Samir Kumar Sarkar v. Maharaj Singh

B.C Chakrabarti, J.:—This is an application under the Contempt of Courts Act, 1971 for criminal contempt on the allegations of violation of Court's order and thereby interfering with and/or obstructing administration of justice tending to lower the authority of the Court.

2. The case of the petitioners is as follows:—

The tank fishery recorded in Khatian No. 638 of Mouza Dhapamanpur popularly known as Gomukhpota fishery belongs to the petitioners in absolute right on the basis of their purchase by a registered deed dated March 6, 1963 from the then owner in possession Sm. Monorama Das Chowdhury who in her turn got the said property by virtue of a deed of gift dated October 1, 1962, Since purchase the petitioners as joint owners have been in actual Page: 214physical possession of the said fishery and their names were duty mutated in the revenue records of the mouza. While in possession, the petitioners were served with a notice issued by the State of West Bengal in the name of the previous owner claiming that the fishery had vested in the State. Against the said order the petitioner moved an application under Article 226 of the Constitution and obtained a Rule and interim order of injunction restraining the State of West Bengal and its officers from interfering with the possession of the petitioners Eventually the Rule was disposed of with the direction that the Revenue Authorities would not give effect to the order to be passed by the Revenue Officer or interfere with the possession of the petitioners for a period of 3 weeks after disposal of the proceeding by the Revenue Officer. After the Revenue Officer disposed of the said proceeding pending before him against the petitioners, the petitioners again moved this Hon'ble Court under Article 226 of the Constitution against the said order and again obtained a Rule and interim order of injunction. The said Rule is still pending and the interim order is still in force.

3. The respondent is the son of a Darwan of “Sarkar Estate” of Beliaghata of which the petitioners are co-sharers. The respondent has no concern with the fishery and has no manner of right, title or interest over the same. With a view to cause mischief to the petitioners and for making wrongful gain to himself respondent moved an application under S. 144 Cr. P.C before the Court of the Executive Magistrate, Barrackpur and by fraudulent misrepresentation and without impleading the petitioners obtained an ex parte order on July 18, 1981. On coming to know of the said proceeding the petitioner moved this Hon'ble Court and obtained a Rule and ad interim order of stay of operation of the impugned order passed by the Executive Magistrate. In the meantime the respondent filed a suit being Title Suit No. 94 of 1981 in the Second Court of Subordinate Judge at Alipore making false representation and allegations against the petitioners. The respondent prayed for injunction in the said suit which was refused. Being thus baffled in his attempts, the respondent started interfering with the possession of the petitioners. The respondent with his agents and associates suddenly came to the fishery on September 20, 1981 with the object of ousting the petitioners from the fishery. As the Police Authorities failed to take any steps in spite of the matter beingreported to them, the petitioners moved a writ application against the State of West Bengal, Superintendent of Police. Additional Superintendent of Police, Officer in-Charge of the Police Station and the respondent and his associates with the prayer for issue of a writ in the nature of Mandamus commanding the respondents nos. 2 to 4 therein to act and proceed in accordance with law. The petitioners obtained a Rule and an Interim order, the Rule being still pending. In spite of all these facts the respondent with his agents and associates again made attempts on January 23, 1982 to dispossess the petitioners and take forcible possession of the fishery. There being continuous attempts Page: 115to dispossess the petitioners, they were obliged to file a suit being Title Suit No. 34 of 1982 in the Second Court of the Subordinate Judge at Alipore against the respondent for a declaration of their title to the said fishery and for permanent injunction. The petitioners also filed an application for ad interim injunction restraining the respondent therein from disturbing the possession of the petitioners in the said fishery. The learned Subordinate Judge passed the following order on 22.2.1982—

“Plaintiff files a petition under Order 39 Rules 1 and 2 C.P.C and/or with S. 151 CPC praying for an order granting temporary injunction restraining the defendant, his men, agents and associates from interfering and/or disturbing the possession of the suit fishery described in the schedule till the disposal of this suit and also prays for an order of ad interim injunction to the same effect till the disposal of this petition.

Heard lawyer for the plaintiff at length perused the petition. Defendant to show cause within 7 days from the service of the notice as to why the plaintiff's prayer for temporary injunction shall not be granted.

Plaintiff's prayer for issuing the order of ad interim injunction is reconsidered and allowed. Defendants are hereby restrained from entering, interfering and/or disturbing the possession of the plaintiff of the suit described in the schedule to this petition till disposal of the petition under Order 39 Rules 1 and 2 C.P.C

Urgent requisite at once”

4. Notice of the said ad interim order of injunction with copy was sent to the respondent by registered post on February 25, 1982. On March 16, 1982 the respondent with his collaborates and associates being armed with deadly weapons forcibly entered into the said fishery and tried to catch fish and cut the embankment of the fishery. The respondent and his men were shown the order of injunction issued by the Court but he contumaciously refused to comply with the said order and openly declared that the Court had no jurisdiction to poke its nose concerning any matter relating to fishery and that his own laws were supreme in the fishery. The petitioners' men, however, somehow managed to resist the respondent but they threatened that they would come again. In the circumstances the petitioners by filing the present application have prayed for the issuance of a Rule of contempt against the respondent for interfering with and/or obstructing administration of justice and for tending to lower the authority of the Court by wilful disobedience of the Court's order, and to punish the respondent accordingly, if he failed to show a good cause in his defence. The petitioners further prayed for an ad interim order of injunction restraining the respondent from entering upon or interfering with the possession of the petitioners in the said fishery.

5. On this application a Rule was issued calling upon the contemner-respondent to show cause why he shall not be committed to prison or otherwise dealt with for having committed contempt of Court in the manner alleged.

Page: 2166. The contemner has shown cause by filing an affidavit-in-opposition. It is stated in the affidavit that the application for contempt is not maintainable, that the deponent of the affidavit verifying the said petition is not duly authorised agent of the petitioners and then went on to say that the tank fishery was leased out to his father, Raj Bansi Singha and one Smt. Hemlata Bose by an Amalnama prior to 1950. After the West Bengal Estates Acquisition Act came into force the names of the father of the respondent and Smt. Hemlata Bose were recorded in the record of rights being the persons in occupation of the fishery. In view of the provisions of the Estates Acquisition Act the fishery stood vested in the State of West Bengal and the respondent's father and Smt. Hemlata Bose being in actual occupation became direct tenants under the State. The respondent's father died in 1976 and the respondent being the legal representative continued to carry on business in the said fishery. The respondent then proceeded to say that in view of the thereatened invasion by some notorious persons he moved the Executive Magistrate, Barrackpur under S. 144 of the Code whereupon the said persons restrained themselves. Again on July 16, 1981 those persons suddenly attacked the fishery at about midnight. Thereafter on July 18, 1981 the respondent again moved the Executive Magistrate and an order was passed directing the police to see that no breach of peace took place. The authorities and the police, however, failed to take any steps. The respondent then filed an application under Article 226 of the Constitution and obtained an order from this Court. The petitioners claiming to be the owners of the fishery attempted to enter into the fishery on September 22, 1981. The respondent filed two Criminal Cases before the Sub-divisional Judicial Magistrate, Barrackpur against the petitioners and others under various sections of the I.P Code and the Arms Act. The affidavit then goes on to say that he filed application under Article 226 of the Constitution and also prayed for setting aside the interim order passed by this Court on the application filed by the petitioners. The application is still pending. In view of the interim order dated 3rd October, 1981 the respondent is not in actual physical possession of the fishery on and from 4th October, 1981. In dealing with the main allegations of the petitioners regarding the alleged violation of the interim order of injunction passed by the learned Subordinate Judge, Alipore the respondent in paragraph 14 of the affidavit-in-opposition averred that ever since he was dislodged from the said fishery, he had never been in the vicinity and the allegations made by the petitioners are false and mischievious. In the circumstances the respondent prayed for dismissal of the application.

7. Heard learned Advocate for the petitioners and the respondent. Mr. Sarkar appearing on behalf of the respondent contended that the application for contempt is misconceived and has been filed with the ulterior object of enforcing the ad-interim order of injunction passed by the learned Subordinate Judge and/or obtaining a fresh injunction, that such an application Page: 217is beyond the scope of S. 10 of the Contempt of Courts Act, 1971. He also complained that the application is not in conformity with the Rules framed by the High Court at Calcutta under the Contempt of Court Act, and that the affidavit sworn in support of the application is not by a person competent to swear the affidavit.

8. To take the last point first it may be pointed out that the affidavit was sworn by one Suhas Chandra Sikdar aged about 32 years. He claimed to be an employee of petitioners and being conversant with the facts and circumstances of the case further claimed to be competent to swear the affidavit. Then it is stated that the statements made in paragraphs 1 to 16 to the petition are true to his knowledge. It is significant that paragraphs 1 to 15 contain recitals about the title of the petitioners to the fishery which is traced from October, 1962 and the different proceedings initiated by the petitioners at different stages. Paragraph 16 contains the allegations of attempted violation of the order of interim order of injunction by the respondent. Since the deponent is aged only 32 years, the history of the title to the property could never be true to his knowledge as claimed by the deponent. In that respect the affidavit is incompetent.

9. Mr. Sarkar also complained that the application is not in form in so far as it is not in conformity with the Rules framed under the Act. Rules 4 and 7 require that the cause title and prayer to the petition should distinctly state the particular contumacious conduct alleged for which the Rule is prayed for. Rule 8 requires that every petition shall be signed and dated by the petitioner or his “duly authorised agent”. In the inst case the petition is not signed by the petitioners. The affidavit appended to the petition is by a person who claims to be an employee of the petitioners but does not indicate that he is a duly authorised agent of the petitioners. That being so the application must be found to be not in proper form. Rules 4 and 7 have also not been complied since the cause title or the prayer portion do not indicate the contumacious acts against which redress is sought.

10. The facts leading to the present application have been stated in some details. It is clear that each party is claiming title to the fishery and the question falls for determination in the two Civil suits filed by each party is as to who has the better title. The narration of facts in such details in the application for contempt was clearly unnecessary but I have referred to it since they have been narrated in details which only indicates that the petitioners real object is to indicate that they have a better claim and that therefore the breach of the interim order is required to be punished and that they are entitled to an injunction in that behalf. Mr. Sarkar argued on the authority of the case of Rudraiha v. State of Karnataka AIR 1982 Karnataka 182, that in cases of disobedience or breach of injunction order issued temporarily during the pendency of a suit, either under Rule 1 or Rule 2 of Order 39 C.P.C, it is inexpedient to invoice and exercise the contempt Page: 218jurisdiction. Indeed it has been held in that case, that in such cases action is contemplated by the Court which issued the injunction under Rule 2A of Order 39 C.P.C The decision further holds that it is a well settled principle of law that when there is a special law and general law, the provisions of the special law prevail over the general law and since special procedure and special provisions are contained in the C.P.C itself under Order 39 Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked. In taking this view reliance was placed on a decision of the Supreme Court in the case of Perspective Publication v. State of Maharastra AIR 1971 SC 221. The decision says that the summary jurisdiction by way of contempt must be exercised with great caution and cate and only when its exercise is necessary for the proper administration of law and justice. A similar view was taken in a Bench decision of this Court in the case of Calcutta Medical Stores v. Stadmad Pvt. Ltd., 1977 (1) CLJ 85.

11. Contempt of Court is essentially a matter which concers the administration of justice and the dignity and authority of judicial tribunals. It is not a right of a party to be invoked for the redress of his grievances. It is not also a mode by which the rights of a party adjudicated upon by a tribunal can be enforced against an other party. In the present case the matter in dispute requires a detailed enquiry. It must therefore, be left to the Court which passed the order and which presumably is fully acquainted which the subject matter of its own order. When the matter relates to mere infringement of an order as between the rival parties it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order. The proper and the correct mode is to take recourse to Order 39 Rule 2A of the C.P Code Contempt jurisdiction should not be invoked in such cases which is primarily reserved for what essentially brings the administration of justice into contempt of unduly weaken it. I have already referred to the prayer portions of the contempt application. It is apparent that after making a casual allegation of violation in prayers (a) and (b) the petitioners have prayed for an ad interim order of injunction. This in our view appears to be the main relief sought for in this application. It is however, argued that besides disobeying the order of injuction the respondent used words derogatory to the administration of justice and that therefore this is a case where contempt jurisdiction may justifiably be invoked. Whether or not the respondent is guilty of such conduct is essentially a question of fact. The petitioners have averred that the respondent committed such acts while the respondent in his affidavit-in-opposition has denied it. There is thus oath against oath on the question and the onus being on the petitioners to establish the same, we are unable to find that they have succeeded in doing so.

12. After the matter was heard out in full and judgment was reserved Page: 219there was a verval prayer from the petitioners for some further arguments by way of reply. The prayer was allowed but on the date fixed for the purpose the petitioners came up with some more affidavits to supplement the original application. We could not admit those matters at that stage without giving a fresh opportunity to the respondent to file affidavits-in-opposition. Accepting such a course would mean an unending process—for how long we do not know. There ought to be a finality in the hearing of the matter and that stage was already reached. Only an opportunity was given to make some further submissions on points of law as they wanted to do, but not to reopen the matter over again. Therefore the affidavits filed after the hearing were kept with the record but not considered.

13. We find that the application for contempt is not in conformity with the Rules framed under Act. The allegation has not been proved by cogent materials. We further hold that the real intention behind the application is to obtain some speedy relief by way of speedy execution of the order of injunction and/or a further injunction as prayed here. Such an application can better be entertained and effectively dealt with under Rule 2A of Order 39 of the Code. The present application is misconceived and therefore liable to fail.

14. The Rule is accordingly discharged.

There will be no order for costs.

N.G Chaudhuri, J.:—I agree.

Rule discharged.