Dr. Bimal Chandra Sen Petitioner v. Kamla Mathur

Avadh Behari Rohatgi, J.:— The Facts : The plaintiff, Dr. Bimal Chandra Sen, owns property No. 4405 in Darya Ganj, Delhi. He says that he gave a portion of his property on lease and licence to one Mrs. Kamla Mathur wife of Shri Rama Shankar Mathur. The plaintiff alleges that Mrs. Mathur was making illegal construction in the property. On 6-4-1981 he brought a suit in the court of the subordinate judge, Mr. S.N Gupta, for permanent injunction restraining Mrs. Mathur, her servants and agents, from carrying on any construction activities in the property. In the suit the plaintiff made an application for temporary injunction under Order 39 rules 1 and 2 of the Code of Civil Procedure. The subordinate judge granted a temporary injunction against the defendant, her agents and servants, on 6-4-1981. On 6-6-81 he modified the injunction order. From this order they, the plaintiff and the defendants, appealed to the court of the senior sub judge. Those appeals were dismissed.

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 has come before us.

4. At the very outset the question arises whether such a petition under Sections 10 and 12 of the Act is maintainable in this court on the averments made by the plaintiff. The suit was brought by the plaintiff against the wife of Mr. Mathur. She is the sole defendant in the suit. Against her the injunction order was issued by the subordinate judge under Order 39 rules 1 and 2, C.P.C enjoining her not to make construction. This was later on modified. Now the plaintiff complains of violation of the injunction order and says that the wife as the principal offender and the husband as an ‘aider and abettor’ be punished for contempt of court under Sections 10 and 12 of the Act and Article 215 of the Constitution. Will such a petition lie in this Court in respect of an injunction order issued by the subordinate judge ?

5. The principal argument of plaintiff's counsel is that Order 39 does not provide effective relief to the plaintiff as those provisions have their own limitations and a more efficacious remedy for doing complete justice to a litigant is provided by Sections 10 and 12(3) of the Act. Basing himself entirely on the Act he says that the wife is guilty of civil contempt and the husband of criminal contempt as an ‘aider and abettor’. I will examine this argument in relation to wife and husband separately.

Case against wife :

6. In so far as the wife is concerned the legal position admits of no difficulty. She is the defendant in the suit. The court issued a temporary injunction against her. The plaintiff alleges that she has disobeyed the injunction order. For disobedience of the injunction order rules 2A of Order 39 of the Code provides the remedy. Rule 2A says :

“Consequence of disobedience or breach of injunction.

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs him release.

(2) No attachment made under this 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. Taylor LR 1 Ch. D. at p. 431(1) Sir George Jessel said :

“Where on the other hand, a statutory power is conferred for the first time upon a court and the mode of exercising it is pointed out, it means that no other mode of exercising it is to be adopted.”

9. That the court which passes the injunction order shall have power to commit for contempt in case of breach is the unquestioned rule since 1882, unquestioned by anything that I can recognise as an authority binding on me. Section 493 of the Code of Civil Procedure (Act XIV) of 1882 enacted this rule. The present Code (Act V) of 1908 embodies the same rule. During the long history of the Codes in India for one hundred years there is not a single instance in our law books where the High Courts tried a party for the disobedience of injunction issued by a subordinate court.

10. A disobedience of an order of injunction is a contempt of court. Sub-rule (1) confers on courts the power to punish such contempt and, further, prescribes the punishment to be awarded therefor. (See Amritlal v. P. Srinivas Rao, AIR 1967 A.P 48 (49) (2) and Ram Saran v. Chatar Singh (1901) 23 All. 465 (466)(3). The sub-rule provides for the punishment not only of disobedience of the temporary injunction but also of breach of any of the terms subject to which the injunction may have been granted. (Narsappa v. Chinnareppa, AIR 1947 Mad. 98) (4). While the High Courts as courts of record have inherent jurisdiction to commit for contempt, other courts have no such power apart from the provisions of rule 2a. Janak Nandini v. Kedar Narain Singh, AIR 1941 All. 140 (141) (5) and Rochappa v. Sachi Devi ILR (1902) 26 Madras 494 (495) (6) (DB). So in the case of wife it is plain that for the disobedience of the injunction order or breach of any of its terms the court of subordinate judge granting the injunction has jurisdiction to punish “a person guilty of such disobedience or breach”. The High Court has power under Section 10 of the Act but the exercise of that power is discretionary. (See Ram Rup Pandey v. R.K Bhargava, AIR 1971 All. 231) (7).

11. In Ramalingam v. Mahalinga Nadar AIR 1966 Mad. 21(8) the court held that Order 39 rule 2(3), C.P.C is a far more adequate and satisfactory remedy in such cases. Any detailed inquiry must be left to the court which has passed the order and which is fully acquainted with the subject-matter of its own order of temporary prohibitory injunction. “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 wilful”, (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 the Act or the Constitution when admittedly he is not a party to the suit ? Is he guilty of criminal contempt of court which is the case against him? If he is guilty of disobedience of the injunction order granted by the subordinate judge being an agent or servant of the defendant, the court granting the injunction has undoubted power to punish him. But the question is : Can he be punished as an ‘aider and abettor’ of contempt? Proceeding on the theory that the High Court has power to punish the husband for criminal 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 AIR 1981 All 309(9) 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, C.P.C should not be permitted to skip over that remedy and take resort to initiate proceedings under the Contempt of Courts Act. The least that can be said is that it would not be a proper exercise of discretion on the part of this Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person. I am fortified in taking this view by the observations made in Ram Rup Pandey v. R.K Bhargava (AIR 1971 All. 231) and Calcutta Medical Stores v. Stadmed Private Ltd. (1977) 81 Cal. WN (209) (10).”

13. In Rudriah v. State of Karnataka 1981 (1) Karnataka Law Journal 33(11) (DB) the Court said that when special procedure and special provision is contained in the Code of Civil Procedure itself under Order XXXIX rule 2-A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked. If such a course is encouraged holding that it amounts to contempt of court, when an order of subordinate court is not obeyed, it is sure to throw open a floodgate of litigation under contempt jurisdiction. “Every decree holder can rush to this court stating that the decree passed by a subordinate court is not obeyed. This is not the purpose of the Contempt of Courts Act.” (p. 34).

14. These two decisions were cases where the plaintiff alleged contempt of court against a party to the suit and required the High Court to proceed against him under the Act. The Courts refused to take action under the Act. But what about a person who is not a party to the suit and who is charged with aiding and abetting the breach of the injunction order. Does Rule 2A also include an ‘aider and abettor’ who is not a party to the suit ? This is the question to be decided. In Mawazzam Ali v. Shubhas Chandra, AIR 1927 Calcutta 598(12) Rankin CJ and Majumdar J. expressed the opinion that order 39 rule 2(3) C.P.C (the old provision now replaced by Rule 2-A), is not intended to give the court power to visit for contempt of court people against whom no order is made and therefore abettors of contempt of court cannot be punished. Rankin CJ said :

“There can be no doubt that according to the English cases there does exist in the High Court in England a power to commit for contempt persons who abet disobedience of an injunction. But for the purposes of the mofussil courts this jurisdiction has to be taken as it appears in Order 39 of the Code of Civil Procedure. In my judgment there is no reason to 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 J. in Distt. Judge, Chhindwara v. Basori Lal, AIR 1940 Nagpur 203(13) held that the terms of Order 39 rule 2 do not contemplate punishment of one who, not being a party bound by injunction, incites or aids in the commission of its breach. (See also Bai Mani v. Bhailal Chunilal, AIR 1929 Bombay 417) (14).

17. In Off. Assignee v. Suryakan Thammal AIR 1938 Mad. 927(15) Loach CJ and Ayyangar J. took a contrary view. They applied Seaward v. Paterson (1897) 1 Ch. 545(16) to a case of insolvency under Section 58(5) of the Presidency Towns Insolvency Act, 1909.

18. In Pratap Udai Nath v. Sara Lal AIR 1949 Patna 39(17) a special bench of Agarwala CJ, Meredith and Narayan JJ held that equity acts in personam and an injunction is a personal matter. The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. Persons who were not defendants in the suit in which the injunction was granted nor were named in the decree cannot be proceeded against in contempt for disobeying the injunction, even if such persons claim through the person against whom the injunction was granted. The special bench held that the decision of the Privy Council in the case of S.N Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1938 P.C 295(18) was conclusive upon the point before them. In that case the Patna High Court had held that the Secretary of State for India and the Director and the Manager of the Kalyanpur Lime Works were guilty of contempt for interfering with a former lessee under the Government, the Kuchwar Lime and Stone Company Ltd. in breach of an injunction against the Secretary of State. The Privy Council held that there had been no contempt by the Secretary of State. But they were pressed with the argument that Ghosh and Banerjee of the Kalyanpur Company were nevertheless guilty of contempt for aiding and abetting. The Privy Council said :

“The respondents, however, contended that even if the Secretary of State was not himself guilty of direct disobedience to the injunction which had been granted, yet the other two appellants were guilty of contempt upon the principles set out in Avery v. Andrews, 51 L.J Ch. 414 (46 L.T 279) and Seaward v. Paterson (1897) 1 Ch. 545 : (66 L.J Ch. 267). In terms, however, those cases limit the offence of contempt by a person not a party to the injunction to cases where they aid and abet the party enjoined in its breach. Where, as here, that party has not broken the injunction it is impossible to hold that anyone has aided 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 them liable for an act not forbidden to them though forbidden to him.”

20. From the above rulings two propositions emerge. Firstly, a person not a party to the suit cannot be proceeded against for contempt for aiding and abetting the breach. Secondly, the jurisdiction to punish for disobedience of the injunction order vests in the court which granted the injunction.

21. The next question is : Can an ‘aider and abetter’ be proceeded against under the Act ? I think not. The only allegation against the husband is that he “is aider and abettor of contempt” as he “is supervising the fresh illegal construction activities”. This is an allegation more like an allegation against in agent than an abettor. The plaintiff has an effective alternative remedy against the principal party bound by the injunction and her agents and servants. We have not been shown any reported decision in India where the court punished an aider and abettor.

22. Civil contempt is defined in Section 2(b) of the Act. It “means wilful disobedience of any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”. This does not deal with the case of temporary injunctions because that subject is specially dealt with in Order 39, C.P.C

Aider and Abettor :

23. Then there is another difficulty in the way of the plaintiff. Unless it is held that the wife is guilty of disobedience of the injunction order or breach of its terms there can be no question of aiding or abetting. Unless there is a principal offender there can be no aider or abettor. The culprit's guilt must first be established. The court must first find who is the principal offender. She can only be the wife because she is the defendant to the suit. If it is held that she is not guilty of disobedience of the injunction or breach of its terms, there will be no question of the husband aiding and abetting her. Who will find whether the wife is guilty of disobedience of the injunction order ? It can only be, I think, the court of the subordinate judge, which granted the injunction order. The High Court cannot decide in lieu of the court granting the injunction. The subordinate judge is the best person to interpret his own order and to find, after taking evidence, whether the defendant is guilty of wilful disobedience of the injunction 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) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

(ii) prejudices, or interferes or tends 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 AIR 1980 SC 946(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 makes 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, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression “Contempt of Court” may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. “It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage”. Per Frank Furter, J. in Offutt v. U.S (1954) 348 US 11.

“The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope”. Per Judge, Curtis-Releigh quoted in Jennison v. Baker (1972) 1 All. E.R 997 at p. 1006.”

26. The essence of criminal contempt consists in the doing of something calculated or designed to obtain a result of legal proceedings different from that which would follow in the ordinary course. (Lechmere Charlton's case (1836) 40 E.R 661(20) per Lord Cottenham). It deals, to use the words of Lopes L.J, with something outside the cause and, is not a mere step in the cause. (O'shea v. O'shea and Parnell 15 PD 59)(21). Criminal contempt is external to the administration of justice and truly subversive of it. It is an obstruction and outrage against the public administration of justice. It is essentially criminal in character. It is the foulest contamination which can infect the judicial system. It is a great evil. A court has to protect its administration of justice and all those who share or are convened to its labours. Judges, witnesses, juroxs, process servers, etc. all have to be protected. And a court of justice can protect itself against the outrage by suppression and punishment. But this power to commit must be used sparingly and with the greatest caution. The greater the power the greater the restraint.

27. ‘Criminal Contempt’ may be defined as contumelious or obstructive behaviour directed against the court and one example of this is contempt in the face of the court. It is an obstruction of justice, a sinning against the majesty of the law and the time-honoured 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 sreving 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 court. The jurisdiction in respect of civil contempts is primarily remedial, once the offender complies with the court's order he has a right to be released, whereas there is no such right in respect of criminal contempts.

29. Criminal contempts are essentially offences of a public nature and consist of publications or acts which interfere with the due course of justice as, for example, by tending to jeopardise the fair hearing of a trial or by tending to deter or frighten witnesses or by interrupting court proceedings or by tending to impair public confidence in the authority or integrity of the administration of justice. Civil contempts, on the other hand, are committed by disobeying court judgments or orders either to do or to abstain from doing particular acts, or by breaking the terms of an undertaking given to the court, on the faith of which a particular course of action or inaction is sanctioned, or by disobeying other court orders. Civil contempts are therefore “offences” essentially of a private nature since they deprive a party of the benefit for which the order was made. The essence of the court's jurisdiction in respect of criminal contempts is penal, the aim being to protect the public interest in ensuring that the administration of justice is duly protected. On the other hand, the court's jurisdiction in respect of civil contempt is primarily remedial, the basic object being to coerce the offender into obeying the court's judgment or order. (Borrie & Lowe-Law of Contempt—pages 369-370).

30. This then is the distinction between ‘civil contempt’ and ‘criminal contempt’. This distinction is made in the Ac. The disobedience of injunction is a civil contempt Strictly speaking it does not fall within section 2(b) of the Act. It is specifically dealt with in Order 39 of the Code. But it is not a criminal contempt. The argument that the act of aiding and abetting a breach of injunction amounts to a criminal contempt is based on the leading English case of Seaward v. Paterson (1897)1 Ch. 545. It concerned a promoter who had arranged boxing matches on residential premises in London and thereby knowingly assisted the lessee to disobey an order enjoining him from committing a nuisance. In the course of his judgment in the Court of Appeal upholding the promoter's committal for contempt. Lindley L.J distinguished 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(458-459)(22), 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 stranger who helps the defendant to breach the injunction is sent to prison, no doubt as a punishment for contempt but the effect of sending him to prison is also an indirect enforcement of the order which benefits the plaintiff.”

(Jennison v. Baker (1972) I All ER 997).

So on any view it is a civil contempt. There is no element of criminality in it. It is not per se a crime. All that has been said against the husband is that he has participated in defying the injunction. Has he participated in a criminal act ? The answer must be “no”.

31. The Privy Council in S.N Bannerjee v. Kachwar Lime & Stone Co. (supra) said :

“It is now sufficiently established that a committal for a finding of contempt for breach of an injunction is not criminal in its nature and is properly dealt with under the Civil Procedure Code. See Scott v. Scott (1913) AC 417,456.”

32. We have the high authority of the Privy Council for the proposition that the breach of injunction is a civil contempt. It is so in the case of wife. It will be so in the case of the husband if he can be held guilty of disobedience of an injunction which forbade him not. There is no question of criminal contempt. The Privy Council is referring to the speech of Lord Atkinson at page 456 in Scott v. Scott (supra) with approval and saying that the matter is governed by the Code of Civil Procedure. The Code is a comprehensive and complete refutation of the plaintiffs case. I, therefore, reject the contention that the present is a case of criminal contempt. Sections 10 and 12 of the Act invoked by the plaintiff have no application. It is not a case of contempt of the subordinate courts which the High Court should punish.

33. In my view Seaward v. Paterson (supra) on which plaintiff's counsel relies heavily has no application to the facts of this case. In England that jurisdiction “has been exercised for a very long time—for longer than any of us can remember” and was held to be “undoubted” (per Rigby LJ at page 558). Recently Lord Denning followed Seaward v. Paterson in Acrow (Automation) Ltd. v. Rex Chainbelt (1971) 3 All E.R 1175 (1180)(23). Whether we have the same jurisdiction I do not decide. Rankin CJ denied jurisdiction to Indian Courts as long ago as 1927 in Mawazzam Ali. He had in mind Seaward v. Paterson. He said that in India the Code of Civil Procedure does not permit the court to punish 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 v. Choudhry Plastic Works(24). That was a patent case. The High Court passed a decree of injunction in plaintiff's favour. The defendant disobeyed the decree. It was a case of wilful 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 involves private injury. No public interest is involved. Only the particular interests of the parties to the case are affected. Rai Prakash's case much relied on, by no means supports the plaintiffs contention but tends strongly to negative it. It will not like to comment on it further as it is in appeal to the Supreme Court.

35. Here we are asked to punish the husband for criminal contempt. The utmost that can be said is that he is obstructing in the administration of civil justice. But the court has not issued any injunction against him. Nor forbade him to do any act. Assuming that he supervised the construction the act does not ‘savour of criminality”. One who encourages another to act in breach of an injunction is not a criminal. An order of the court in a civil suit creates an obligation upon the parties to whom it applies, the breach of which will be punished by the court, and in proper cases such punishment may include imprisonment. But it does no more. It does not make such disobedience a criminal act. The Courts in India have consistently and without any exception held that the orders punishing persons for disobedience to an order of the court are civil contempt for which an effective remedy is provided in the Code. So the principle of Civil contempt is rooted in the Codes. It it rooted in the wisdom of a century of justice in India.

36. The Act makes a clear distinction between civil and criminal contempt. We have to observe it. Salmon LJ expressed the opinion that there is no real justification for making distinction between civil and criminal contempt. In Jenison v. Bakar (supra) he said :

“Contempts have sometimes been classified as criminal and civil contempts. I think that at any rate today, this is unhelpful and almost meaningless classification.”

37. We cannot ignore this distinction because the Act makes it. Each case will depend on its facts, the distinction being between process to compel performance of a civil obligation and process to punish conduct which has about it some degree of criminality, some defiance of the general law. (Stourton v. Stourton (1963) P. 302(310)(25) per Scarman J). In the present case I am clearly of the opinion that the process of contempt is being used to compel performance of a civil obligation. It is a civil process. It is a civil contempt, if proved. I do not regard the case as one of criminal 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, C.P.C 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 1, rule 2 and Rule 2A of Order 39 has been made expressly appealable under Order 43 rule 1(r). All these appeals in the present case will lie to the senior subordinate judge, the valuation of the suit being Rs. 200 for purposes of court fee and jurisdiction as fixed by the plaintiff. It would be anamolous 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 contemplate this. It expressly provides for grant of injunctions and the punishment for their disobedience. Appeals lie against grant of injunctions. Appeals lie against punishment. Appeals lie against the order to punish or refusing to punish for disobedience. The High Court does not come into the picture at all. It is neither a case of civil contempt nor criminal contempt under the Act. It is a plain case falling within the four corners of Order 39 of the Code of Civil Procedure. To hold that the High Court has power to punish will be to hold that the subordinate judge has the power to grant injunction, but the High Court has the power to punish for the disobedience of his order under Sections 10 and 12 for civil and criminal contempt because aiding and abetting is alleged.

40. If this argument of plaintiff's counsel is accepted it will create chaos. Where will appeals lie no one will know. The absurd anomaly will be this : that the principal who does an act he is expressely prohibited by injunction from doing shall only be guilty of a civil contempt of court, while a person not expressly or at all prohibited who aids and abets the principal in doing that very act shall be held guilty of a criminal contempt of court, with the result that the more flagrant transgressor of the two, the principal, would have a right to appeal to the court of senior sub-judge as in this case against any order punishing her for her misdeed, while the abettor would have a right of appeal to the Supreme Court from our order punishing him for “aiding and abetting” the principal to commit the forbidden act. The disrespect to the court which made the order that was disobeyed, and the defiance of its authority, would seem to be greater in the case of the principal than in that of an abettor.

41. There is another absurdity. If we try the wife for civil contempt under the Act a single judge will do it. But the husband will have to be tried by two judges for criminal contempt. This will also result in appeals being taken to different courts. For my part. I refuse to give the statute a meaning which leads to an impractical and ridiculous result unless compelled to do so by the language of the statute itself or by a clear authority which is binding on this court. I can find nothing in the Act or the Constitution which supports the argument on behalf of the plaintiff.

Conclusion :

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(26) at page 316 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 the defendant if he finds her to be guilty in flagrantly defying the order which he had made. Contumacious disregard and contemptuous disobedience if the orders of the court have always been visited with committal to prison and attachment. Against the husband no case of criminal contempt has been made out. It seems to me that the application is wholly misconceived.

44. Founding himself on Seaward v. Paterson counsel argued that the husband incited the wife in continuing the construction in defiance of the order of the court. It was argued that the husband's support and endorsement of the action of the defendant in setting the court at defiance is a criminal contempt. With this contention I do not agree. In that case the principal Paterson, his agents and servants were restrained by injunction from, amongst other things having, or permitting to be held, exhibitions of boxing on his premises. He held, or permitted to be held there, such an exhibition in breach of this injunction. One Murray, who was neither his agent nor servant, was present at the exhibition, aiding and abetting Paterson in holding it. The plaintiff moved that both principal and the abettor should be committed for breach of the injunction. The whole controversy before North J. was whether Murray could be committed, as he was not a party to the suit and was not named in the injunction. The learned judge held that he could be committed, not indeed for breach of the injunction but for contempt of court in aiding and abetting Paterson in doing an act which the latter was by the injunction prohibited from doing, and committed both Paterson and Murray to prison. Murray alone appealed from this order to the court of appeal. In the appeal the order of North J. was upheld.

45. Seaward v. Paterson has given rise to much controversy which in the present case it is not necessary to resolve. In Scott v. Scott (supra), Lord Atkinson in a devastating criticism exploded the view that the act of Murray amounted to criminal contempt. Salmon LJ in Jennison v. Baker (supra) regards it as a case of civil contempt. It was followed in Acrow (Automation) by Lord Denning and Cross J. in Phonographic Performance Ltd. v. Amusement Caterers Ltd. (1963) 3 WLR 898(27). In India its applicability to injunctions was denied by Rankin C.J in Mawazzam Ali. Niyogi J. in District Judge v. Basori Lal followed him. In Madras 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 & Another… v. Vishwanath Khanna…, AIR 1979 Delhi 202(214)(28) (DB)].

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 v. 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 contempt which is difficult to classify is aiding and abetting a breach of injunction. It can be argued that such an act amounts to a criminal contempt since the offence is not committed by a party to the action and the act clearly impedes the due course of justice. On the other hand it can equally well be argued that the act amounts to a civil contempt, the punishment of the offender being an indirect means of enforcing the court order for the benefit of the plaintiff. Authority can be found to support both of these views.” (page 371).

47. This controversy shows at least one thing. Despite many important differences between them, it is possible to see in civil contempt and criminal contempt a number of ‘family resemblances’, to adopt a useful phrase of the philosopher Wittigenstein. The line of demarcation is thin. It is difficult in some cases to say on which side of the line a case falls. Both tend to undermine the administration of justice.

48. In India the position is different. In this country the authoritative decision is of the Privy Council in S.N Banerjee v. Kuchwar Lime & Stone Co. Ltd. (supra). The Privy Council has held that disobedience of the breach of injunction is a civil contempt governed by the Code of Civil Procedure. For their decision they relied on Scott v. Scott (supra). The Patna High Court had relied on Seaward v. Paterson. Reversing the High Court the Privy Council held that Seaward v. Paterson did not apply to the case before them. I would say the same. Seaward v. Paterson does not apply to the present case. This is a straight forward case of an injunction granted by the subordinate judge and the plaintiff alleging its disobedience by the defendant and her husband. The answer is : “Go to the court which issued the injunction”.

49. Mr. Ramachandran in his Contempt of Court (4th ed.) at page 646 says that the principle in Seaward v. Paterson that persons aiding and abetting the principal offender are also liable in contempt, has not been followed in India. He refers to Maharaj Pratp Udai Nath v. Sara Lal, AIR 1949 Patna 39(29) and the Privy Council in S.N Bannerjee (supra) in this connection. I have come to the conclusion that for the purposes of this case it is unnecessary to determine the parameters of Seaward v. Paterson or to decide how far that case can be followed in India.

50. For these reasons I would dismiss the application but make no order as to costs. I make it clear that if the plaintiff desires he may move an appropriate application to the subordinate judge under Rule 2A of Order 39, Code of Civil Procedure for disobedience of the order of injunction. The subordinate judge will decide the application according to law. I say nothing on the merits of the case.

LEILA SETH, J.—I agree.

A.A Application dismissed.