Desai, J.:— This is an application moved by Jagannath Prasad for committing four persons, Ram Chandra, opposite party (1), Brahmamnd Sharma opposite party (2), Brij Mohon Lal, opposite party and Mithan Lal, opposite party (4), for contempt of the court of the Civil Judge, Aligarh.

Jagannath Prasad, Brij Mohon Lal and Mithan Lal are real brothers but separate from one another. Ram Chandra is the son of Brij Mohan Lal; it is alleged by Jagannath Prasad that they are joint with each other but the allegation is denied by them. A certain dispute which had arisen between Jagannath Prasad and Brij Mohan Lal was referred to the arbitration of Mithan Lal, another person with whom we are not concerned, and Jwala Prasad, Jwala Prasad being the umpire. The nature of the dispute referred to arbitration is in controversy; according to Jagannath Prasad it was in respect of rent of a godown which had been let out by him to Brij Mohan Lal, while according to Brij Mohan Lal it was in respect of certain ornaments worth Rs. 9,000 which had been kept by him in deposit with Jagannath Prasad. Before the arbitrators started proceedings, Jagannath Prasad gave a notice withdrawing his consent to the reference. But two of the arbitrators gave an award, treating the dispute referred to them as being one in respect of the price of the ornaments. Then Brij Mohan Lal instituted a suit in the court of the Civil judge, Aligarh, for the filing of the award and it is pending. Jagannath Prasad contested the suit by filing a written statement on April 28, 1948. In paragraph 11 of it he wrote:

“The plaintiff is under the influence of his youngest son Ram Chand alias Ram Chandi who is a very chalak, awara and qimarbaz person and who is jealous of the contesting defendant…. So the plaintiff, with a view to exert undue pressure on, and blackmail, the defendant, has concocted this false and amazing claim of depositing ornaments with the defendant.”

Ram Chand was not a party to the suit. On May 28, 1948, Ram Chand gave a written notice to Jagannath Prasad quoting the above abusive words and seeking relief in the following words:

“By describing me as chalak, awara and qimarbaz you have seriously disgraced me. Thereby I have been very much defamed, and I have suffered mental pain. You have, therefore, committed an offence under section 500, Indian Penal Code. Take notice that if you fail to withdraw these words, and do not tender written apology for it, and fail to pay Rs. 500 as damages, within three days of the receipt of this notice proceedings will be taken against you in the Civil and. Criminal Courts. You are hereby being informed accordingly.”

Jagannath Prasad did not comply with the notice and Ram Chand, through his counsel Shri Brahmanand, opposite party (2), filed a complaint under section 500, Indian Penal Code, in the court of the City Magistrate, Aligarh. That complaint is still pending.

Jagannath Prasad wants Ram Chand, Shri Brahmanand, Brij Mohan Lal and Mithan Lal to be punished for contempt of the court of the Civil Judge, Aligarh, on the ground that Ram Chandra gave the notice and filed the criminal case against Jagannath Prasad in order to pervert the course of justice. It is alleged that Shri Brahmanand had previous knowledge of the fact that proceedings regarding the ornaments were pending in the court of the Civil Judge and a plea of the status of the opposite party no. 1 has been raised in the written statement as he is the lawyer of opposite party no. 3 in that suit. It was alleged against Mithan Lal that, he is helping the other opposite parties in the prosecution of the complaint. There is also a general allegation that all the opposite parties have attempted to put undue pressure upon Jagannath Prasad with a view to his withdrawing the plea contained in paragraph 11 of his written statement and that opposite party no. 1 is being directly and indirectly assisted by the other opposite parties in treating the court with contempt.

Ram Chandra pleaded that the allegations made in the written statement against him were absolutely irrelevant and scandalous, that he never exercised any undue pressure upon Jagannath Prasad, that he only wanted him, through his notice, to withdraw the scandalous and offending words and not the whole plea, that Shri Brahmanand was not a counsel for Brij Mohan Lal in the court of the Civil Judge, Aligarh, that the institution of the complaint would not in any way prejudice the trial of the suit, that the opposite parties 3 and 4 have nothing to do with the prosecution of the criminal complaint and that his object behind the institution of the criminal case was simply to vindicate his honour and not to hamper the course of justice in the court of the Civil Judge. Shri Brahmanand denied that he appeared for Brij Mohan Lal in the civil suit and that he exerted any undue pressure upon Jagannath Prasad, and contended that he bona fide advised Ram Chand to file the criminal complaint. Brij Mohan Lal also made a similar defence and said that he was not aware of the contents of the notice given by Ram Chand, that he does not know what information Shri Brahmanand had about the civil suit, that he did not apply to the Civil Judge for expunction of the scandalous words because they were used not against him but against a stranger to the suit, and that he has nothing to do with the prosecution of the criminal case which is done solely by Ram Chandra Mithan Lal also denied the allegations made against him and stated that he has not assisted Ram Chandra in the prosecution of the criminal case and has not taken any interest in it, that he was not examined even as a witness in that case and that he never attempted to exert any pressure on Jagannath Prasad.

It cannot be disputed that the words used by Jagannath Prasad in respect of Ram Chand in his written statement were prima facie grossly defamatory of Ram Chandra. He attacked his character in no uncertain terms by branding him as awara, chalak and qimarbaz. The suit was not instituted by him and he was not even a party to it. It was enough for the purposes of Jagannath Prasad simply to allege in his written statement that the suit was false; it was quite irrevelant to state who had instigated the filing of the suit or under whose influence it was filed and still more irrelevant to attack the character of the supposed instigator. If he succeeded in proving that the suit was false, he would win whether it was instigated by another person or not and whether the character of the instigator, if any, was good or bad. The general rule is that evidence of character is irrelevant in a civil suit. The learned counsel for Jagannath Prasad pleaded that he referred to the character of the instigator of the suit because it would be relevant in determining the damages to be paid to him under section 35A of the Code of Civil Procedure in case the suit, was held to be false or vexatious. There is no substance in this plea. Probably ‘he had in mind the provisions of section 55 of the Indian Evidence Act, but it is inapplicable in the present case because Jagannath Prasad did not claim, and could’ not have claimed, any damages from Ram Chandra. If he succeeded in proving that the suit instituted by Brij Mohan Lal was false or vexatious, he could get compensation from Brij Mohan Lal and not from Ram Chandra even if he had instigated the filing of the suit Surely Brij Mohan Lal could not be made to pay heavier compensation on the ground that the character of his instigator was bad. Moreover, there is nothing in the written statement to indicate that the character of Ram Chandra was attacked in order to claim deterrent damages or compensation from Brij Mohan Lal. Another justification given for attacking the character of Ram Chandra was that Jagannath Prasad would have to prove misconduct on the part of the arbitrators. I do not see any connection between Ram Chandra's character and the misconduct that was sought to be established against the arbitrators. Moreover, the written statement does not show that there was any such connection and that the character of Ram Chandra was attacked in order to show misconduct on the arbitrators' part.

Even if it is necessary for a defendant to show that the suit was instigated by another person, it was nor necessary in the present case because the suit was to enforce an award, the existence of which is not disputed. Ram Chandra, however bad his character might be, could not have any concern with the institution of the suit and his character would be wholly irrelevant. All that was said in the written statement is that he had fabricated the story about the ornaments which was taken before the arbitrators. The question before the Civil Judge was whether the arbitrators misconducted themselves or not, and in deciding this question it could not possibly go into the character of Ram Chandra or the merits of the dispute.

Then it was said on behalf of Jagannath Prasad that he made the allegation against Ram Chandra's character in order to show that he did not possess the status which would be consistent with his and Brij Mohan Lal's claim that they owned ornaments worth Rs. 9,000. This was a belated attempt to explain away the scandalous allegations made against Ram Chandra. If one reads the written statement one would never think that Ram Chandra's character was attacked simply to show that he and Brij Mohan Lal did not possess sufficient status.

We do not dispute for a moment the legal proposition that an allegation of fact, however scandalous it may be, cannot be expunged if it is relevant or pertinent. The primary duty of deciding whether the allegations in the present case were relevant or nor was of the Civil Judge. Brij Mohan Lal did not make any attempt to have them expunged from the written statement. Ram Chandra also did not make any application to the learned Civil Judge for their expunction. We consider that though he was a stranger to the suit, he could obtain leave of the learned Civil Judge to make an application for the expunction. He could not claim the expunction as of course, but he could be permitted to make an application for the expunction. We rely for this upon the observations of the Master of the Rolls in Williams v. Douglas(1). In that case a stranger to the action, without leave, applied as of course for expunction of certain impertinent and scandalous remarks made against him in a pleading. The Master of the Rolls observed, at page 86:

“A person not a party to the record cannot adopt this proceeding without special leave; he requires the assistance of a special order, to enable him to prosecute the reference with effect, and to compel the party whom he accuses of scandal to prove the materiality of the allegations so characterised.”

Our power to decide whether the allegations made by jagannath Prasad were relevant or not was seriously questioned by the learned counsel for Jagannath Prasad. It is conceded that the question of their relevancy is not directly before us. But we have to see whether the action that Ram Chandra has taken to defend himself against them was justified or not, and we cannot decide this without going into the question of their relevancy. The motion for contempt is based on the ground that the opposite parties have done an act which would interfere, or which has a tendency to interfere, with the fair trial of the suit. If the act complained of cannot possibly have the effect of interference with the fair trial of the suit, there is no contempt. And in determining whether the act has the tendency or not, we have to see whether the expunction under threat of prosecution, of the scandalous allegations would interfere with the fair trial of the suit or not. In other words, we must see whether the allegations were so relevant that if they were expunged under compulsion, Jagannath Prasad would be prejudiced in any degree in his defence. If the allegations were absolutely irrelevant to the defence, it would follow that he would not be at all prejudiced in his defence and that the act complained of by him did not have the tendency to interfere with the administration of justice. We must also consider that, though we may not be directly interested in seeing whether the allegations were relevant or not, Ram Chandra was directly interested in the matter. He was at liberty to treat the allegations as irrelevant and accept the risk of being committed for contempt of court if they turned out to be relevant. We cannot punish him for contempt unless we hold that the allegations which he, under threat, wanted Jagannath Prasad to expunge were pertinent to the issues. We have got before us the issues and find that the allegations were not at all pertinent to them and we have already said enough on this matter. We, therefore, repel the plea that we are precluded from going into the question of the relevancy of the allegations.

The contempt alleged against the opposite parties comes under the head of:

“prejudicing mankind in favour of or against a party before the cause is heard”. “Because injurious misrepresentations concerning parties may cause them to discontinue the action, or to compromise, or may deter other persons with good causes of action from coming to the court. Any act which is calculated to intefere with the due course of justice is a contempt of court” (see Halsbury's Laws of England, Vol. 7, II Edition, para. 8).

Here two acts have been complained of, one of giving a notice to Jagannath Prasad to withdraw the scandalous words and the other of instituting the criminal case against him.

As regards the first act, we note that Ram Chandra simply asked Jagannath Prasad to withdraw the scandalous words, awara, chalak and qimarbaz, and not to give up the rest of the plea in paragraph 11 of the written statement. He did not want Jagannath Prasad to give up the plea that the suit had been instituted at the instigation of Ram Chandra. There were many allegations made against Brij Mohan Lal and other allegations made against Ram Chandra but Ram Chandra did not want them to be given up. Since the offending words, to which he took exception, were wholly irrelevant, the expunction of those words from the pleading would not at all affect the defence of Jagannath Prasad and would not at all interfere with the course of justice. It seems to us that the demand of Ram Chandra was very moderate and made with considerable circumspect. If he had asked Jagannath Prasad to give up the plea contained in paragraph 11 of the written statement, it could have been said that he did an act likely to pervert the course of justice. Threatening a suitor with bad consequences, if he proceeded with the suit, is undoubtedly contempt of court; in re Mulock. Mulock threatened to disgrace a plaintiff by publishing certain matters in respect of her if she did not withdraw her suit and he was committed for contempt. The notice given by Ram Chandra cannot at all be compared with the letter that Rajendra Singh… v. Uma Prasad….(2), which has been relied upon by Jagannath Prasad's counsel, was a similar case but with one very material and important difference. A mortgage suit was brought by the mortgagee's son against the mortgagor's son and it was defended by the latter who pleaded—

“that some unscrupulous money-lenders taking advantage of the dissolute habits of the defendant's father began running him into indebtedness and the said defendant believes that the plaintiff's father also colluded with some of these money-lenders with a similar object.”

After closing his evidence, the plaintiff served a notice upon the defendant drawing his attention to the above words and threatening to take action against him if he did not withdraw, them. The plaintiff was held guilty of contempt. The plea taken by the defendant was held to be a plea which might be legitimate. It was a “plea which might, if established, prove fatal to the suit” in the words of Sulaiman (as he was then), C.J The plaintiff had demanded the withdrawal of the whole plea and not merely of the scandalous words which could be expunged without affecting the materiality of the plea. Here Ram Chandra did not want the whole plea to be given up and the plea taken by Jagannath Prasad would not have suffered at all if the offending words, awara, chalak and qimarbaz had been expunged by him.

Another case relied upon was Baldeo Sahai v. Shiva Datt Sharma. There a defendant to a suit for possession by R alleged in his written statement that it had been brought at the instance of R's brother B and R's son and Pairokar who was described as awara. R made an application to the court for expunction of the word “awara” and for apology from the defendant and threatened to proceed against him if he failed. The court altered the word awara to awaragard. Then R gave a notice to the defendant that the use of the word awara was without justification and defamatory and that if he was not paid damages for defamation he would take action against him in law. The defendant considered the notice and the application as amounting to contempt of court and macle a motion accordingly. The motion was rejected. Varma, J. compared the facts of that case with those of Rajendra Singh, and observed:

“Such a plea, if established, is fatal to the case of the alienee, and is thus a material plea. The plea taken in paragraph 9 of the written statement in Rajendra Singh v. Uma Prasad was a plea of that nature. But a statement that the plaintiff's suit—which according to the defendant is false—has been instigated by the plaintiff's son, and the use of abusive epithets about the plaintiff's, do not in my opinion constitute a “plea” recognised in law.”

Therefore when Ram Chandra simply asked the offending words to be expunged from the plea, he did not at all interfere with the due course of justice and did not commit any contempt of court. In the case of Williams(3) the Master of the Rolls observed at page 85:

“Effectual justice to a person aggrieved by such scandal cannot be obtained by means of an action, or any succession of actions. Whilst the record-remains unaltered there is scandal, a perpetual reproach and shame, for which no just damages can be assessed, no just compensation ever given, and which can only be removed by the authority of this Court.”

We are satisfied that when Ram Chandra asked Jagannath Prasad to delete the defamatory and immaterial words from his plea, he did nothing wrong.

Now we come to the other action, namely, that of filing the complaint. There are several authorities-laying down the proposition that every man, who considers himself aggrieved by an act of another, is at liberty to seek his remedy in a court of law. It was conceded by the learned counsel for Jagannath Prasad that the mere filing of a complaint does not amount to contempt of court. But he contended that in the present case it was preceded by a threat conveyed through the notice and that the filing of the complaint in execution of the threat amounted to contempt. We do not think that the mere fact that Ram Chandra gave an opportunity to Jagannath Prasad through the notice of avoiding prosecution for libel by deleting the offending words, added anything material to the act of filing the complaint. We have said that he was justified in giving the notice that he did, and, if so his act of filing the complaint would still remain “merely” an act of filing a complaint. In Hrishi Kesh Sanyal v. A.P Bagchi, an objector in proceedings for appointment of a guardian made some allegations against the applicant. Thereupon the applicant moved an application before the court for drawing up proceedings under section 476 of the Code of Criminal Procedure against the objector and two days later filed a complaint against the objector in a criminal court under section 500, Indian Penal Code. The objector complained of these acts on the ground that they amounted to contempt of court. His complaint was dismissed because the applicant was held to be within his right in filing the complaint under section 500, Indian Penal Code. While discussing the case of Rajendra Singh, Mr. Justice Collister discussed what would have been the position if the filing of the criminal complaint had been preceded by threat. The learned Judge observed:

“In the case now before us there was no such threat, there was no intimidation outside the court with a view to compel the applicant to take certain steps in connection with the gurdianship proceedings…. If a person has or thinks he has a cause of action or a ground of complaint, he is in ordinary circumstances at liberty to have recourse to the courts…. Whatever the opposite party's real motive may have been, there was nothing in his action to suggest to the applicant that, if he withdrew any of his pleas regarding the opposite party's character, the latter would drop the complaint which he had preferred under section 500, Indian Penal Code, and so it cannot be said that pressure was being exerted upon the applicant in respect to the guardianship proceedings. Had the opposite party first tried to intimidate the applicant by holding out a threat of prosecution, thereby bringing pressure to bear upon him, the matter would have had a very different aspect.”.

The above observations may suggest that the filing of a criminal complaint preceded by a notice threatening to file it, would amount to contempt of court. But the learned Judge was not called upon to decide that question in the case. He did not discuss what kind of threat would be necessary to make the filing of a criminal complaint a contempt of court. We are clearly of the opinion that if the notice was lawful and in protection of the natural right of the notice-giver and it could not possibly have the effect of interfering with the true course of justice, the giving of the notice would not make the filing of the criminal complaint any more a contempt of court than it would have been if there were no notice. The complaint filed by Ram Chandra does not at all refer to the notice given by him it does not indicate that if Jagannath Prasad deleted the offending words, the complaint would be withdrawn. Therefore it cannot be said that Ram Chandra filed the criminal complaint in order to force Jagannath Prasad to give up his defence or even to delete the offending words. The simple object behind the filing of the complaint was to vindicate the honour. Though we have stated that the words used by. Jagannath Prasad were defamatory, we do not say, and are not called upon to say in these proceedings, that Jagannath Prasad became guilty of libel. Whether he is guilty of libel or not depends upon many things and it would be considered by the criminal court where his prosecution is pending. If he committed the offence of libel, he committed it when he used the defamatory words and be would remain guilty even if he deleted them now it cannot, therefore, be said that the motive behind the filing of the complaint was to have the words deleted. We are not at all impressed with the argument that on account of the pendency of the criminal complaint witnesses would not be forthcoming to support the allegations made by Jagannath Prasad. We consider that the allegations made by him being irrelevant, no evidence could be led to prove them. Moreover, witnesses have some privilege and they need not be afraid of stating the truth in court. In any case, they should not be more afraid on account of the fact that the case under section 500, Indian Penal Code, is pending than they would have been if it were not pending. In other words, the pendency of the case by itself should not act as a deterrent to them. Very recently in Deep Chand Jain v. Raizada Sumer Chand Jain Mr. Justice Dayal observed that “the mere filing of a complaint does not amount to interference with the true course of justice”. In that case, in reply to a suit filed by an advocate for the recovery of his fees from his client, the defendant stated that he had engaged him on account of his old age. The advocate thereupon filed a criminal complaint against him under sections 500, 503 and 504, Indian Penal Code. The defendant applied for taking proceedings under the Contempt of Courts Act against him and it was held by Mr. Justice Dayal and Mr. Justice Wanchoo (Mr. Justice Mushtaq Ahmad dissenting), that no contempt was committed by the Advocate. We, therefore, decide that when Jagannath Prasad himself did something unconnected with the suit proceeding before the Civil Judge, Aligarh, even though professing to do it in connection with that suit, and Ram Chandra, who felt aggrieved by the doing of that act, asked him to undo it and on his failure to undo it sought his remedy in the criminal court in order to vindicate his honour, he committed no contempt of the court of the Civil Judge, Aligarh.

There is no evidence that the other opposite parties had anything to do with the acts of Ram Chandra which have been complained of by Jagannath Prasad. Shri Brahmanand Sharma was admittedly his counsel in the criminal court and he admittedly knew that the civil suit was pending in the court of the Civil Judge, Aligarh. But he was not the counsel of Brij Mohan Lal in the civil suit and there is nothing to indicate that he was aware of the fact that Ram Chandra had given the notice to Jagannath Prasad. Jagannath Prasad did not allege in his affidavit that Shri Brahmanand Shamur, was aware of the fact. He simply wants it to be presumed from the mere fact that he was his counsel in the criminal court. We are not prepared to draw this presumption. Scienter is necessary to be established against a person against whom proceedings for contempt are taken; see The Metropolitan Music Hall Company v. Lake. It was argued on behalf of Jagannath Prasad that even if Shri Brahmanand Sharma acted innocently in prosecuting the criminal case, he was guilty of contempt on account of the existence of the previous notice. When Ram Chandra himself is held to be not guilty of contempt of court, the doctrine of relating; them back cannot possibly apply to make Shri Brahmanand Sharma guilty.

It was observed by Lord Russel of Killowen, L.C.J, in R.V Payne and Cooper “no doubt the power which the court possesses in such cases is a salutary power, and it ought to be exercised in cases where there is real contempt, but only where there are serious grounds for its exercise”. Accordingly, we discharge the notice.

In coming to the question of costs, we take serious notice of the fact that Jagannath Prasad himself indulged in an uncalled for attack on a person who was not even a party to the suit. He must pay for the indulgence. We also take serious notice of the fact that he roped in not only Ram Chandra but three other persons without any reasonable cause and failed to make out any case against them.

We discharge the notice issued against the opposite parties. We order Jagannath Prasad to pay Rs. 160 to each of the opposite parties 1 and 2 and Rs. 100 to each of the opposite parties 3 and 4 as costs. He will also pay Rs. 160 as costs to the Government Advocate.

Notice discharged.