Md. Amir Ali Sardar vs Nemai Chand Mondal and Another

Rabin Bhattacharyya, J.—The petitioner-respondent has preferred application under the Contempt of Courts Act, 1971, for committing the appellant-opposite party for contempt and for taking appropriate action against him by the reason of flouting the order passed by my learned brother Hon''ble Mr. Justice J.N. Hore on 1.9.1992.

Bereft of details, the facts of the case are that the appellant-opposite party No. 1 filed a suit for declared on of title alongwith ancillary reliefs before the learned court of Munsiff. The trial court decreed the claim in part against which an Appeal being Title Appeal No. 204 of 1983 was initiated by the petitioner-respondent of this Appeal as a defendant-appellant before the 1st Court of Appeal.

The aforenoted Appeal, however, succeeded and the Appeal decreed. The Court of the 1st Appeal, however, dismissed the suit when the instant Appeal arose for reversal of the judgment and decree of the Court of Appeal.

During the currency of the instant Appeal before the High Court, the petitioner-respondent filed an application for temporary injunction which was allowed as indicated above by my learned brother on 1.9.1992. My learned brother passed an order to the effect, "the appellant is temporarily restrained from interfering with the cultivation and harvesting of the paddy on the suit land till the disposal of the Appeal."

The petitioner-respondent was constrained to file the instant application for contempt on 5.4.93, on the ground that the appellant-opposite party wilfully disobeyed the order as the appellant-opposite party cut away the paddy on 18.11.92, grown by the petitioner-respondent on the land in suit.

The appellant-opposite party, in short, has contested, the claim of the petitioner-respondent. He is very much shrill to the claim of the petitioner soliciting contempt on the ground of violation of the Court''s order. Another side fact has been pleaded about the absence of knowledge of the order dated 1.9.92,

Apart from the above, the appellant-opposite party has sought for unqualified apology of the Court if any of his dealings constituted wilful and deliberate violation of the order.

The point for decision is as to whether a contempt proceedings could be drawn up in the face of the allegations and whether the application is maintainable.

Mr. Majumdar, the learned Advocate, appearing in support of the application for contempt, has taken me through the order dated 1.9.92 to ground his claim. The pivotal controversy between the parties is about the alleged harvesting of paddy by the appellant-opposite party which has been disputed and denied by the adversary of the petitioner-respondent.

The main stay of his argument is that the petitioner-respondent grew the paddy on the land in suit. It is none but the appellant-opposite party who on 18.11.92 forcibly harvested the paddy and who had notice of the order.

The above, according to Mr. Majumdar, constituted culpable contempt for the order of the Hon''ble Court being deliberately violated by the appellant-opposite party. According to Mr. Majumdar, the appellant-opposite party is a conscious transgressor of justice.

In developing the argument, he has strongly contended that the order of the Hon''ble Court, since consciously violated, has brought the Court into disrepute. He has argued with sagacity that the appellant-opposite party has scant regard for the dignity of the courts of law and orders passed by the courts and willingly and fully, obstained from obeying the order for which he cannot escape the punishment. The confidence reposed by the public at large in court has been frustrated by the behaviour and conduct demonstrated by the appellant-opposite party.

To dislodge the argument, Dr. Mondal has canvassed that it is a petulant vanity for the petitioner to cry or crave for a court action for contempt under the contempt of Courts Act, 1971 as the claim offends the contempt of court rules framed by the Calcutta High Court.

To grasp the viability of the claim, it seems that there is a minor infraction of the said rule. But that itself alone does not assume any significance. It according to Dr. Mondal, is of secondary importance. It is the substance which must precede the rule. The Court cannot stand and wait to see its judgments, decrees and orders are being flouted by a party to the lis and wants to escape the punishment on the plea of technicalities. Technicality, in such circumstances, cannot stand as a bar.

In my view, dignity of the court cannot be allowed to be guillotines at the alter of technicalities. Therefore, I cannot accept his contention on this count.

In. the next place to enrich his claim Dr. Mondal invites the pointed: attention of the Court to examine the truth of the allegations surrounding the circumstances.

The petitioner, according to him, has made a lofty claim of illegal harvesting which in effect comes within the fold of "theft," an offence apart from the violation of the order of the court, comes within the sweep of the Indian Penal Code. It hovers doubt about the virginity of the claim as the action of the petitioner-respondent in the situation he was placed appears to be that of an on looker. He took the role of a passive spectator which strikes at the very route of his claim. It smacks of suspicion, as it appears that he sat on the fence and bode time.

Incidentally, the paddy harvested appears to be of considerable worth and inaction of the petitioner against the highhanded illegal activity of the appellant-opposite party till date does not countenance the claim of the petitioner-respondent as true. It has been well settled by imperial judicial decisions that the court is vested with power to inflict punishment for contempt which is (sic) generis. But where, as here, the violation complained of when dwells on suspicion, the Court should be extremely slow to issue contempt. The judicial decisions galore that power should be sparingly exercised. It should be exercised with great care and caution.

Dr. Mondal, to intensify his claim has contended that the appellant- opposite party had no knowledge of the order. He has frankly made a submission that he did not convey any information to his client about the order dated 1.9.92. It is a submission made from the bar for which due regard must be given by a court of law. It is trite saying that the party when is not aware of an order passed by a court, its violation does not amount to any contempt. To attract contempt, wilful disobedience is essential. The appellant-opposite party has pleaded ignorance to which I cannot but give credence.

Moreover, the appellant-opposite party in his objection has sought for unqualified apology before this court if any of his dealings amount to wilful and deliberate violation of the order dated 1.9.92. This is undoubtedly, in important factor which a court of law should not ignore. Therefore, there is no merit in the application. Accordingly, I cannot accept the contentions of Mr. Majumdar, as I do in respect of the contentions of Dr. Mondal.

Accordingly, the application for contempt dismissed and the objection upheld.

Considering the circumstances, I do not award any cost.