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HIGH COURT OF CALCUTTA
CHAKRABARTI, S. R. DAS GUPTA
HEM BALA DASSI - Appellant
Versus
SUNDAR SHAW - Respondent
A. F. O. O. 166 Of 1951
Decided On : AUGUST 22, 1952
CONTEMPT OF COURT - PROCEDURE - NOTICE OF MOTION - PARTICULARS OF CONTEMPT - ENGLISH PRACTICE - APPLICABILITY TO INDIAN COURTS - RULES OF ORIGINAL SIDE, HIGH COURT OF CALCUTTA, CHAPTER XX, RULE 4 - SUFFICIENCY OF NOTICE - SERVICE OF NOTICE - PERSONAL SERVICE - SUBSTITUTED SERVICE - CRIMINAL CONTEMPT - PROCEDURE.
Fact of the Case:
The appellant, Hem Bala Dassi, brought a suit against Lalit Mohan Saha, which was Suit No. 2449 of 1948, and obtained a decree for ejectment. In 1949, the respondents, Sunder Shaw, Kaloo Shaw, Hira Shaw, and Nand Lal Shaw, who were sub-tenants of Lalit Mohan Saha, brought a suit for a declaration that they were tenants under the decree-holder and were not liable to be ejected in execution of the decree obtained by her against Lalit Mohan. The suit was disposed of by P. B. Mukharji, J. on 6-6-1950. One of the plaintiffs, Nand Lall Shaw, had never appeared and so far as he was concerned, the suit was dismissed with costs. As regards the remaining three plaintiffs, Sundar Shaw, Kaloo Shaw, and Hira Shaw, the suit was disposed of by consent on certain terms and one of the terms was that the said three plaintiffs gave an undertaking to the Court to vacate the rooms occupied by them within eight months from the date of the decree. The period of eight months expired on 6-2-1951. The appellant's case is that while Nand Lall Shaw vacated the premises, Sundar Shaw, Kaloo Shaw, and Hira Shaw did not but, on the other hand, while retaining possession of the rooms occupied by them in violation of the undertaking given to the Court, they caused certain betters to be written by a solicitor in which it was falsely stated that they had vacated the old rooms and taken possession of certain new ones in pursuance of a fresh agreement with the appellant.
Finding of the Court:
1. The notice of motion in a contempt proceeding must state the grounds of the application and a copy of the petition on which the notice is founded should also be served along with the notice, although it is not obligatory under Chap. XX, Rule 4 of the Original Side Rules. 2. Every attempt must be made to serve the notice personally, but in suitable cases the Court, on being satisfied that personal service cannot be effected, may make an order for an alternative form of service authorised by the Code of Civil Procedure, read with Rule 26 of Chapter VIII of the Criminal Side Rules and by Rule 11 of that Chapter. 3. The above rules would not apply to cases of purely criminal contempt where the application should be by a motion for an order 'nisi' or an order upon the respondent to appear and answer and which are dealt with by the summary process.
Issues: 1. Whether an appeal lies from an order refusing to commit for contempt or to entertain an application for such committal. 2. Whether the notice of motion in a contempt proceeding must contain the particulars of the contempt charged. 3. Whether the English practice of requiring the notice of motion in cases of attachment to state the grounds in general terms and to serve a copy of the affidavit intended to be used along with the notice applies to proceedings for committal in Indian Courts.
Ratio Decidendi: 1. An appeal lies from an order refusing to commit for contempt or to entertain an application for such committal, as such an order is a 'judgment' within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. 2. The notice of motion in a contempt proceeding need not contain the particulars of the contempt charged, as the Rules of the Original Side of the Calcutta High Court do not require it and the English practice of requiring such particulars in cases of attachment does not apply to proceedings for committal in Indian Courts. 3. The better procedure to be followed in contempt proceedings in the Original Side of the Calcutta High Court is to specify the act of contempt charged in the notice of motion and to serve a copy of the petition on which the notice is founded along with the notice, although it is not obligatory under Chap. XX, Rule 4 of the Original Side Rules.
Final Decision: The appeal was dismissed as against respondents 1, 3, and 4, Sundar Shaw, Hira Shaw, and Nandlal Shaw. It was allowed as against respondent 2, Kaloo Shaw, the order of Sinha, J., was set aside, and the case was remitted to the Court below for the motion to be heard and determined, as respects the said respondent, in accordance with law.
( 1 ) THIS case has been the occasion for an interesting debate on two important questions of procedure relating to proceedings for contempt of Court, in view of the importance of the issues and the somewhat unsettled character of the practice of the Court, we invited Mr. H. N. Sanyal to appear as an 'amicus curiae'. Mr. Sanyal readily responded to our request and we are grateful to him for the assistance he rendered.
( 2 ) THE points I have referred to arise out of the following facts: The appellant Hem Bala Dassi is the owner of premises No. 5, Ratan Sarkar Garden Street, Calcutta, which she let out to one Lalit Mohan Saha and Lalit Mohan, in his turn, sub-let the premises to a number of sub-tenants. Among the sub-tenants were the respondents to this appeal, Sunder Shaw, Kaloo Shaw, Hira Shaw and Nand Lal Shaw. In 1948, the appellant brought a suit against Lalit Mohan Saha, which was Suit No. 2449 of that year, and in that suit she obtained a decree for ejectment. In due course she attempted to execute the decree in the manner provided for in Order 21, Rule 35, Civil P. C. , but was resisted by the respondents who ultimately brought a suit for a declaration that they were tenants under the decree-holder and were not liable to be ejected in execution of the decree obtained by her against Lalit Mohan. That suit was Suit No. 910 of 1949 and it was disposed of by P. B. Mukharji, J. on 6-6-1950. One of the plaintiffs, Nand Lall Shaw, had never appeared and so far as he was concerned, the suit was dismissed with costs. As regards the remaining three plaintiffs, Sundar Shaw, Kaloo Shaw and Hira Shaw, the suit was disposed of by consent on certain terms and one of the terms was that the said three plaintiffs gave an undertaking to the Court to vacate the rooms occupied by them within eight months from the date of the decree. The period of eight months expired on 6-2-1951. The appellant's case is that while Nand Lall Shaw vacated the premises, Sundar Shaw, Kaloo Shaw and Hira Shaw did not but, on the other hand, while retaining possession of the rooms occupied by them in violation of the undertaking given to the Court, they caused certain betters to be written by a solicitor in which it was falsely stated that they had vacated the old rooms and taken possession of certain new ones in pursuance of a fresh agreement with the appellant.
( 3 ) ON 23-5-1951, the appellant took out a notice of motion which stated that on 4th June an application would be moved before Sinha, J. for an order, 'inter alia' that "the plaintiffs 1, 2 and 3 Sundar Shaw, Kaloo Shaw and Hira Shaw be committed to the prison for contempt of the Hon'ble Court. " That notice was served on Kaloo Shaw personally, but in the case of Sundar Shaw and Hira Shaw, it was served by affixation, as they were not found on the premises and as Kaloo Shaw refused to accept service on their behalf. When the motion appeared in the list of new motions on 4th June, an attorney appearing for the respondents informed the learned Judge that two of his clients had not been served, but he was not prepared to contend at once that, as against them, the application should be thrown out 'in limine' and only asked for an adjournment to consider his position. The learned Judge adjourned the motion to the 8th June. Thereafter, the appellant took out a fresh notice of motion, returnable on the 8th June, and served it personally on Sundar Shaw and Hira Shaw. That notice was the same as the previous notice, with only the date changed, and it contained a note to the effect that the learned Judge had directed copies of the application papers to be served on Sundar Shaw and Kaloo Shaw, though in fact no such direction had been given. No further application was made in connection with the fresh notice of motion.
( 4 ) EXCEPT the bare notice of motion, nothing else was served on the respondents. The notice merely stated that an order for committal to prison for contempt of this Court
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