Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 648 (CAL)

Akkas Sardar v. Nemai Chand Mondal

2014-07-18

ASIM KUMAR MONDAL

body2014
JUDGMENT Asim Kumar Mondal, J. This is an application for contempt of Court under the Contempt of Court’s Act in connection with S.A. No. 18 of 1987. The applicant in the present application as alleged that the appellant of S.A. No. 18 of 1987 has wilfully and deliberately and in continuous disobedience, violated the order passed by His Lordship the Hon’ble Justice J.N. Hore on September 1st, 1992. The order impugned was passed by His Lordship the Hon’ble Justice J.N. Hore as His Lordship then was in connection with S.A. No. 18 of 1987 in a proceeding for temporary injunction filed by the applicant who are the respondents of the appeal, restraining the appellant / contemnor from interfering with the cultivation and harvesting of the paddy on the suit land till disposal of the sale on condition that the applicants / respondent would deposit a sum of Rs. 1500/- in the Trial Court in favour of the appellant / contemnor. The case of the applicant in the present contempt petition is that the contemnor / respondent having full knowledge of the order of the hon’ble High Court harvested the entire paddy on December 12th, 2012 wilfully, deliberate and continuous disobedience of con-compliance of the order impugned and as such has violated the order of the Hon’ble Court. It is the further case of the applicant that applicant applied to Block Development Officer, Patharpratima Panchayat Samity and the local Police Station intimating that the contemnor was trying to harvest the crops from the suit property with the help of antisocials. As a result the authority concerned took resolution that the applicant may harvest the paddy of the said property and the police protection be given to them. One Dhananjoy Bairagi as a constituted attorney has affirmed the affidavit of the present petition on the strength of a power of attorney executed in his favour of Md. Amir Ali Sardar, Akkas Ali Sardar, Md. Kajem Ali Sardar and Arijanm Bewa. One Dhananjoy Bairagi as a constituted attorney has affirmed the affidavit of the present petition on the strength of a power of attorney executed in his favour of Md. Amir Ali Sardar, Akkas Ali Sardar, Md. Kajem Ali Sardar and Arijanm Bewa. The contemnor after being served with the copy of the Rule issued by this court appeared and filed affidavit-in-opposition denying the allegation of deliberate and wilful disobedience of the order passed by this court and raised the question as to the maintainability of the present petition in view of the provisions under the Contempt of Court’s Act in respect of Rules issued by the Hon’ble High Court and also the legality and validity of the power of attorney executed by four persons out of whom three persons died long back and substitution application already made before the High Court. So, the question of validity of the power of attorney is raised. The contemnor also states that he has recorded his name in respect of plot No. 2361 and 3313 measuring 21 decimals and 16 decimals respectively of the suit property and is possess the said land on the basis of patta granted by the Government of West Bengal in his favour. The conemnor also raised the question of legality of the authority concerned who passed the order in favour of the applicant regarding the police protection as well as the right, title and interest of the applicants in the disputed plots. The applicant filed affidavit in reply wherein he stated that he has applied the direction of High Court by depositing the amount as asked for and disputed the legality and the validity of the order granting patta of the Government in favour of the contemnor on the ground of constructive res judicata. Mr. Narayan Chandra Bhandary, learned Advocate appears on behalf of the applicant and submits that admittedly out of four persons who executed of the power of attorney, three have been died long back, but the power of attorney holder still have legal right to act on behalf of the applicant in view of decision of Hon’ble Guhati High Court reported in AIR 1972 (Gau) 122 in a case Sardar Bir Singh vs. Noor Ahmed. In the said case Hon’ble Court opined that power of attorney remain operative on behalf of the existing executors even on death of others. Mr. In the said case Hon’ble Court opined that power of attorney remain operative on behalf of the existing executors even on death of others. Mr. Bhandary submits that in the present case one Satyendra Nath Bairagi being the constituted attorney has affirmed the affidavit which should be considered as valid in view of the citation as referred above. It is further submitted that admittedly after filing of the contempt application and issuance of Rule by the court Akkas Sardar died. Under such circumstances the death of Akkas Sardar is less important as because the contempt of court depends upon the contemnor in one hand and Court in another hand. Mr. Bhandari further submits that the contemnor cannot applied for patta of the disputed land pending appeal preferred before this court. The question of res judicata would given in the right title and interest approved by contemnor on the strength of patta. Mr. Sabyachi Bhattacharyya with Mr. K.C. Sahoo appears on behalf of the contennor. Mr. Bhattacharyya submits that admittedly that one Saytendra Nath Bairagi affirmed the affidavit being a constituted attorney on the strength of a power of attorney executed by four appellants out of whom three have died long back. Mr. Bhattacharyya raised the question of validity, legality of the said power of attorney in the event of death of executors. Mr. Bhattacharyya also argued and submitted that in terms of the order impugned the respondents / applicant are to deposit Rs. 1,500/- in every year but same has yet not been complied with. Mr. Bhattacharyya also argued that there is no specific averments of alleged incident of harvesting paddy in support of contempt of Court petition in fact there is no particulars of act of the contemnor leading contempt / disobedience of the order of the Court. I have carefully considered the facts and circumstances as narrated in the petition for contempt of Court against the contemnor / appellant. I have also carefully perused the order passed by this court restraining the contemnor from interfering with the cultivation and harvesting of the paddy on the suit land. I have carefully considered the submissions advanced by learned Counsel for the applicant / respondent and also the contemnor / appellant. I have carefully perused the citation relied upon by the learned Counsel Mr. I have carefully considered the submissions advanced by learned Counsel for the applicant / respondent and also the contemnor / appellant. I have carefully perused the citation relied upon by the learned Counsel Mr. Bhandary reported in 1972 AIR (Gau) 122 in a case Sardar Bir Singh and others vs. Noor Ahmed wherein Court holds that in a power of attorney executed by some persons jointly to act on their behalf will remain interference even after death of some of the executrix and in the present of Single or two executors. In the instant case Mr. Satyendra Nath Bairagi affirmed the application on the strength of power of attorney executed by four respondents out of which three have been died and during the pendency of the hearing the last person also died. It is also admitted fact that substitution petition have already been filed and the heirs of the deceased respondents have been substituted. T he power of attorney in question was executed in favour of the Satyendra Nath Bairagi to represent on their behalf in the Court proceedings, filed affidavit, petition etc and other steps as will be required. The citation as referred by the learned Counsel Mr. Bhandary, the facts and circumstances of the case is not identical with the present case. In the said case the notice for eviction served upon the tenant was challenged as the notice was served by one constituted attorney on the strength of power of attorney executed by mother and two sisters. The mother died. The question arose on the occasion of death of mother. The said power of attorney will remain in force or not later Court held that will remain in force. The said power of attorney was in relation to the property in question. A notice was served upon the tenant in connection with the suit property in question for eviction. In the present case admittedly the alleged power of attorney was executed in a general form including the present case pending before this Court. The question is whether a person can represent before the Court on behalf of the a dead person. Admittedly the heirs have already filed petition for substitution and same has been done. There is nothing to show that heirs has delegate the power by executing a separate power of attorney in favour of the person who affirmed the affidavit in the present application. Admittedly the heirs have already filed petition for substitution and same has been done. There is nothing to show that heirs has delegate the power by executing a separate power of attorney in favour of the person who affirmed the affidavit in the present application. In my considered view under such circumstances Sri Satyendra Nath Bairagi who affirmed the affidavit is not a competent person to do so on the strength of power of attorney where admittedly out of four executors three persons died long back and substitution of heirs has taken place. In a contempt proceeding Court is to consider as a result as to whether the applicant has shown and disclosed any act of wilful disobedience of the judgment or order of the Court in order to support the prayer for punishment for contempt. Power to punish for contempt is to be resorted to when there is clear violation of Court’s order. Since notice of contempt and punishment for contempt is of far reaching consequence, thus powers should be invoked only when a case of wilful disobedience of the Court’s order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of the case. In the instant case as it appears that some plots involved in the litigation between the parties which are suit plots. So, it is clear that more than one plots are involved in the present litigations and the respondents / applicant claimed that they are in possession and cultivating the plots having right, title and interest therein. On the contrary the contemnor has averted that some of the plots are under his possession and he has given patta by the Government. The question of legality of the granting of patta by the Government is not to be adjudicated in the present petition. The applicant at para 12 of the application has simply stated that in spite of order of injunction granted by this Hon’ble Court, the contemnor with the help of anti socials harvested the entire paddy on 12.12.2012 knowing fully well of the Hon’ble Court’s order and as such has violated the order of the Court. This particulars in support of the allegation of wilful disobedience of the Court’s order is in my considered view not sufficient rather vague for holding the appellant to have committed contempt for violating the Court’s order. This particulars in support of the allegation of wilful disobedience of the Court’s order is in my considered view not sufficient rather vague for holding the appellant to have committed contempt for violating the Court’s order. There is nothing in the petition as to the time and plot numbers where from the paddy was harvested by the contemnor. In view of my discussion and findings I have no hesitation to hold that the application filed by the respondents alleging wilful disobedience of Court’s order has not been established beyond all reasonable doubts and as such I am of the view that jurisdiction in contempt should not be invoked in the present case. Thus, the petition stands rejected without costs. The application being C.P.A.N. No. 739 of 2013 is disposed of.