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2020 DIGILAW 594 (MP)

Ashok Lalwani v. Surendra Shrivastava

2020-05-20

ATUL SREEDHARAN, SANJAY YADAV

body2020
JUDGMENT 1. The petition under judgement has been filed u/s. 12 and 16 of the Contempt of Courts Act by the Petitioner, an Advocate practicing before this Court, against the Contemnor who, at the relevant point of time was the IV Additional District Judge, Katni. 2. The Petitioner filed a Civil Suit bearing No. 38-A/2012 for ejectment of his tenant and mesne profits. An ex part judgement and decree dated 05/08/2013 was passed in the civil suit by which, ejectment was granted on grounds of bonafide requirement and subletting of the premises. However, mesne profits were not granted. The Petitioner preferred a Civil Appeal being R.C.A No. 2700008/2014 against the said order. The tenant remained ex parte even after being served by way of publication in a daily newspaper. 3. It is the case of the Petitioner that at the time of final hearing, the Counsel for the Appellant submitted the synopsis along with a list of eight judgements with their photocopies annexed, explaining the law of mesne profits. According to the Petitioner, the Contemnor pronounced the judgement by partially allowing the appeal of the Petitioner but dismissed his claim for mesne profits. The Petitioner submits that the Contemnor, did not refer to all the eight judgements cited and tendered by the Petitioner instead, referred to only three judgements which are AIR1985 BOM 2002, AIR1977 SC 2270 and 2001 (1) MPLJ 547 . The Petitioner further states that the Contemnor has rejected his appeal in so far as mesne profits are concerned, by relying on two judgements which are AIR 1996 CAL 88 , 2006 (2) C.C.C (Bom) 600. 4. The Petitioner further states that he being an advocate courteously requested the Contemnor on 29/09/2018 to provide him with the above judgements the Ld. Presiding Officer is said to have openly and without hesitation expressed that he had not read the judgements, but had only relied on their tracers as available in the commentary on CPC. The Petitioner says that he was too shocked for words and requested the Contemnor for a photocopy of the traces but even that was not provide. The Petitioner further states that he requested the Contemnor on 29/09/2018 to take on record the list of judgements which has been cited and referred by him, which the court acceded to. 5. The Petitioner says that he was too shocked for words and requested the Contemnor for a photocopy of the traces but even that was not provide. The Petitioner further states that he requested the Contemnor on 29/09/2018 to take on record the list of judgements which has been cited and referred by him, which the court acceded to. 5. On account of the conduct of the Respondent, the Petitioner has alleged that the Respondent has indulged in contempt of court as he has dismissed the claim for mesne profits by ignoring the law laid down by the High Court of Madhya Pradesh and the Supreme Court which is binding upon the Respondent as per article 141 of the Constitution. The Petitioner further adds that the Ld. Presiding Officer, the Contemnor herein, deliberately disobeyed the verdicts of the High Court which were binding upon him and so, he has committed contempt. According to the Petitioner, the Contemnor by ignoring the judgements cited by the Petitioner and dismissing the 1st appeal based on traces of judgements taken from a commentary, has indulged in abuse of judicial authority. Under the circumstances, the act of the Contemnor is in violation of judicial discipline and amounts to contempt of his own authority/court. In short, the Petitioner wants the Contemnor to be punished for contempt of court for not having followed judicial discipline and for having ignored the eight judgements placed before the Contemnor by the Petitioner which the Contemnor ought to have considered while passing the order in the appeal filed by the Petitioner. 6. The Petitioner has placed before us several judgements, both of this court as well as the Supreme Court, on the basis of which he asserts that the Contemnor is guilty of having committed contempt of this Court and of the Supreme Court, in not following the binding precedents laid down therein. Firstly, the Petitioner has referred to the judgement of a three-judge bench of the Supreme Court in the Bhadrakanta Mishra Vs. Bhimsen Dixit,1971 ILR(Cut) 986. In this case before the Supreme Court, the Appellant was a member of the Superior Judicial Service of the state of Orissa and at the material point of time was officiating as Commissioner of Hindu Religious Endowments, Odisha. Bhimsen Dixit,1971 ILR(Cut) 986. In this case before the Supreme Court, the Appellant was a member of the Superior Judicial Service of the state of Orissa and at the material point of time was officiating as Commissioner of Hindu Religious Endowments, Odisha. While hearing a revision against the order passed by the Additional Assistant Commissioner of Hindu Religious Endowments, a judgement of the Odisha High Court passed in Bhramarbar Santra Vs. state of Orissa, by which the High Court had decided an identical matter as in the revision filed by the Respondent Bhimsen Dixit before the Appellant Bhadrakanta Mishra, was placed before the Appellant. The Appellant did not consider the judgement of the Orissa High Court passed in Bhramarbar Santra on the ground that an appeal has been filed before the Supreme Court and therefore it could be said that the issue decided by the High Court of Orissa was sub judice before the Supreme Court. The High Court of Orissa proceeded in contempt against the Appellant on account of his refusal to follow the law laid down by the High Court in Bhramarbar Santra's case. While holding the Appellant guilty of contempt, the High Court observed that the Contemnor was a senior judicial officer having already served for 23 years having been recruited as a munsif and had thereafter risen to the rank of District Judge and that his approach and attitude was actuated by bias. Thereafter, the High Court went on to admonish the Appellant in open court and directed him to pay Rs.300 as costs of the proceedings. 7. While dismissing the appeal filed by him, the Supreme Court held that the High Court had rightly arrived at the conclusion that the Appellant had deliberately avoided to follow the decision rendered by it by giving wrong and illegitimate reasons and that the conduct of the Appellant was "clearly malafide". The Supreme Court also held that the Appellant in that case had identified himself as a litigant and did not observe due detachment and decorum as a quasi-judicial authority. While giving the reasons as to why the Supreme Court had rejected the appeal filed by the Appellant, it held in paragraph 17, "our view that a deliberate and malafide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. While giving the reasons as to why the Supreme Court had rejected the appeal filed by the Appellant, it held in paragraph 17, "our view that a deliberate and malafide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contempt. It would not stifle a bonafide act of distinguishing the binding precedent, even though it may turn out to be mistaken". Thus, it is seen that in Bhadrakanta Mishra's case, the Supreme Court arrived at a finding that the conduct of the Appellant was not just deliberate but malicious also. In the present case, malice has not been attributed to the Respondent/Contemnor. 8. The next case referred to by the Petitioner is C. Venkata Swamy versus H.N. Shivanna (D) by L.R and another, (2017) AIR SC 5604 . This is a judgement more on the ambit and scope of the 1st appeal under the CPC and has precious little to do with the law relating to contempt. Thereafter, the Petitioner has referred to the judgement of the Supreme Court passed in East India Commercial Co. Ltd., Calcutta and Another Vs. the Collector of Customs, Calcutta, (1962) AIR SC 1893 . The Petitioner has drawn attention to paragraph 41 of the judgement where the question before the Supreme Court was whether an administrative tribunal can ignore the law declared by the highest court in the state and initiate proceedings in direct violation of the law. The Supreme Court went on to hold that the law declared by the highest court in the state is binding on authorities or tribunal's under its superintendence and that they cannot ignore it either in initiating a proceeding or deciding on rights involved in such a proceeding. Once again, this judgement does not deal as to how a non-reference to the judgement of the Supreme Court or the High Court may be construed as contempt. 9. The next judgement relied upon by the Petitioner is an order passed by the learned single judge of this court in Katua Patel and another Vs. State of MP, (2008) ILR(MP) 32 . In this case, the applicant was granted the benefit of anticipatory bail by this court with the liberty of securing a regular bail from the learned court below within a period of 60 days. State of MP, (2008) ILR(MP) 32 . In this case, the applicant was granted the benefit of anticipatory bail by this court with the liberty of securing a regular bail from the learned court below within a period of 60 days. The application for regular bail that was moved before the learned court below was rejected on the ground that the allegations are serious and that there existed sufficient evidence against the applicant. This court had taken note of the learned trial court not having followed the law laid down by this court in Chhotelal Rai Vs. state of Madhya Pradesh, (2007) 1 MPJR 117 . An explanation was called for from the lower court. The learned judge of the lower court stated that he was not aware of the above mentioned judgement and that it had not been placed before. In page 3 of the judgement, this court held "there is no explanation of the additional sessions judge in this respect as to why he failed to find out the referred case law from the library? Why did he not ask the advocates to show the citation which was referred in the bail applications? Why he failed to request the District Judge to make available the citation? Why he passed the order without perusal of the citation? Why he failed to write this fact in the orders that he tried his level best to find out the citation and the advocates also refused to produce the citation or its photocopy? All these unanswered questions clearly indicate that either the learned Additional Sessions Judge was of the view that whatever the higher courts decided, he is not bound by it or he was of the view that whatever he is doing, is correct and he is at liberty to give any finding irrespective of the principles laid down by the High Court and the Supreme Court or he thinks that he is above the law and whatever he wants, he can pass the orders without paying any heed to the laws or the principles laid down by the higher courts. If this was not the intention of the Additional Sessions Judge, then it can be presumed that the concerned Additional Sessions Judge does not want to take pains to know the latest legal position. If this was not the intention of the Additional Sessions Judge, then it can be presumed that the concerned Additional Sessions Judge does not want to take pains to know the latest legal position. This type of attitude amongst Judicial Officers is growing day by day which is highly improper and also alarming. A judge sits to impart justice and he has to make all efforts to do his pious duty of dispensation of justice". In this order, this court has only held what is the desirable course of action to be taken by the judge when a judgement of the Superior Court is cited before him. It does not deal with a situation as to whether proceedings of contempt can be initiated against the learned judge of the learned of the code below who fails to adverted to citations and judgements and discuss the same in his orders. 10. We have heard the Petitioner in person and perused the petition and the documents filed therewith and the record of the Appellate Court. The only reason that the Petitioner wants to have the Contemnor found guilty of contempt is on account of only 2 out of the 8 judgements placed by the Petitioner before the learned court below, been taken into consideration. According to the Petitioner, if a judgement of the Superior Court is placed before the learned trial court, then, if it does not consider the same and give reasons for rejecting it, it would be an act of contempt as the learned court below did not follow the explicit mandate of the higher court. We are unable to agree with the contention put forth by the Petitioner. The act of the Petitioner filing the present petition against the proposed Contemnor, a serving judge of the district judiciary on account of a judicial order passed by the proposed Contemnor by itself appears to be contumacious conduct. While deciding a case, a court can make errors and sometimes the errors may be, not referring to judgements cited by a party. Undoubtedly, a binding precedent is one that must be followed by the learned court below, be it of the Supreme Court or the High Court. While deciding a case, a court can make errors and sometimes the errors may be, not referring to judgements cited by a party. Undoubtedly, a binding precedent is one that must be followed by the learned court below, be it of the Supreme Court or the High Court. However, in those instances where the learned court below has failed to take into consideration judgements put forth by a party which may or may not be of a binding nature, judicial discipline requires that the learned court below refer to the said judgement and either follow it or reject it after distinguishing upon facts and circumstances. But to ignore the judgements altogether and not refer to them, would be undesirable. However, even that would not constitute contempt on the part of the learned trial court more so when there is no malice alleged against the learned court below. 11. In this case, if one goes by the averments made in the petition, it will appear that the Petitioner appeared in person before the Ld. Appellate Court also. However, a perusal of the Trial Court order sheets/record of proceedings, reflect that the Petitioner was appearing through his Ld. Counsel Mr. Vijay Mohan Pandey, whose name has consistently appeared in the order sheets as representing the Petitioner. 12. The final arguments before the Appellate Court took place on 11/09/2018. The case was fixed for orders on 25/09/2018. However, in the record of proceedings of 11/09/2018, the Court has recorded as L/o or Later On ^^vihykFkhZ }kjk lwph vuqlkj U;k; n`"Vkar ÁLrqr fd, x, ftUgsa vfHkys[k ij fy;k x;kA Ádj.k iwoZor fu.kZ; gsrq fnukad 25-9-2018A** From this 'later on' noting of the Ld. Appellate Court, it is crystal clear that when the case was being argued on 11/09/2018, the Ld. Counsel for the Appellant did not have the citations and neither the list, to be given to the Appellate Court and that the same was given after the arguments had concluded. If that be so, it would be safe to presume that the judgements in the list were never discussed by the Ld. Counsel for the Petitioner before the Ld. Appellate Court. If this Court is to go by the averment made by the Petitioner in paragraph 6 of this petition, then it was the Petitioner himself who had requested the Ld. Counsel for the Petitioner before the Ld. Appellate Court. If this Court is to go by the averment made by the Petitioner in paragraph 6 of this petition, then it was the Petitioner himself who had requested the Ld. Appellate Court on 29/09/18 to take on record the list of judgements along with the photocopies of the judgements which, the Ld. Appellate Court acceded to and entered the same under the 'later on' category in the record of proceeding by entering it below the order passed on 11/09/2018. Thus, by the Petitioner's own submission the list and judgement were given on 29/09/18 i.e., four days after the final order was passed in the appeal on 25/09/18. However, this seems to be incorrect as on perusing the Trial Court record, it appears that the list along with the judgments bear the signature of the Petitioner dated 11/09/2018. Even otherwise, it appears that the 'later on' entry relating to the submission of the list and judgements only after the conclusion of the arguments is correct as one of the judgements in the list has been considered by the Ld. Appellate Court in its final order dated 25/09/2018 which is only possible if the Court was seized of these judgement on 11/09/18. 13. A court cannot be held to have committed contempt only because it did not take into consideration, the judgements cited before it by the parties. This acquires great significance where in a case like the present one, where no malafide these have been urged against the judge in question. Further, where the judgments not been placed before the Ld. Appellate Court during the course of final arguments, where their relevance and the law enunciated therein have not been brought to the notice of the Ld. Appellate Court, it is not reasonable to expect the Judge to do the impossible of trying to decipher the context in which the cases have been cited when the Ld. Counsel for the Appellant himself had failed to bring these judgements to the notice of the Ld. Judge in the course of the arguments. 14. Appellate Court, it is not reasonable to expect the Judge to do the impossible of trying to decipher the context in which the cases have been cited when the Ld. Counsel for the Appellant himself had failed to bring these judgements to the notice of the Ld. Judge in the course of the arguments. 14. Thus, we are the opinion that the omission on the part of the learned court below in not having examined and considered the judgements placed before it by the Petitioner, appears to have been on account of the judgements having been given to the Court after final arguments were made and there is nothing to show that the significance of these judgements with reference to the facts of the case have been placed before the Ld. Judge in the course of the arguments. Under the circumstances we reject the petition for proceeding in contempt against the proposed Contemnor. 15. The conduct of the Petitioner compels us to examine whether the Petitioner was justified in filing the present petition. It is the duty of the learned members of the bar to ensure that frivolous cases are not filed against the judges of the District Judiciary with a view to overawe and cow them down. This petition has been filed by the Petitioner has been done precisely for that purpose. If this kind of conduct is not nipped in the bud, it may send a wrong message that the judges of the District Judiciary can be browbeaten by filing such petitions, 16. Recently, the Supreme Court in Suo Motu Contempt Petition (Criminal) No.2 of 2019 - In re Vijay Kurle,2020 SCCOnLine 407, vide its order dated 27/04/2020, came down heavily on the Contemnors for having levelled scurrilous allegations against two sitting judges of the Supreme Court. In paragraph 68, the Court held "The relationship between the Bench and the Bar should be a cordial relationship with mutual respect for each other. Lawyers who try to browbeat or threaten judges have to be dealt with firmly and there can be no ill-founded sympathy for such lawyers. Such lawyers do nothing to help the legal fraternity much less the Bar". The Petitioner is an advocate with about 40 years standing at bar and this kind of conduct was not expected from. His seniority at bar makes him a benchmark, a beacon for juniors to follow. Such lawyers do nothing to help the legal fraternity much less the Bar". The Petitioner is an advocate with about 40 years standing at bar and this kind of conduct was not expected from. His seniority at bar makes him a benchmark, a beacon for juniors to follow. It is therefore extremely unfortunate that the Petitioner filed the present petition where, only on the grounds mentioned hereinabove, he sought that the Respondent/Contemnor be tried and punished for contempt of court. We denounce the act of the Petitioner in no uncertain terms. We do not propose to proceed against him for contempt as no such notice was issued to him. However, we only consider it fit in the facts and circumstances of this case to impose a cost of Rs.7000 upon the Petitioner while dismissing this petition. The Petitioner shall deposit the cost into the account of the High Court legal aid services authority within 30 days of this order. This petition is dismissed.