to the order impugned dated
5th March, 2005 passed by the Ld. 7th Additional District Court at Alipore in Civil
Revisional Application No. 97 of 2003 reversing the order dated 17th August,
2002 passed by the Ld. 4th Civil Court (Senior Division) at Alipore in Misc. Case
No. 29 of 1996.
From the record it emerges that the present Opposite Party No.1 (for short
OP1)as plaintiff instituted a suit for partition and accounts against the present
petitioner as defendant before the Ld. 4th Assistant District Court at Alipore being
Title Suit No. 74 of 1981. The suit was instituted in respect of the properties
acquired by their predecessor-in- interest, one Sher Singh.
The suit was decreed ex parte in preliminary from by judgment and decree
dated 12th June, 1995. The final decree of partition was passed ex-parte on 12th
January, 1996.
The petitioner filed an application under Order 9 Rule 13 CPC for setting
aside the ex-parte final decree dated 12th January, 1996 and the same was
registered as Misc. Case No. 30 of 1996. The petitioner also filed an application
under Section 5 of the Limitation Act for condonation of delay in filing such
application.
The said Misc. Case No. 30 of 1996 was allowed on contest by the Ld. 4th
Civil Court (Senior Division) at Alipore after condoning the delay in filing the
application. The said order dated 17th August, 2002 was challenged by the OP1
in Misc. Appeal No. 414 of 2002 which was converted into a Civil Revisional
Application being CR No. 98 of 2003.
By the impugned judgment and order dated 5th March, 2005 the Ld. 7th
Additional District Court at Alipore allowed the same by setting aside the order
dated 17th August, 2002.
Being aggrieved the petitioner has filed the present CO 1337 of 2005 and
CO 1338 of 2005.
Shri ST Mina, Ld. Counsel appearing for the OP1 has, at the threshold,
raised a preliminary objection of maintainability. Shri Mina has submitted that
the present petitioner is an alleged contemnor in connection with contempt
proceedings arising out of the self-same suit properties. According to Shri Mina
the said contempt proceedings have been filed before an Hon'ble Single Bench of
this Court.
Shri Mina has further submitted that the said Hon'ble Single Bench was
pleased to pass an order of status quo dated 5th May, 2005 in respect of the suit
properties. The said order of status quo was directed to continue till disposal of
the Revisional Applications being CO 1337 of 2005 and CO 1338 of 2005. Shri
Mina contends that in spite of having full knowledge of such order and, in
violation of the same, the petitioner has transferred several of the suit properties
lying in the State of Punjab.
It is the further contention of Shri Mina that having regard to the wilful
and contumacious violation of the solemn order dated 5th May, 2005, the OPs
have filed contempt petitions being CPAN 770 of 2014 and CPAN 771 of 2014 and
such contempt petitions are due to be heard.
Relying on a judgment on this Hon'ble Court reported in 78 CWN 144 in
the matter of SS Roy Vs. Damodar Valley Corporation and Ors., Shri Mina
has forcefully argued that it is now judicially settled that until the petitioner is
purged of the contempt or, the contempt proceedings come to a logical
conclusion, the petitioner should not be allowed to proceed with the case in
connection with self-same suit property. Shri Mina asserts that the present
applications being CO 1337 of 2005 and CO1338 of 2005 can only be heard by
this Court after the contempt proceedings have reached a logical conclusion.
In support of his argument on maintainability Shri Mina relies on Paras 9
and 10 of 78 CWN 144 (supra) which read as follows:-
"9) The point raised is undoubtedly of an old vintage, coming
down the corridor of time and going back many centuries in our
law. It is undoubtedly true that at one stage there was some cloud
raised over the point at issue, but by and large the same has been
removed by the principles laid down by the various authorities and
the imprimatur of judicial decisions. It is pertinent therefore to refer
to the backdrop against which this principle arise. That a party in
contempt will not be heard was never a rule of the common law, but
as was observed by Lord Justice Denning, "a rule of the canon law,
which was adopted by the ecclesiastical courts and the chancery
courts'. The history of the rule in Chancery, as it appears from
Beams' Orders in Chancery pp. 35, shows that it originated in the
78th Ordinance of Lord Becon of 1618. It laid down that
"they that are in comtempt are not to be here, neither in that suit
nor any other, except the court of special grace suspend the
contempt.".
It also appears from Gilbert on Forum Romanum 102 that Lord
Chief Baron Gilbert laid it down as a general rule that
"the contemnor, who is in contempt, is never to be heard by
motion or otherwise till he has cleared him contempt and paid the
costs'.
The Ordinance of Lord Bacon though used for enforcing orders in
Chancery was never applied unless the contempt had been
established by the issue of a writ attachment or an order for
committal. It is only then that the party became a party in contempt
and the Court would not hear him. The said ordinance however
and the limitations referred to above were found to be capable of
working great injunstice and as was observed by Lord Justice
Denning in the case of Hadkinson v. Hadkinson
"in the course of practice, it came to be much restricted in scope.
It was confined to cases where a party in contempt i.e. a party
against whom a writ of attachment had been issued or an order of
committal had been made, came forward voluntarily and asked for
an indulgence in the same suit. It was no indulgence for a plaintiff
to bring his cause to a hearing or for a defendant to defend himself.
Even if he was in contempt therefore, he was.......allowed to be
heard unless an order had been made staying the proceedings."
It is pertinent in this context to refer to deniel's "Chancery
Practice" (7th Edn., Vol. 1) pp. 725 that
"a party in contempt for non-obedience to an order in one cause
will not be thereby prevented from making an application to the
Court in another cause relating to a distinct matter, although the
party to such other cause may be the same."
A reference next may be made to the case of Taylor v. Taylor
reported in (1849) decided by MacNaughten and Gordon 397
(English Reports Vol. XLI Chancery pp. 1318) it was observed that
"the circumstance of the plaintiff being out of the jurisdiction and
in contempt for non compliance with the decree made, did not
prevent his filing the bill in question".
The observations of Lord Cottenham, L.C. were approved of
again and again in a series of cases. It has been stated in
Halsbury's "Laws of England" (3rd Edn.) Vol. 8, Section 4 Paragraph
73 that
"probably the true rule is that the party in contempt will not be
heard only on those occasions when his contempt impades the
course of justice and there is no other effective way of enforcing the
obedience."
Lord Justice Denning also observed ultimately, after discussing
the history of the principle in the case of Hadkinson v. Hadkinson
already referred to above that
"applying this principle. I am of opinion that the fact that a
party to a cause has disobeyed an order of the Court is not of itself
a bar to his being heard but if his disobedience is such that so long
as it continues, it impedes the course of justice for the cause, by
making it more difficult for the court to ascertain the truth or to
enforce the orders which it may make, then the court may in its
discretion refuse to hear him until the impediment is removed or
good reason is shown why it should not be removed."
I respectfully agree with the said view and hold that the
proposition made by Mrs. Bhattacharyya stands qualified as above.
10) It is quite true that contempt of court is not an ordinary proceeding and
the question involved is a serious one. It is true again, as was
observed in the case of (2) Dhrubadeo Tewari & Anr. v. Thakilal
Ganguly & Anr. reported in 75 CWN 856 that
"that halo of solemnity surrounding the courts of justice since
the dawn of civilisation should not be allowed to be disturbed by a
blatant interference with its orders, defiling thereby the sacred
temples where justice is dispensed by the high priests, the judges".
But the proposition propounded by Mrs. Bhattacharyya is too
wide and on ultimate analysis I hold that the same is not in any
way an absolute proposition of law but only a qualified one, being
subject to the various exceptions referred to above. Apart from the
point of law, the basis of facts canot also be overlooked. Only an
application has been filed for contempt before the learned District
Judge, Alipore Dist. 24-Paras, being Judicial Misc. Case No. 36 of
1973 and as yet, as the learned District Judge himself, found, an
enquiry is yet to be made on the merits of the said application as to
whether on the establlishment of a prima facie case a reference
would be made to the High Court recommending appropriate steps.
The contempt therefore has not been prima facie established by the
issue of a writ of attachment or an order for committal. The prayer
for stay made on behalf of the Plaintiff-Petitioner therefore is
premature and the first dimension of Mrs. Bhattacharyya's
contention accordingly fails".
Shri Gopal Ghosh, Ld. Counsel appearing for the OP3 (c) has also
supported the stand taken by Shri Mina challenging the maintainability of the
present applications. Shri Ghosh has submitted that the alleged sale of the suit
properties in violation of the solemn order dated 5th May, 2005 took place
between the years 2012 to 2013. Since the knowledge of such sale which took
place in the State of Punjab reached the present Opposite Parties after a period of
time, the contempt applications could be filed only in the year 2014. Shri Ghosh
further submits that the contempt applications were filed after the sale deeds
were collected in respect of the suit properties and the last sale occurred in the
year 2013.
Shri Ghosh also supports the legal position elucidated in 78 CWN 144
(supra) on the principle that till the present petitioner purges himself of the
alleged contempt or the contempt proceedings reach a logical conclusion, the
present applications cannot be proceeded with.
Shri Ghosh relies upon a decision of the Hon'ble Apex Court reported in
(2007) 8 SCC 449 in the matter of Prestige Lights Ltd. Vs. State Bank of
India. Relying on Paras 21 and 26 of the said judgment Shri Ghosh has argued
that the law is settled that the Court must take notice from the facts of each case
whether a party alleged to be in violation of an interim order has the right to be
heard in proceedings arising out of the self-same subject matter prior to purging
himself of the contempt. However, it is not a rule of thumb that in all
circumstances the Court shall refuse to hear such party.
Paras 24, 25, 26 27 & 28 of the judgment in Prestige Lights Limited
(supra) read as follows:-
"24). An order passed by a competent court-interim or final-has to
be obeyed without any reservation. If such order is disobeyed or
not complied with, the court may refuse the party violating such
order to hear him on merits. We are not unmindful of the situation
that refusal to hear a party to the proceeding on merits is a "drastic
step" and such a serious penalty should not be imposed on him
except in grave and extraordinary situations, but sometimes such
an action is needed in the larger interest of justice when a party
obtaining interim relief intentionally and deliberately flouts such
order by not abiding by the terms and conditions on which a relief
is granted by the court in his favour.
25) In the leading case of Hadkinson v. Hadkinson the custody of a child
was given to the mother by an interim order of the Court, but she was
directed not to remove the child out of jurisdiction of the Court without
the prior permission of the Court. In spite of the order, the mother
removed the child to Australia without prior permission of the Court. On
a summons by father, the Court directed the mother to return the child
within the jurisdiction of the Court. Meanwhile, an appeal was filed by
the mother against that order. A preliminary objection was raised by
the father that as the appellant was in contempt, she was not entitled to
be heard on merits. Upholding the contention and speaking for the
majority, Romer, L.J. obsrved: (All ER p. 572 C)
"...I am clearly of the opiniion that the mother was not entitled, in
view of her continuing contempt of court, to prosecute the present
appeal and that she will not be entitled to be heard in support of it
until she has taken the first and essential step towards purging her
contempt of returning the child within the jurisdiction."
In a concurring judgment, Denning, L.J. also stated: (All ER p. 575
C-D)
"The present case is a good example of a case where the
disobedience of the party impedes the course of justice. So long as
this boy remains in Australia, it is impossible for this Court to
enforce its orders in respect of him. No good reason is shown why
he should not be returned to this country so as to be within the
jurisdiction of this Court. He should be returned before counsel is
heard on the merits of this case, so that, whatever order is made,
this Court will be able to enforce it. I am prepared to accept the
view that in the first instance the mother acted in ignorance of the
order, but nevertheless, once she came to know of it, she ought to
have put the matter right by bringing the boy back. Until the boy is
returned, we must decline to hear her appeal."
26) That, however, does not mean that in each and every case in which a
party has violated an interim order has no right to be heard at all. Nor
will the court refuse to hear him in all circumstances. The normal rule is
that an application by a party will not be entertained until he has
purged himself of the contempt. There are, however, certain exceptions
to this rule. One of such exceptions is that the party may appeal with a
view to setting aside the order on which his alleged contempt is
founded. A person against whom contempt is alleged must be heard in
support of the submission that having regard to the meaning and
intendment of the order which he is said to have disobeyed, his actions
did not constitute a breach of it.
27) In Gordon v. Gordon, Cozens-hardy, L.J. put the principle siccinctly in
the following words: (All ER p. 706 E-F)
"....I desire to limit my judgment to a case in which the [party in
contempt is saying] that the order complained of is outside the
jurisdictiion of the court, as distinguished from the case of an order
which, although it is within the jurisdiction of the court, ought not, it
is said, to have been made."
28). Lord Denning made the following pertinent observations in
Hadkinson: (All ER pp. 574 H-575 A)
"It is a strong thing for a court to refuse to hear a party to a
cause and it is only to be justified by grave considerations of public
policy. It is a step which a court will only take when the contempt
itself impedes the couse of justice and there is no other effective
means of securing his compliance."
Shri Ghosh asserts that in the facts of the present case the violation
alleged of the solemn order of the Hon'ble Single Bench is serious. Upon
collection of the sale deeds the present petitioner has come to acquire knowledge
of the fact that between the years 2010 and 2013 i.e. in the span of 3 years, the
petitioner has sold substantial part of the suit properties in the State of Punjab
although restrained from doing so by the solemn order of the Hon'ble Single
Bench dated 5th May, 2005. Therefore, according to Shri Ghosh, the facts of the
present case make it fit to attract the principle enunciated in 78 CWN 144
(supra).
Per contra, Shri Mainak Bose, Ld. Counsel appearing for the petitioner has
argued that the contempt as alleged is yet to be admitted. Shri Bose has
emphatically pointed out that the present Civil Revisional Applications being CO
1337 and 1338 are pending since the year 2005. The order of the Hon'ble Single
Bench was also passed in the 2005. The present contempt applications have
been filed after a delay of 7 years in the year 2014. Therefore, Shri Bose points
out that this is not a fit case where after a lapse of 7 years the present petitioner
can be restrained from proceeding with the hearing of the applications pending
the disposal of the contempt proceedings against him.
In support of his argument Shri Bose relies upon the judgment reported in
(1995) 1 CHN 66 in the matter of State Trading Corporation & Ors. Vs. Anjan
Banerjee & Ors. Shri Bose specifically draws the attention of this Court to
Paras 2, 5 and 6 of (1995) 1 CHN 66 (supra) which read as follows:-
"2) The decision of this Court in the case of S. S. Roy Vs. Damodar
Valley Corporation (78 CWN 144) also recorded that the general rule
of denial of opportunity of hearing to a party in contempt, cannot be
termed to be in any way an absolute proposition of law but only
qualified one being subject to various exceptions.
5) The Allahabad High Court in the case of Dr. Madan Gupta vs. The agra
University and Others, (AIR 1974, Allahabad 39) did also in the similar vein laid
down that unless the disobedience of a party impedes the course of justice and
making it difficult for the Court to ascertain the truth, in would not be proper
exercise of judicial discretion to refuse the party in contempt in hearing. In
Paragraph 6 of the Report, the Court observed:
"6) Under the Contempt of Courts Act, there is no provision for
striking off the defence of a party in contempt, There is, however, a
well established principle that a party in contempt should not be
heard in the same cause until that party has purged the contempt.
This rule has been followed by Courts in England as well as in
India, but the rule is not an absolute one, The striking out of
defence a denial of hearing to a party is a serious matter which
entails serious consequqnces to a litigant, The Courts have,
therefore, applied this rule rarely against a party in contempt. The
extreme penalty of striking out of defence or denial of hearing is
applied only in those cases in which a party is found in contempt
for disobeying the orders of the Court as a result of which the
course of justice is impeded. The Court may, in its discretion,
refuse to allow the party in contempt to take active proceedings in
the same suit or a cause until the impediment caused by the
contempt act is removed. This rule is based on the sound principle
that no party to a cause or proceeding should be allowed to flout the
orders of the Court or impede the course of justice in order to take
advantage of his misdeeds before the Court of law. In England,
this rule was applied for the first time by the ecclesiastical Courts.
Subsequently this rule was made applicable by other Courts also".
The further observations of the Court in Paragraph 8 of the
Report seem to be also apposite and the same is set out
hereinbelow:
"8. In our country we have followed the English practice and the
law in this respect has developed on the principles enunciated by
English Courts. In Hewit vs. M' Cartney, (1807) 13 Ves 560, Lord
Eldon did not allow a defendant to appear and defend the cause
against him, as the defendant was held guilty of contempt of Court.
In Seward Vs. Paterson (1897) 1 Ch. 545, it was pointed out that a
distinction must be drawn between a process to assist a party
against the opponent who defies the orders of the Court and a
process to maintain the dignity of the Court. In Gordan vs. Gordan,
(1904) P. 163, it was held that a party was not generally entitled to
take a proceeding in a case for his own benefit but these are
exceptions to the rule although they are few in number. The case of
Chuck vs. Cremer, (1846) L. Co.op.t. Cott, 205 (247) and the case of
King vs. Brbant, (1838) My & Cr. 191 were cited. In Morrison vs.
Morrison, (1845) 4 Hare 590, it was held that a defendant in
contempt for non-payment of costs was entitled to file exceptions to
a report but that was merely a step taken in his own defence. The
view taken in the above earlier English cases makes it clear that
the principle adopted was that the Court would not hear a party in
contempt coming himself to the Court to take advantage of the
proceedings, yet such party was entitled to appear and resist any
proceeding against him. It has, however, been stressed by the
English Judges that it would be most unjust extension of the rule
against the party in contempt to take away an estate without giving
him any opportunity of hearing.".
6) The law, therefore, seems to be well-settled to the effect that
denial of an opportunity of hearing to a party in contempt cannot be
had unless the conduct of the party in contempt impedes the course
of justice."
Drawing inspiration from the judgment in (1995) 1 CHN 66 (supra) Shri
Bose has argued that it cannot be a general rule of law that in every case a party
to a contempt should be denied the protection of a Court.
Shri Bose also distinguishes the judgment in Prestige Lights Ltd. Case
(supra) on the ground that the said judgment is on the facts of that case which
pertain to the Securitisation Act of 2002 and therefore distinguishable.
According to Shri Bose the present applications are pending since the year
2005 and any denial of hearing to the petitioner at this stage shall amount to a
miscarriage of justice.
Heard the parties. Considered the materials on record.
The attention of this Court has been drawn by Sri Ghosh, Ld. Cousel for
the OP3 (c) to the violation of the solemn order dated 5th May, 2005 passed in CO
1338 of 2005. In the contempt application filed by Sri Ghosh's Client's arraying
the present petitoner as the alleged contemnor being CPAN 770 of 2014 it has
been, inter alia pleaded at paragraph 2 as follows:-
"2) That despite the aforesaid order of status quo the alleged
contemnor with the help of his men and agent especially his son-in-
law Surjit Singh who is the constituted Power of attorney holder
already transferred, alienated and encumbered most of the
properties included in the schedule of the decree which is covered
by the order of status quo dated May 05, 2005. Such transfers,
mostly in respect of properties lying in Punjab, were effected vide
sever al deeds. Since the properties transferred are mostly situated
in Punjab, it was extremely difficult for your petitioner to find out
the details of such transfers. After extensive efforts, your petitioner
could get hold of certified copies of only five of such transfer deeds
and some extract of the relevant records-of-rights which records
details of such transfers.
Your petitioner has also come to know from people of the respective
localities of the properties invovled, that the alleged
contemnor/respondent has also entered into agreements for sale
with other suit properties than those transferred in favour of third parties.
Photocopies of the certified copies of the relevant deeds of conveyance and the true copy of the records-of-rights containing the names of transferees, as translated in English from Punjabi are annexed herewith and marked as Annexure-"B"."
Similar pleadings have been advanced in a second contempt application being CPAN 771 of 2014 arising out of CO 1337 of 2005. It has been also contended that the order dated 5th May, 2005 has been passed in presence of both the parties.
In the light of the abovenoted pleadings it is apparent that the present opposite parties have been able to make out a case of breach of an order which touches the properties-in-suit. While no doubt admitting the exceptions to the rule that a right of hearing to a party in contempt is not an inviolable bar till such party purges himself of the contempt as explained in both 1995 (1) CHN 66 (supra) and 2007 (8) SCC 449 (supra), this Court at the same time cannot be oblivious to the depth of the contempt alleged to have been committed in the facts of this case.
It is apparent to this Court that the contempt alleged touches the core of the disputes between the parties and by allegedly seeking to transfer the properties-in-suit the present petitioner has rendered himself liable to be purged of the contempt or, to wait for the contempt to arrive at a logical conclusion, before he is heard in his present cause.
After giving anxious consideration this Court is of the view that the imprimatur of the decision reported in 78 CWN 144 (supra) and Lord Denning's observation that the Court may in its discretion refuse to hear a party until the impediment to the cause advanced is removed, has left its deep impression on the facts of this case.
In the light of the above observations this Court upholds the objection on maintainability urged by the oppositie parties. CO 1337 of 2005 with CO 1338 of 2005 are adjourned sine die pending final adjudication of CPAN 770 of 2014 and CPAN 771 of 2014. No further orders are called for at this stage in CO 1337 of 2005 and CO 1338 of 2005.
There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)