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1997 DIGILAW 259 (GAU)

Suresh Kumar Jain and Ors. v. Tirtha Nath Saikia

1997-12-06

V.DUTTA GYANI

body1997
This contempt proceeding against the opposite party was initiated by this Court for violation of the order dated 24.7.89 passed in First Appeal No.23 of 1987. 2. Undisputed facts of the case are - the opposite party issued notice to the landlord on the prayer of the tenant for consideration of the claim of the tenant and fixed 4.7.89 for consideration of the matter. Accordingly, the parties appeared on 4.7.89 and submitted their respective submissions and the matter was fixed on 25.7.89, The appellant petitioner objected to the apportionment in so far as it related to the enhanced portion of the award. After hearing the parties and on examination of records the opposite party rejected the prayer of the appellant petitioners. The opposite party knew that the appellant-petitioner has filed an appeal against the order passed by the reference Court and a copy of the order dated 31.3.89 passed by this Court was also placed and perused by the opposite party. The petitioners were asked to produce stay order, if any, by 25.7.89. On 25.7.89 an application was filed by the counsel for the appellant petitioner praying for .allowing time for submission of document or orders wherein it was stated that the stay petition in the said FA No. 23 of 1987 would be heard after appearance of the respondent. It was further mentioned in the said application that this Court by order dated 24.7.89 directed the Collector to deposit the enhanced award amount in the Court of Assistant District Judge No.2 instead of disbursement. The said application was not supported by any affidavit. Even the typed copy of the order passed by the Court on 24.7.89 was not submitted. Finding no valid reason to stay the payment of the awarded sum in favour of the tenant and considering the hardship of the tenant the opposite party directed to pay the amount apportioned in favour of the tenant on execution of an indemnity bond. Accordingly, an indemnity bond duly signed by Shri Harmohan Kumar was accepted by the opposite party who issued the refund voucher for Rs.43,972.37. 3. It is the contemner 's case that he found it difficult to accept the contention of the petitioner and allowed to withdraw the amount by the tenant, that too on execution of an indemnity bond. There was no malafide intention on the part of the opposite party. 3. It is the contemner 's case that he found it difficult to accept the contention of the petitioner and allowed to withdraw the amount by the tenant, that too on execution of an indemnity bond. There was no malafide intention on the part of the opposite party. He further stated that the order passed by this Court on 24.7.89 was not served on him and had no authentic information about the passing of the said order. The allegation that the opposite party deliberately and willfully flouted the orders of this Court has been denied by the opposite party. He further stated in his affidavit that had he been supplied with authentic information by submitting either verified copy of the order dated 24.7.89 passed by this Court or by filing an application supported by an affidavit or verification then he would not have allowed to withdraw the amount in question. The opposite party has also expressed his sincere regret for the same and has tendered unqualified apology. 4. Learned counsel for the petitioner pointed out that at the time of referring the matter to the reference Court, it was directed by the Collector that the disputed amount was to be deposited in the Court. Had the opposite party any doubt then in the circumstance the opposite party could have get it clarified from the Registrar of the High Court regarding the veracity of the order passed by this Court. The opposite party acted beyond the contents of the judgment passed by the reference Court inasmuch as the reference Court never passed any such order to make payment to the legal heirs of the tenant. It was contended that even the oral information given by a counsel to the authorities is deemed to be a sufficient information in the eye of law. Controverting the statements made in paragraph 18 of the show cause reply of the opposite party, learned counsel submitted that at one place the opposite party stated that no proper petition had been filed by the petitioner, but in the same paragraph the opposite party again stated that if the counsel of the appellants-petitioners had orally informed him about the order, he would not have made the payment. 5. 5. The Supreme Court in BK Kar vs. Chief Justice of Orisaa, AIR 1961 SC 1367 , he held- “'Before a subordinate Court can be found guilty of disobeying the order of the superior Court and thus to have committed contempt of Court, it is necessary to show that the disobedience was intentional. There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. If what a subordinate Court has done is in utter ignorance of an order of a superior Court, it would clearly not amount to intentional disobedience of that Courts order and would, therefore, not amount to a contempt of Court at all. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate Court construed it in one of those ways but in a way different from that intended by the superior Court. Surely, it cannot be said that disobedience of the order by the subordinate Court was contempt of the superior Court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. What is, therefore, necessary to establish in a case of this kind is that the subordinate Court knew of the order of the High Court and that knowing the order it disobeyed it. That knowledge must, however, be obtained from a source which is either authorised or otherwise authentic. In the case before us it is not clear as to who the person who signed the application dated November, 27, 1957, was because the signature is illegible. It was not countersigned by a pleader nor is there anything to show that it was presented in Court by a pleader authorised to appear on behalf of the complainant. Furthermore, it was not accompanied by an affidavit. Therefore, there could no guarantee for the truth of the facts stated therein. No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant. Further, it is not possible to say as to the capacity of the sender. Therefore, there could no guarantee for the truth of the facts stated therein. No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant. Further, it is not possible to say as to the capacity of the sender. Had the telegram been received from the Court or from an Advocate appearing on behalf of the complainant before the High Court and addressed either to the Court or pleader for the complainant different considerations would have arisen and it may have been possible to take the view that the information contained therein had the stamp of authenticity. Of course, we do not want to lay it down here as law that every telegram purporting to be signed by an Advocate or a pleader is per se guarantee of the truth of the facts stated therein and also of the fact that it was actually sent by the person whose name it bears. In order to assure the Court about these matters an affidavit from the party would be necessary. Upon the materials before us we are satisfied that the Sub-Divisional Magistrate was entitled to ignore the telegram as well as the application. We, therefore, hold that this refusal to act on the telegram did not amount to contempt of Court. We may add that the fact that on receiving a copy of the High Court's order through the Additional District Magistrate not only were further proceedings were stayed but a writ to redeliver possession was not permitted to issue. This would show clearly that there was no intention on the part of either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court. The conviction as also the fine of the appellant is erroneous and accordingly set aside.” 6. This would show clearly that there was no intention on the part of either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court. The conviction as also the fine of the appellant is erroneous and accordingly set aside.” 6. Going through reply to the show cause notice as filed, the opposite party, it would be clear that not only the filing of application dated 24.7.84, Annexure II has been disputed and denied by him, he has also sought to justify the action of disbursement of the Rs.42,972.37 to the tenant, tracing his entitlement and referring to how “the appellants managed to obtain Annual Patta in respect of the aforesaid land and got compensation for the same in the aforesaid reference case.” This is nothing but another attempt of casting aspersions on the civil Court. The use of the expression 'managed to obtain' reveals morbidity of the mind of the opposite party. 7. The order dated 24.7.89 passed by the learned Single Judge of this Court in FA No.23 of 1987 is reproduced below for ready reference : “This petition for stay shall be taken up after appearance of the private respondents. In the interim, it is directed that the learned Collector, Kamrup, Guwahati shall deposit the enhanced amount awarded by the learned Assistant District Judge No.2, Gauhati in the said Court instead of disbursement.” 8. It is the willful disobedience of the above order which is the subject matter of this petition. The opposite party in para 18 of his reply states : “In the instant case had the petitioner submitted the proper application or even orally through the counsel, the opposite party would not have allowed to withdraw the amount of the tenant's share.” 9. It is an admitted position that the petitioner on 4.7.89 had appeared before the opposite party and apprised him of the pendency of appeal. A copy of the order dated 31.3.89 passed by the High Court was also placed and the same was admittedly perused by the opposite party. The petitioners were directed to produce stay order by 25.7.89, when admittedly an application Annexure 2 was moved giving all information and details about the progress in appeal and the stay order passed by the Court on 24.7.98. The petitioners were directed to produce stay order by 25.7.89, when admittedly an application Annexure 2 was moved giving all information and details about the progress in appeal and the stay order passed by the Court on 24.7.98. How could it be a 'ruse to delay payment to a tenant', why the opposite party could not give any evidence to the application? When he says that he would have believed the word of an Advocate (see para 18 of his affidavit). He has emphatically stated in para 12: “The opposite party begs to state most respectfully that the order passed by the Hon'ble High Court on 24.7.89 was not served on him and had no authentic information about the passing of the said order.” 10. It is a matter of common knowledge that instantaneous certified copies of stay orders passed by High Court are not readily available, nor served then and there on the authorities concerned. It may be noted that certified copy of the order dated 24.7.89 was in applied for, the same day as is evident from Annexure 1, the opposite party was also apprised of this fact then why this insistence and unholy hot haste on the part of the opposite party. The tenant was a party to the appeal. The amount of compensation was directed to be deposited in the reference Court by the then Collector, predecessor in office of the opposite party and there was no direction by the reference Court to pay the enhanced compensation to the tenant, and if the tenant so wanted, instead of directing the tenant to obtain suitable orders from the High Court where the appeal was pending, the opposite party took upon himself, and disposed of the matter in hot haste that itself speaks volumes. The justification that he advances is finding no valid reason to stay the payment of the awarded sum in favour of the tenant and considering the hardship of the tenant directed to pay the amount apportioned in favour of the tenant, on execution of an indemnity bond. Accordingly, an indemnity bond duly signed by Shri Harmohan Kumar was accepted by the opposite party who issued the refund voucher for Rs.42,972.37. Accordingly, an indemnity bond duly signed by Shri Harmohan Kumar was accepted by the opposite party who issued the refund voucher for Rs.42,972.37. “No valid reason to stay the payment” in face of the High Court's stay order, if there was any genuine hardship to the tenant, as sought to be made out by the opposite party to justify his action the tenant should have been asked to get the stay order altered or modified, rather completing the whole procedural formalities the same day on 25th. Indemnity bonds ordered, executed produced and accepted the same day is by itself something unusual. This superfast speed and promptness in the matter of disbursement of compensation by Land Acquisition Collector, without even waiting for a day for the stay order already passed, made known but as claimed by the opposite party 'not served' no authentic information received, the application dated 25.7.89 Annexure 2 itself contains the following statement: “That the opposite parties have filed a petition before the Hon'ble High Court for issuance of necessary direction in respect of appointment of and deposition of awarded amount to Kuladhar Kumar, the Hon'ble Justice Mr. SN Phukan by his order dated 24.7.89 passed in First Appeal No.23 of 1987 has put the stay petition for hearing after appearance of the respondents and further directed the Collector to deposit the enhanced awarded amount in the Court of Assistant District Judge No. 2 at Guwahati instead of disbursement. The parties has applied for certified copies of the order which is expected to be received within a week. Hence the opposite parties crave the leave of this Hon'ble Court to allow the opposite parties for submission of certified copies of the order dated 24.7.89 passed in FA No.23 of 1987 within a week.” 11. When a counsel, informs the subordinate Court of any stay order passed by the superior Court, if there be any doubt, the counsel may be called upon to file an affidavit of the party, but nothing of the sort was done. No heavens were going to fall if the payment was delayed by a day or two. His pleaded respect for Court's order is belied by his conduct. What more authentic information the opposite party required? Who on his own showing is prepared to believe the word of counsel in this behalf? No heavens were going to fall if the payment was delayed by a day or two. His pleaded respect for Court's order is belied by his conduct. What more authentic information the opposite party required? Who on his own showing is prepared to believe the word of counsel in this behalf? The opposite party as noted above, had ample notice of the fact that there was a stay order passed against disbursement of compensation. To contend that the order was not served on him or that no authenticated copy of the order was placed before him, is merely a devise employed by the opposite party to cover his contemptuous conduct. As has been pointed out by the Supreme Court in Hoshiar Singh & another vs. Gurubachan Singh & another, AIR 1962 SC 1084. In a matter of prohibitory order it is not necessary that the order should have been actually served upon the party. To justify committal for breach of such orders of course it is to be proved that the person had notice of the order. A same view has been expressed by the Supreme Court in Aligarh Municipal Board & others vs. Ekka Tonga Mazdoor Union & others AIR 1970 SC 1767 . The same has also been reiterated in the following cases (1) Babu Ram Gupta vs. Sudhir Bhashin, (1980) 2 SCC 47, (2) Rosnan Sam Boyce vs. BR Cotton Mills Ltd, AIR 1990 SC 1881 and (3) Maj. General BM Bhattacharjee vs. Russel Estate Corporation, AIR 1993 SC 1632 . Although the first two cases relates to undertaking given before the Court. 12. The willful and deliberate of the Court's order by the opposite party is emply established. He is found to be guilty of disobedience of Court's order dated 24.7.89. 13. There is not a word of consternation expressed by the contemner opposite party in his affidavit. A very guarded qualified statement has been made at the end of paragraph 18 which reads as under : “ In the aforesaid circumstances if the Hon'ble High Court hold otherwise than what are submitted hereinabove, your humble opposite party expresses his sincere regret for the same and tenders unqualified apology before Your Lordships which may kindly be accepted and the proceeding may be dropped.” 14. An apology to be acceptable must be unequivoval and not hedged and hypothetical. An apology to be acceptable must be unequivoval and not hedged and hypothetical. It must be unconditional and indicative of remorse and contrition, which is totally missing from the affidavit filed by the opposite party. On the other hand, all flimsy excuses and justification, have been advanced by the opposite party. Therefore, such apology can not be accepted. The opposite party is found to be guilty of willful deliberate disobedience of this Court's order constituting contempt under section 2 (b) of the Contempt of Court Act, 1971. He is sentenced to pay fine of Rs. 1,000/- or in default to suffer 7 days simple imprisonment. A month's time for depositing fine is granted.