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Rajasthan High Court · body

2001 DIGILAW 219 (RAJ)

Wazir Ahmed Khan v. Mohd. Anwar Ali

2001-02-07

V.S.KOKJE

body2001
Honble KOKJE, J.–This is an application filed on behalf of eleven petitioners, who were plaintiffs in two civil suits filed in the court of learned Munsif, First Class, Chhabra for a declaration that they were Indian citizens and therefore, can not be deported to Pakistan branding them as Pakistani citizens. The learned Munsif, First Class, Chhabra dismissed both the suits in- toto. The Additional Distt. Judge, Baran dismissed the appeal arising out of the suits. The matter was brought to this Court in second appeal by the applicants. This second appeal registered as S.B. Civil Second Appeal No. 33/86 was decided on 11.3.97 and this contempt petition arises out of the alleged dis-obedience of the order passed in that second appeal. (2). The applicants have alleged that on 19.7.2000, the Civil Judge (Senior Division), Chhabra passed an order that as the second appeal has been dismissed, a communication be sent to the Ministry of Foreign Affairs, Government of India to arrest the plaintiff-applicants and to deport them to Pakistan. It is also alleged that when this order came to the knowledge of the applicants, they moved an application on 31.7.2000 U/s. 151 CPC before the Civil Judge (Sr. Division), Chhabra praying for revocation of the order dated 19.7.2000 and for staying its execution. Between 19.7.2000 and 31.7.2000, the Presiding Officer of the court of Civil Judge (Sr. Division), Chhabra had changed because of transfer. The order dated 19.7.2000 was passed by the non petitioner No.1 whereas the application dated 31.7.2000 was made to and the order dated 9.8.2000 thereon was passed by the non petitioner No.2, the new incumbent. The non petitioner No. 2 on 9.8.2000 took the view that in the circumstances of the case, it was not proper to grant ex parte stay order and therefore, prayer for grant of ex parte stay order was rejected. He directed issue of notice of the application to the other side and fixed the case on 6.9.2000 for biparte hearing on the application. (3). After the passing of the order dated 9.8.2000, the present contempt petition was moved by the applicants before this Court against Mohd. Anwar Ali, Civil Judge (Sr. Division), Gangapur City (Sawai Madhopur) who was the Presiding Officer of the court of Civil Judge (Sr. Division), Chhabra on 19.7.2000 and Shri Ashok Gupta, Civil Judge (Sr. Division), Chhabra (Baran) who had passed order dated 9.8.2000. (4). Anwar Ali, Civil Judge (Sr. Division), Gangapur City (Sawai Madhopur) who was the Presiding Officer of the court of Civil Judge (Sr. Division), Chhabra on 19.7.2000 and Shri Ashok Gupta, Civil Judge (Sr. Division), Chhabra (Baran) who had passed order dated 9.8.2000. (4). It is contended that the respondent No.1 has committed contempt of court by passing the order dated 19.7.2000 which was not in consonance with the judgment and decree passed in S.B. Civil Second Appeal No. 33/86 and the non petitioner No. 2 Ashok Gupta has committed contempt of court by passing the order dated 9.8.2000 refusing to grant ex parte stay of the execution of order dated 19.7.2000. The complaint is that both these non petitioners were aware of the judgment of this Court in the second appeal and yet, they have deliberately, wilfully and intentionally chosen not to comply with the directions given by this Court in its judgment dated 11.3.97. It was also contended that having come to know of the judgment dated 11.3.97 passed by this Court in the second appeal, it was the duty of the non petitioner No.2 to have granted ex parte stay order and by not granting such a stay, he has also flouted the order of this Court and has committed contempt of the court. (5). Although the non petitioners have filed their replies prefacing them with an apology, they have at the same time, tried to explain their conduct and have also raised defences. The non petitioner No.1 has also raised in the reply the ground of limitation. According to him, for disobedience of order dated 11.3.97, no action could be taken in the year 2000 as the limitation for taking such an action is one year only. This objection has no substance because even though the order was dated 11.3.97, it was alleged to be disobeyed in the year 2000, and therefore, action could be taken within one year from the date the order was alleged to be disobeyed. It is not the law that every order passed by the court becomes open to flouting and could be disobeyed after one year has passed from the date of passing of the order. (6). It is not the law that every order passed by the court becomes open to flouting and could be disobeyed after one year has passed from the date of passing of the order. (6). The non petitioner No.1 has submitted in his reply that as he was transferred he was in a haste to dispose of many routine files placed for his signatures by the Reader of the Court. As he was in haste, he did not read the whole order and signed the same in the belief that it must have been in accordance with the directions of the High Court. It is also contended that since the second appeal stood dismissed and no material order was required to be passed in it, the non petitioner No.1 thought it a routine matter and without reading the order thoroughly, signed the same. (7). It is further pointed out in the reply that the applicants in their review application dated 31.7.2000 have stated that it appeared that the non petitioner No.1 was not apprised of the orders dated 11.3.97 and 12.2.86 when he passed the order dated 19.7.2000. This according to the non petitioner No.1 shows that the petitioners were also of the view that there were no malafides on the part of the non petitioner No.1 and he had no intention to deliberately flout the order of this Court. It was also pointed out that in Para 7 of the application dated 31.7.2000 filed by the applicants before the trial court, they had specifically averred that the order dated 19.7.2000 was passed because the Court was not apprised of the facts of the case and the orders and documents were not brought to the notice of the Presiding Officer of the court below. On this basis, it was contended that the petitioner could not be heard now to say that the order was passed malafide or that it was passed with the deliberate intention of disobeying the order of this Court and therefore, amounted to contempt of court. Ultimately, it was pointed out that no relief as prayed for in para 11 for staying operation of the orders dated 19.7.2000 and 9.8.2000 could be passed in this contempt petition. Ultimately, it was pointed out that no relief as prayed for in para 11 for staying operation of the orders dated 19.7.2000 and 9.8.2000 could be passed in this contempt petition. It was also pointed out on behalf of the non petitioner No.1 that he had no occasion to imagine or visualise a situation that such an order would come to be passed while dismissing the second appeal. (8). The non-petitioner No.2 has also opened his reply with an apology but also submitted his defence. His explanation for not passing ex parte ad-interim order was that he had to satisfy himself about the fulfilment of the conditions imposed by the High Court in its order dated 11.3.97 because continuance of ad interim injunction in favour of the plaintiff-applicants depended on applicants filing application before the Central Government within one month of the order dated 11.3.97 which was imposed as a condition for continuance of the stay order against deportation of applicants. He has also pointed out that the application dated 31.7.2000 only spoke of one of the applicants Wazir Ahmed having applied within one month and was silent about the applications of other applicants. (9). I have heard learned counsel for the parties, perused the record and considered the explanation given by the non petitioners. (10). Let me first deal with the case against the non petitioner No.1. It is clear that he was dealing with a dead record in the sense that as the matter was concluded by the decree passed in second appeal, nothing was required to be done by him as the Judge of the trial court because no proceedings were pending in his court arising out of that decree. Normally, when the record is sent back after decision of the second appeal, unless the case is remanded, nothing further is required to be done by the court below. The information of the decision in second appeal is only to be noted and the file has to be consigned to record room. The matter was therefore a routine matter and the learned Judge was entitled to treat it as a routine matter. However, the trouble arose because of a direction given while dismissing the appeal. (11). The information of the decision in second appeal is only to be noted and the file has to be consigned to record room. The matter was therefore a routine matter and the learned Judge was entitled to treat it as a routine matter. However, the trouble arose because of a direction given while dismissing the appeal. (11). The background, in which the direction given while dismissing the second appeal, which led to the present proceedings, came to be passed has to be seen, to appreciate the case of the non petitioner No.1 that he was not aware of the direction and had no reason to believe or never expect that any directions or injunction may be issued while dismissing a second appeal. A perusal of record of S.B. Civil Second Appeal No. 36/86 shows that it was filed on 11.2.86 and on 12.2.86, the High Court directed that notices be issued to the respondents to show cause as to why the appeal should not be admitted. A restraint order against the deportation of the appellants during the pendency of the appeal was also passed on that day. The appeal was pending for service of notices for several years, and on 25.10.93 when it appears that the service was complete and the matter was fixed before the Court, the Court desired to look into the record of the case before passing the order on admission. Ultimately, on 5.12.94, the appeal was admitted but without framing substantial questions of law. The presence of the learned counsel for the appellant only was recorded on that day but it was observed that the counsel for parties agreed that the appeal may be heard and disposed of finally at an early date and the appeal was ordered to be placed for final hearing in the second week of January, 1995. However, the case could not be heard till 11.3.97 on which date, it was heard and the judgment was pronounced on the same day in the Court. No substantial question of law was framed as is required by Section 100 CPC which reads as under: ``100. However, the case could not be heard till 11.3.97 on which date, it was heard and the judgment was pronounced on the same day in the Court. No substantial question of law was framed as is required by Section 100 CPC which reads as under: ``100. Second Appeal.- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involvers a substantial question of law. (2) An appeal may lie under this Section from an appellate decree passed ex parte. (3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. (12). The aforesaid Section makes it obligatory on the High Court to formulate substantial question of law involved in second appeal and the appeal has to be heard on the question so formulated. (13). In paras 4, 5 and 6 of the judgment, which virtually decided the appeal, the Court observed as follows: ``4. From close scrutiny of the judgments given by both the courts below, it is borne out that the plaintiff-appellants have been non-suited on the ground of inherent lack of jurisdiction of Civil Court. 5. It is further revealed from the judgments of both the courts below that they have placed reliance on a decision rendered by the Apex Court in case of State of Uttar Pradesh vs. Mohammad Din and others, reported in AIR 1984 SC 1714 . 5. It is further revealed from the judgments of both the courts below that they have placed reliance on a decision rendered by the Apex Court in case of State of Uttar Pradesh vs. Mohammad Din and others, reported in AIR 1984 SC 1714 . In case of Mohammad Din (supra), their Lordships ruled that from the amplitude of the language employed in Sec. 9 of the Indian Citizenship Act, 1955, the legislative intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution i.e. after January 26, 1950 and after the commencement of the Indian Citizenship Act, 1955 is within the exclusive jurisdiction of the Central Government. Now under the Indian Citizenship Act, the matter relating to the Indian Citizenship is required to be decided by the prescribed authority as envisaged under sub-sec. (2) of Sec. 9 of the aforesaid Act. It is further held by their Lordships in case of Mohammad Din (supra) that in such cases, the Civil Courts have no jurisdiction to decide the issue arising in a suit instituted after commencement of the Indian Citizenship Act, 1955 as the Central Government alone has been conferred to determine such questions relating to citizenship. 6. It is to be imbibed that the decision rendered by the Apex Court in case of Mohammad Din (supra) is binding in Second Appeal as enshrined under Art. 141 read with Article 144 of the Constitution. Article 144 of the Constitution clearly provides that Civil and Judicial authorities are under obligation to act in the aid of the Supreme Court pronouncement. Thus, both the courts below have committed no substantial error of law or procedure in dismissing the suits filed by the plaintiff- appellants on the ground of inherent lack of jurisdiction and an argument contrary to it is not acceptable, hence, rejected. I decline to interfere with the decree under appeal passed by both the courts below and it is hereby affirmed. (14). Thus, this Court had come to the conclusion that the civil courts had no juris- diction to decide the question of citizenship and therefore, the dismissal of the suit on the ground of lack of jurisdiction was proper. I decline to interfere with the decree under appeal passed by both the courts below and it is hereby affirmed. (14). Thus, this Court had come to the conclusion that the civil courts had no juris- diction to decide the question of citizenship and therefore, the dismissal of the suit on the ground of lack of jurisdiction was proper. This should have been the end of the matter and the decree of dismissal of the suit not only should have been taken to be confirmed but it actually stood confirmed. Nothing more could be done in the appeal as the appellate courts power was co-extensive with the power of the Civil Court. Sec. 107 and 108 CPC provide for powers of the appellate court and read as under: ``Sec. 107. Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. Sec. 108. Procedure in appeals from appellate decrees and orders.- The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals- (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided. (15). In view of the above, if the trial court had no jurisdiction to deal with the suit, it could not have passed any effective order in it and likewise, the appellate court also could not have jurisdiction to pass any order or direction in the appeal, which the trial court had no jurisdiction to pass. (15). In view of the above, if the trial court had no jurisdiction to deal with the suit, it could not have passed any effective order in it and likewise, the appellate court also could not have jurisdiction to pass any order or direction in the appeal, which the trial court had no jurisdiction to pass. Having held that the trial court had no jurisdiction to entertain the suit, this Court sitting in second appeal was not expected to pass any further order and the courts below were entitled to presume that dismissal of the second appeal in such a situation was the end of the matter and nothing further was expected to be done by the trial court. (16). However, this Court, after having observed in Paras 4, 5 and 6 of the judgment, as above, went on observing further in paras 7, 8 and 9 as follows: ``7. It is strenuously urged by the learned counsel for the appellants that no litigant should be allowed to suffer because of error of judgment of a Court. There is substance in the aforesaid argument of the learned counsel for the appellants. 8. It is apparent from the record that earlier the present plaintiff-appellants had filed a writ petition before the Rajasthan High Court at Jodhpur wherein writ petition was dismissed with a direction to them to file a suit before a civil court. In the present case, it goes without saying that the plaintiff-appellants have filed the present suits in compliance of the order passed by the High Court. In such a situation, this Court is called upon to strike a balance to adjust the equity between the parties. 9. Looking into the peculiar facts and circumstances of the present case and taking into account the humanitarian considerations, I consider it just and proper in the interest of justice to adjust the equity between the parties finally disposing of the present second appeal confirming the decree under appeal with a rider that ad interim stay order granted by this Court on 12.2.86 shall continue to remain operative till the question relating to citizenship of the plaintiff-appellants is not finally decided by an appropriate authority as postulated under sub-sec. (2) of Sec. 9 of the Indian Citizenship Act, 1955 read with the Rules framed thereunder provided the plaintiff- appellants within a period of one month from today file an application under the aforesaid Act. (17). It appears that the Reader of the Trial Court who dealt with the record of the second appeal got confused upon reading the aforesaid direction continuing ad interim stay order granted by the court on 12.2.86 and without understanding the proper meaning of the order, wrote a proceeding narrating the history of the case and at the end, adding that as a result of the dismissal of the appeal, the plaintiffs have ceased to be citizens of this country and a communication be sent to the Ministry of Foreign Affairs for their deportation out of India and the appellants be arrested and sent out of India. This was a totally unnecessary and unwarranted order and if the non petitioner No. 1 had properly read the order before signing it, he would not have signed such an order. Signing an order without reading it was surely a negligent conduct on the part of the non petitioner No. 1. (18). It is to be examined now as to whether the conduct of the non petitioner No.1 comes within the definition of `contempt of court. What is alleged against the non petitioners is that they have disobeyed the order passed in the second appeal. This is an allegation as to civil contempt and not of criminal contempt. Civil contempt has been defined in Section 2(b) of the Contempt of Courts Act, 1971, to mean wilful disobedience to any judgment, decree, direction, order, writ, or other process of a court or wilful breach of an undertaking given to a Court. There was no direction given in the second appeal to the non petitioner No.1 and therefore, the question of disobeying any direction of the Court does not arise. The petitioners themselves in their review application dated 31.7.2000 have stated that the non petitioner No.1 was not apprised of the orders dated 11.3.97 and 12.2.86 when he passed the order dated 19.7.2000. Thus, the allegation of wilful disobedience is not only absent in the case but has also not been supported by the petitioners. The petitioners themselves in their review application dated 31.7.2000 have stated that the non petitioner No.1 was not apprised of the orders dated 11.3.97 and 12.2.86 when he passed the order dated 19.7.2000. Thus, the allegation of wilful disobedience is not only absent in the case but has also not been supported by the petitioners. Negligently or inadvertantly signing orders prepared by the Reader may not be an appropriate conduct for a Judge but it would not amount to wilful disobedience of the order of the High Court. (19). So far as the non petitioner No.2 is concerned, the only allegation against him is that despite the fact of the order passed by the High Court being brought to his notice, he did not grant an ex parte stay of the order dated 19.7.2000. The explanation given by the non petitioner No.2 is that he wanted to verify whether the conditions on which a stay order could be passed, were fulfilled. Obviously, the officer cannot be blamed for not granting an ex parte stay order in favour of the plaintiff applicants. It is true that a smarter officer in his place would have bought peace by immediately withdrawing the order earlier passed, realising that it was absolutely redundant and unnecessary exercise undertaken by his predecessor in office, advertantly or inadvertantly. But being not smart enough, is not contumacy. There is no material on record to hold that the non petitioner No.2 intended to wilfully disobey or had wilfully disobeyed the order passed in second appeal by refusing to grant relief ex parte. In fact, there was no direction given to the lower court in the order and therefore, there was no question of wilfully disobeying any order. I do not find that there is any material on record to hold that the non petitioner No.2 has committed contempt of the court. (20). The petitioners have also prayed for staying order dated 19.7.2000 and 9.8.2000 and quashing them. By an interim order, stay was also granted by this Court. It is settled law that no fresh direction can be made in contempt proceedings. The prayer for quashing the orders is therefore, rejected and the stay order is vacated. The petitioners shall be free to take recourse to remedies available in law against the orders, if their grievance continues to exist. (21). It is settled law that no fresh direction can be made in contempt proceedings. The prayer for quashing the orders is therefore, rejected and the stay order is vacated. The petitioners shall be free to take recourse to remedies available in law against the orders, if their grievance continues to exist. (21). As a result of the aforesaid discussion, the contempt petition is dismissed. It is made clear that if the High Court decides to take administrative action against the non petitioners, on the basis of the facts involved in this contempt petition, it shall be free to do so as in the present case, only the matter relating to contempt of court is being decided.