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1975 DIGILAW 13 (KER)

THE ADVOCATE GENERAL v. BHOUMAN

1975-01-15

P.GOVINDA NAIR, V.KHALID

body1975
Judgment :- 1. This is an application to commit the respondent for contempt of Court for breach of an undertaking given by him to the Kayamkulam Munsiff's Court in a proceeding under the Kerala Buildings (Lease and Rent Control) Act, O.P. (BRC.) No. 3 of 1972, filed by one Govinda Pillai Narayana Pillai, in which eviction was ordered. The decree-holder took out execution as per E.A. No. 493 of 1973. The petition was posted for delivery to 2 4-1973. The respondent, who was the 5th counter-petitioner in the said application, applied for 10 days' time to surrender the key.. The Court granted time as prayed for, acting on this representation. The Court directed the Amin to effect delivery of the property after the expiry of the said period. Delivery was obstructed by an employee of the respondent on the ground that he was in possession of the property. The Amin had to return the warrant without effecting delivery in view of the obstruction caused. 2. The averment in the petition is that the Munsiff acted on the affidavit filed by the respondent which contained the undertaking to surrender the property within 10 days, the implication of course being, he was in possession of the property. The respondent thus made a wrong and misleading statement, deliberately and wilfully, which he did -not intend to fulfil and obtained a favourable order. 3. The learned Munsiff issued a notice to the respondent to show cause why he should not be proceeded against for contempt of Court. He filed a reply to the said notice. The Munsiff found the reply unsatisfactory and she passed Ext. P1 order holding that there was a prima facie case of contempt of Court. 4. The respondent put forward a case that the property was in the possession of another person and he bona fide believed that he could get the key from the said person before the expiry of the time requested for, by him. 5. The Munsiff has found that the respondent was not admittedly in possession of the building at the time the undertaking was given. The Munsiff has observed that the case that the property was with another person and that he bona fide believed that he can get the key from him "cannot be believed for a moment". 5. The Munsiff has found that the respondent was not admittedly in possession of the building at the time the undertaking was given. The Munsiff has observed that the case that the property was with another person and that he bona fide believed that he can get the key from him "cannot be believed for a moment". The Munsiff has discussed the evidence in this case in detail and has come to the conclusion that the petitioner deliberately made a false statement. The observation of the Munsiff in Ext. P1 to this effect reads as follows: "So evidently it can be seen that his averment in the affidavit is false and he was in fact making a false undertaking and by that undertaking he defrauded the Court and got time " 6. In the counter-affidavit filed by the respondent in this Court, things have not improved. If any, the counter-affidavit betrays a light-hearted attitude on the part of the respondent that a belated unconditional apology in this Court will be sufficient expiation of his sins. The last sentence in Para.3 of the counter-affidavit reads as follows: Only the true stale of affairs have been narrated by me in the counter and the same alone has been deposed by me when I was in the witness box. Even before the Court, in the counter filed by me, I had submitted that if the Court finds that there is prima facie contempt, I may be excused, for the reasons stated by me and the circumstances narrated by me, and that I may be exonerated from the charge". In Para.6 of the counter-affidavit the respondent tenders an apology is the following terms: "I hereby tender my unconditional apology for having filed the affidavit before Munsiff Kayamkulam and caused all this trouble to the Court and having given cause to the Court to think that I have committed contempt of Court". We are not satisfied that this is a case where this equivocal apology can be accepted to exonerate the petitioner from prima facie contempt which he has committed. No one should be left with an impression that tendering an unconditional apology at the time when contempt proceedings are heard by this Court, would be sufficient, unless there are compelling circumstances to accept the same. No one should be left with an impression that tendering an unconditional apology at the time when contempt proceedings are heard by this Court, would be sufficient, unless there are compelling circumstances to accept the same. The counsel for the petitioner submitted that his client bonafide believed that he would be able to surrender the property within the time asked for The observation of the Supreme Court in 1972 S.C.1197 at p. 1198, Para.9, is the answer to such apologies shorn of penitence and not made at the earliest opportunity: "Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace the apology is shorn of penitence. If apology is offered at a time when the contemner finds that the Court is going to impose punishment it ceases to be an apology and it becomes an act of a cringing coward." 7. The learned Advocate-General brought to our notice a decision of this Court reported in 1972 KLT 869, where the scope of an undertaking given to the Court was discussed by a Division Bench. In that case, the respondent's counsel gave an undertaking to the Court that his client would surrender the property and thereafter he filed a suit without disclosing the said undertaking and obtained an ex parte injunction order. It was this undertaking that was the subject matter of consideration by this Court. The question of law raised there was about the scope of the undertaking given. In that case Raghavan C. J., considered a few decisions of the Calcutta High Court and that of the Bombay High Court dealing with this aspect of the case and found the respondent therein guilty of contempt of Court. In that case' the Division Bench had to consider the divergence of opinion between Harries C. J.. of the Calcutta High Court and Chagla C. J., of the Bombay High Court regarding the scope of the undertaking whether the undertaking was given to the Court or to the party and the consequences flowing out of such undertaking The said question need not detain us in this case in so far as we have no doubt that the undertaking given here was to the Court and so there is clearly a manifest contempt committed by the respondent. 8. 8. In these days when there is a regular invasion on the rights and dignity of Courts, it is the duty of this Court to uphold the dignity of Courts and to alert those who deal with Courts, that this Court will relentlessly, though not vindictively try to uphold their dignity, no matter who commits contempt. Its duty is all the more onerous when subordinate judiciary is involved because it is the duty of this Court to protect the dignity of the subordinate Court since subordinate Courts look to this Court for protection. It is apposite to refer to the observations of the learned Chief Justice of the Supreme Court reported in AIR 1974 S.C. 2192. In Para.78 it is thus observed: The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity" It is also useful to quote the following observations from a decision of the Supreme Court reported in AIR. 1974 S.C. 710. "47. We thus reach the conclusion that the Courts of justice in a State from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice, and it is the expectation and confidence of all those who have or likely to have business therein that the Courts perform all their functions on a high level of rectitude without fear or favour, affection or ill-will. 48. And it is this traditional confidence in the Courts that justice will be administered in them which is sought to be protected by proceedings in contempt. The object, as already stated, is not to vindicate the judge personally but to protect the public against any undermining of their accustomed confidence in the judge's authority. 48. And it is this traditional confidence in the Courts that justice will be administered in them which is sought to be protected by proceedings in contempt. The object, as already stated, is not to vindicate the judge personally but to protect the public against any undermining of their accustomed confidence in the judge's authority. Wilmot C. J., in his opinion in the case of Rex v. Almon already referred to says: "The arraignment of the justice of the judges, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever man's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and is in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; nor for the sake of the judges, as private individuals, but because they are the channels by which the King's justice, is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current, which it has, for many ages, found all over this kingdom" Further explaining what he meant by the words "authority of the Court", he observed: "The word 'authority' is frequently used to express both the right of declaring the v law, which is properly called jurisdiction, and of enforcing obedience to it, in which sense it is equivalent to the word power but by the word 'authority', I do not mean that coercive power of the judges, but the deference and respect which is paid to them and their acts, from an opinion of their justice and integrity." The primary object therefore of contempt proceedings is not to be vindictive against any one but to vindicate the dignity of Court and the authority of law. Any one who acts against the dignity of Courts acts to his peril. This should not be lost sight of. It is necessary to remember that in their dealings with Courts, the parties should be honest and should never delude the Court into any action, making dishonest statements. We therefore hold that the respondent is guilty of contempt of Court. Any one who acts against the dignity of Courts acts to his peril. This should not be lost sight of. It is necessary to remember that in their dealings with Courts, the parties should be honest and should never delude the Court into any action, making dishonest statements. We therefore hold that the respondent is guilty of contempt of Court. In the circumstances of the case, we feel that ends of justice will be met by sentencing the respondent to pay a fine of Rs. 250/- on or before 15th February, 1975, and in default to undergo simple imprisonment for two weeks. Ordered accordingly.