Bir Bhan and another vs Ram Lal Sharma and another

Man Mohan Singh Gujral, J.—In this petition a rule was issued to the Executive Magistrate First Class, Mansa, and Kaur Sain to show cause why they should not be committed for contempt. The circumstances under which the notice Was issued may be first surveyed. Respondent No. 2 Kaur Sain was a tenant of a shop situated in Mandi Budhlada which originally belonged to one Roshan Lal. Subsequently this shop was purchased by Pushpa Devi wife of Bir Bhan and Satya Devi wife of Om Parkash by means of a registered sale deed executed on 4th July, 1969. It is alleged in the petition that the vendor had obtained possession after paying pugree to Kaur Sain and had delivered vacant possession to the wives of the two petitioners. Subsequently, however, Kaur Sain lodged a report with the police that the petitioners had committed trespass by taking forcible possession of the shop on the night of 27th September, 1969 and on the basis of this report a case u/s 448 of the Indian Penal Code was registered at Police-Station, Budhlada. Not satisfied with this Kaur Sain also made an application u/s 145 of the Criminal Procedure Code in the Court of respondent No. 1 who was posted as Executive Magistrate First Class, Mansa, in those days A preliminary order was issued in this case on 30th October, 1969. After following the procedure laid down in Section 145 of the Criminal Procedure code respondent No. 1 passed the final order on 3lst July, 1970 holding that Kaur Sain had been wrongly dispossessed from the property in dispute within two months prior to the passing of the preliminary order and directing the Station House Officer, Budhlada to restore the possession of the shop to Kaur Sain respondent No. 2. Before possession could be delivered to Kaur Sain the vendees Sled a suit in the Court of the Subordinate Judge First Class at Mansa on 21st August, 1970 claiming a declaration that they were owners in lawful possession of the shop A permanent injunction was also prayed for restraining Knur Sain respondent from taking forcible possession of the shop In this suit the vendees also made an application for the grant of a temporary injunction which was allowed and by order dated 21st August, 1970 the Civil Court at Mansa restrained Kaur Sain from taking forcible possession of the shop Not deterred by this order Kaur Sain approached the Station House Officer, Police Station, Budhlada, and brought him to the shop in order to obtain possession in obedience to the orders of the Executive Magistrate dated 31st July, 1970. The petitioners who were present there brought the order of the Civil Court to the notice of the Station House Officer who then went back without delivering possession and made a report to respondent No. 1 about the stay order and his inability to deliver possession, Even after coming to know that a Civil Court had stayed dispossession of the vendees respondent No. 1 by order dated 25th August 1970 directed the Station House Officer, Pudhlada, to restore possession of the shop to Kaur Sain by force, if necessary, and to report compliance of this order. As a conse quence of this order Kaur Sain was put into possession of the shop on 26th August, 1970. The petitioners considering the order of the Executive Magistrate dated 25th August, )970 to be in disregard of the orders of the Civil Court have moved this Court for committing both the respondents for contempt.

The respondents have appeared and have filed their affidavits by way of reply. respondent No. 1, Shri Sbarma, has also filed his supplementary affidavit tendering unqualified apology.

In the affidavit filed by Shri Sharma, with regard to the passing of the order dated 25th August, 1970 it is stated as under:

Paras 10 and 11 of the petition are admitted, but for further clarification the following ''acts are submitted:

The orders of the Civil Court were not directed to me and did not restrain the delivery of lawful possession to Kaur Sain which was delivered on 26th August, 1970, in a peaceful manner. It is further submitted that there was no mention about my decision u/s 145 Criminal Procedure Code either in the plaint to the Civil Court or in petitioners'' application under Order 39 Rule J or in the order of the Civil Court i.e. dated 21st August, 1970 The Civil Court had only restrained Kaur Sain from forcibly dispossessing the petitioners from the disputed shop till further orders. The possession which was delivered to Shri Kaur Sain because of my order dated 25th August, 1970, was not forcible but was in accordance with law in compliance of my orders u/s 145 Criminal Procedure Code. I had never been restrained by the Civil Court from getting the possession restored to Shri Kaur Sain in accordance with law.

It is further submitted that the petitioners had preferred a revision against my orders dated 31st July, 1970 to the District Magistrate and an ex parte stay order was obtained by them on 12th August, 1970 which was subsequently vacated by the learned District Magistrate on 20th August, 1970 after hearing the parties." It was further admitted that possession had been delivered to Kaur Sain in compliance with order dated 25th August, 1970 but it was stated that possession had been delivered in accordance with law and the respondent had not committed any contempt. Kaur Sain also in his reply admitted having obtained the possession and that a stay order had been passed. It is, however, added that possession had been delivered to respondent No. 2 peacefully and no force was used.

It has been stated at the bar on behalf of the respondents and this fact is not denied by the petitioners that against Kaur Sain proceedings under Rule 2 (3) of Order XXXIX have been Instituted by the vendees and that those proceedings were pending in the Court of the Subordinate Judge with regard to the interim Injunction. The petitioners having made use of the alternative remedy which is available to them I am not inclined to commit respondent No. 2 for contempt in this case. Proceedings under the Contempt of Courts Act are of a summary nature and considering that alternative remedy has been availed of by the petitioners I do not propose to take action so far as respondent No. 2 is concerned. The rule against him is, therefore, discharged.

On behalf of respondent No. 1 while admitting that order dated 21st August, 1970 was in his knowledge the mainstay of the argument is that somehow this respondent interpreted the order of the Subordinate Judge as not directing the criminal Court not to deliver possession in accordance with the provisions of Section 145 of the Criminal Procedure Code. It was also mentioned that the petitioners had first approached the District Magistrate and had obtained a stay from that Court but later on that stay had been vacated and on account of that respondent No. 1 somehow got the impression that inspite of the order of the civil Court directing that the vendees were not to be dispossessed forcibly he formed the view that possession could be delivered to Kaur Sain in accordance with the provisions of Section 145 of the Criminal Procedure Code. It is stated that even If this view taken by respondent No. 1 was not wholly correct, his act would not amount to contempt of Court. Support for this argument was sought from the observations made in S.S. Roy v. State of Orissa AIR 1969 S.C. 190 and R. Narapa Reddy Vs. Jagarlamudi Chandramouli and Others, .

In S.S. Roy''s case (supra) a first Class Magistrate had without any justification and illegally made an order u/s 144 of the Criminal Procedure Code restraining a peon of a civil Court from executing a warrant of arrest issued by an Additional Munsif in respect of the execution of a money decree. It was, however, found that the Magistrate had not been influenced by any extraneous consideration or dishonest motive in making that order even though the order was considered to have been without jurisdiction and wholly misconceived On these facts the following observations were made by the Supreme Court:

The error must be a wilful error proceeding from improper or corrupt motives in order that he may be punished for contempt of Court. On the facts found, the appellant can certainly be said to have acted without proper care and caution but there nothing on the record to suggest any wilful culpability on his part and it has been expressly held by the learned Judges of the High Court that he was not actuated by any corrupt or dishonest motive In these circumstances, we think that the order passed by the High Court cannot be supported. The appeal is accordingly allowed, the judgment of the High Court is set aside and the fine, if paid, by the appellant, will be remitted.

The ratio of the above observations appears to be that as the Magistrate had not acted under the influence of any extraneous consideration or dishonest motive action under the Contempt of Courts Act was not proper remedy. It is not sufficient to find that the Magistrate had acted without proper care and caution in order to punish him for contempt. It has further to be shown that he had been motivated by extraneous considerations. The same view was taken in R. Narapa Reddy''s case (supra) by the Andhra Pradesh High Court. In that case in a writ petition the High Court had passed an order directing that election to the Board of Directors of the Guntur District Co-operative Marketing Society be held by the Joint Registrar of Cooperative Societies other than the one having jurisdiction at Guntur. In accordance with this order the Registrar appointed Joint Registrar of Cooperative Societies as an election officer. A member of the society, however, filed a suit in the Court of the District Munsif, Guntur, impleading the Joint Registrar (the election officer) as the sole Defendant. In that suit the District Munsif issued an interim injuction restraining the Joint Registrar from conducting the election scheduled to be conducted on 11th November, 1964. When the order was served on the Joint Registrar he refused to hold the election and the majority of the general body also left the place but some members of the minority group elected the governing body. A rule was then obtained against the District Munsif, the member who had filed the suit and the other members who had held the election on the allegation that they had committed contempt of the High Court by disobeying the order passed in the writ petition. On these facts while considering the case of the District Munsif it was observed as follows:

The munsif might have acted without due care and caution but there was no basis for the allegation made against him that he was motivated by extraneous considerations in passing the order which be did, and there was certainly no warrant for attributing any improper or corrupt motives to him. He was therefore not guilty of contempt.

The above observations also show that a mere careless act is not sufficient to bring the conduct of the Magistrate within the ambit of Section 3 of the Contempt of Courts Act. It has also to be established that his act was based on considerations which were extraneous and were not honest. Viewing the facts of the present case in the light of the above observations, I find that there was no allegation that the Sub Divisional Magistrate had acted on extraneous considerations or from improper motive. Considering that neither in the suit filed by the wives of the petitioners nor in the order there was any reference to the proceedings u/s 145 of the Criminal Procedure Code it can also be plausibly argued on behalf of respondent No. 1 that the stay order did not relate to the delivery of possession under the proceedings u/s 145 of the Criminal Procedure Code and that he had not been directed not to deliver possession. This impression may not be wholly correct but it cannot be said that by taking this view the Sub Divisional Magistrate had acted improperly or for extraneous considerations. Having regard to the circumstances of this case I find that no case for punishing respondent No. 1 for contempt has been made. I, therefore, discharge the rule and dismiss the petition.