S.P. Mitra, J.@mdashThis is an application on behalf of the Official Receiver of this Court inter alia for an order that the respondent No. 1, Farrukh Sayer, the respondent No. 2 Khaleda Sultana, the respondent No. 3 Tahera Sultana and the respondent No. 4 J.C. Roy be committed to prison and be dealt with according to law for having committed contempt of this Court as mentioned in the petition herein. It would be necessary to set out some of the allegations in the petition of the Official Receiver. By an order dated the 28th August, 1958 on the application of the plaintiff decree-holder in execution of the decree passed in this suit against the defendant Farrukh Sayer the Official Receiver was appointed Receiver in execution inter alia, over premises No. 141, Howrah Road in the town of Howrah. The order was made by G. K. Mitter, J.; but this application has been specially assigned to me by the learned Chief Justice. G. K. Mitter, J., was pleased to grant leave to the petitioner that is the Official Receiver to act on a signed copy of the minutes. In pursuance of this order the petitioner sent his representative, one Motilal Haldar, an Assistant of the petitioner, one Waziuddin, a Durwan of the petitioner and one Dhananjoy Chatterjee, an Officer of the petitioner to premises No. 141, Hcwrah Road in Howrah on the 30th August, 1958 at about 12.30 P.M. They were also accompanied by the plaintiff Hari Kissen Khettry and one Satyendra Prasanna Bose, a clerk of the plaintiff''s solicitors, Messrs. N. C. Bose & Co.
2. Upon reaching the premises the persons above named found the gate closed from inside. They knocked at the gate when it was opened. They then entered the premises and enquired of the Durwan about the defendant. The Durwan showed to them the office in the premises and requested them to see the defendant''s manager in the office. When they came to the office the plaintiff identified J. C. Roy, the respondent No. 4 as the defendant''s manager whereupon the petitioner''s representative Motilal informed J. C. Roy of the object of their visit, Motilal showed to J. C. Roy the order of this Court dated the 28th August, 1958 and a copy of the tabular statement upon which the order was made and also intimated to him the purport of the order. Motilal requested J. C. Roy to make over possession of the premises including the moveables and machinery in terms of the order. On going through the order and the tabular statement J. C. Roy said that the defendant was out. He refused to give any assistance in the matter of making over possession of any of the properties. Upon being asked by Motilal, J. C. Roy also refused to record anything in writing. Motilal thereupon wanted to have instructions from the the petitioner over the telephone and requested J. C. Roy to allow him to use the telephone of the premises. But J. C. Roy said that the telephone was out of order. At that time the plaintiff in order to receive advice from his solicitors went out of the factory to use some other telephone. After some time Satyendra Prosonno Bose also went outside the premises.
3. Although about half an hour had passed the plaintiff or Satyendra Prosonno Bose did not return and the representative officer and Durwan of the petitioner waited inside the premises. During this period the telephone of the premises rang and the Manager responded to the call. Thereupon Motilal asked J. C. Roy to permit him to use the telephone as it was quite in order. Motilal contacted and talked to the petitioner. The petitioner advised him to take symbolic possession on the identification of the plaintiff in respect of the moveable assets as the defendant was not present. But neither the plaintiff nor Satyendra Prosonno Bose returned to the premises. Motilal being suspicious went to the main gate to enquire about them and found the gate locked from inside. Motilal came to know from the Durwan that neither the plaintiff nor Satyendra was allowed to enter the premises and they were waiting outside for some time past. Inspite of Motilal''s request the durwan refused to open the gate. Motilal brought this fact to the notice of J. C. Roy and requested him to allow the plaintiff and Satyendra to enter the premises or to allow Motilal, Dhananjay and Waziuddin to go out of the premises. J. C. Roy replied in a threatening, contemptuous and humiliating tone that the factory was then closed and the gate would be opened on the following Monday that is on the 1st September, 1958. He gave the impression to the petitioner''s men within the premises that they would be detained till Monday. Motilal asked for an explanation but there was no reply from J. C. Roy.
4. Motilal then went near the gate and in a loud voice requested the plaintiff and Satyendra to arrange for the rescue of Motimal Dhananjay and Wazizuddin. After some time the plaintiff and Stayendra came back with two constables and two officers of the local police station. Even at the request of the police the durwan did not open the gate at the instruction of J. C. Roy. Thereupon after some time the Officer-in-charge of the Police Station came to the spot with a considerable number of constables and had to break open the gate. The Officer-in-charge arrested several persons including J. C. Roy. They all went to the Police Station where diaries were made. The petitioner''s men in the circumstances failed to take possession and came back.
5. On the 11th September 1958, G. K. Mitter, J. made an order on the plaintiff''s application, inter alia, to the effect that the Superintendent of Police, Howrah, be directed to give adequate police force to the officers of the petitioner who would be deputed to take possession of the premises.
6. I shall now come to the facts alleged in the petition which are more relevant for my purposes. On the 1st October, 1958 the petitioner deputed Motilal Haldar, one Asoke Roy and one Probodh Roy being the officers of the petitioner and two office durwans, namely, Israil and Waziuddin who along with the plaintiff went to the Golabari Police Station and requested the Officer-in-charge to give them necessary police help for taking possession of the premises in terms of the order of this court dated the 28th August, 1958.
7. The representatives of the petitioner and the plaintiff with police protection then went to premises No. 141, Howrah Road. They entered the premises by the main gate which was opened by the durwan and met Bejoy Krishna Boral a clerk to Sovendra Nath Ghose, a solicitor of this Court. No body was present on behalf of the defendant. Bejoy showed to Motilal and the others a portion of a certified copy of a decree together with an Award and a copy of a plaint and stated that the Western portion of the premises belonged to Khaleda Sultana and Tahera Sultana, sisters of the defendant Farrukh Sayer and objected to the petitioner''s representatives taking possession of that portion of the premises. Bejoy stated further that the entire first floor in the eastern portion together with one bath-room and stair-case were in the occupation of his masters'' clients and requested the petitioner''s men not to disturb or interfere with their possession. On enquiries Motilal was told by Bejoy that the said clients were occupying the first floor of the eastern portion without payment of any rent and they were allowed by their brother Farrukh Sayer to stay in the premises. Bejoy also stated that the moveables in the western portion were the properties of the said clients and there might be some moveables belonging to the defendant but since the key was not there, it was not possible for him at that time to describe the particulars of the moveables belonging to the said clients and to the defendant. The petitioner''s representatives came to learn from Bejoy that the keys of the rooms where the moveable were lying were with Sovendra Nath Ghose and a date might be fixed with the solicitor for the purpose of making an inventory of the movables belonging to the defendant. At the plaintiff''s request the locked rooms and the sheds in the eastern portion were sealed. An inventory was prepared of the moveables in the Manager''s Office room and the room on the southern side of the premies used by the durwans. Israil and Waziuddin were posted in the premises to look after the sealed properties and the movables on the western portion. The petitioner took only formal possession of the premises.
8. By his letter dated the 1st October, 1958 addressed to the petitioner, Sovendra Nath Ghose under instructions from his clients Khaleda and Tahera alleged that his clients were the owners of the western portion of the premises and the eastern portion belonging to the defendant with the factory, business and everything connected therewith as well as other properties of the defendant were firstly charged in favour of his clients and the defendant''s other sisters under the decree for payment of the amount payable by the defendant to his sisters. Sovendra Nath Ghose alleged further that his clients were in occupation of the entire upper floor of the eastern portion of the premises.
9. The petitioner has referred to the correspondence that followed with Sovendra Nath Ghose. The keys in respect of the rooms in the western portion are in the custody of Sovendra Nath Ghose who acting under instructions from his clients, has failed or neglected or refused to make over possession of the keys to the petitioner. Although Bejoy Krishna Boral stated on the 1st October, 1958 that Sovendra Nath Ghose would appoint a date with the petitioner when the rooms would be opened by him for the purpose of an inventory of moveables lying therein, he did not make any appointment. As regards the eastern portion of the premises the petitioner''s representative found on the 1st October, 1958 that all the sheds and office rooms on the ground floor of the main building were under lock and key except the Manager''s office. The petitioner took only formal possession of the premises because of the wrongful objection of the respondents, their agents and servants. The petitioner craves reference to the Minutes of Motilal Haldar dated the 30th August, 1958, and the 1st October, 1958 copies whereof have been annexed to the petition.
10. It is apparent the petitioner alleges, from the conduct of the agents and servants of the respondents that the defendant and his two sisters Khaleda and Tahera in collusion and conspiracy with each other deliberately prevented the petitioner''s representatives on the 1st October, 1958 from taking possession as directed by the order of this Court dated the 28th August, 1958. It is quite apparent that the defendant pre-arranged the whole thing. It is further apparent that the defendant himself or his Manager intentionally absented themselves on the 1st October, 1958 but they wilfully and surreptitiously allowed Bejoy Krishna Boral to resist the petitioner''s representatives from taking possession of any of the moveables lying there.
11. The petitioner alleges further that it is quite apparent that the respondents are trying to practice a fraud upon this court to prevent the petitioner from carrying out the order dated the 28th August, 1958.
12. When this matter came up for hearing before G. K. Mitter, J., his Lordship directed a trial on evidence. A large number of issues was raised before me by learned counsel on behalf of the respondent No. 4 J. C. Roy. Farrukh Sayer the respondent No. 1 was first appearing in person. He represented to me that he did not have the financial resources for engaging a lawyer. At my request Mr. Sovendra Nath Ghose solicitor, and Mr. Ajit Sircar, learned counsel who were appearing for Khaleda Sultana also agreed to represent Farrukh Sayer. To start with, all the respondents were contesting this application. After a few days of hearing Mr. B. K. Ghose appeared as the leader of Mr. Sircar. Mr. Ghose tried his best to bring about a settlement of this matter and I have to record my deep appreciation of the efforts made by Mr. Ghose in this behalf. Ultimately, Mr. Ghose submitted to me that the respondents Farrukh Sayer and J. C. Roy were willing to express regrets and offer their unqualified apologies. But the respondent Khaleda Sultana was not willing to do. I have accepted the unconditional apologies of Farrukh Sayer and J. C. Roy and have directed them to pay the costs of the application as of a hearing to the Official Receiver and to the plaintiff up to the date of their tendering apologies. The application then proceeded against the respondent Khaleda Sultana alone. Tahera Sultana, the respondent No. 3. I was told, was not in this country at the moment and Mr. Gouri Mitter, learned counsel for the Official Receiver as well as Mr. Banerjee, learned counsel for the plaintiff said to me that they did not intend to pursue this application against her. I have therefore to examine the petitioner''s case against Khaleda Sultana. The following issues were raised on her behalf:
1. Did the order dated the 28th August, 1958 direct the Official Receiver to take possession of the moveable properties in premises No. 141. Howrah Road?
2. Was the order dated the 28th August, 1958 served on the respondent No. 2, Khaleda Sultana?
3. Were the keys in respect of the rooms over which the petitioner''s men have put a seal in the custody of Sovendra Nath Ghose, solicitor or did Bejoy Krishna Boral make any representation as alleged in paragraph 19 of the petition?
4(a). Did the Official Receiver demand the possession of the keys frcm Sovendra Nath Ghose?
(b) Did Sovendra Nath Ghosh fail to make over the keys to the petitioner as alleged in paragraph 19 of the petition? If so. did Sovendra Nath Ghose wrongfully obstruct the petitioner to make an inventory of the moveables lying in the premises?
5. Did Bejoy Krishna Boral make the statement as alleged in paragraph 20 of the petition?
6. To what relief, if any, is the petitioner entitled?
13. In addition to these issues learned counsel for Khaleda Sultana adopted some of the issues raised on behalf of the respondent J. C. Roy. These issues are as follows:
1. Has this Court jurisdiction to try this application in its Ordinary Original Civil Jurisdiction?
2. Is the application maintainable having regard to the grounds stated in paragraph 3 of the affidavit of Jogesh Chandra Roy affirmed on the 25th April, 1959?
3. Has the petition been verified in accordance with law (High Court Rules, Chapter VII, Rules 8)?
4. Is the application bad for misjoinder of parties and charges?
14. Of these issues arguments were advanced to me by Mr. B. K. Ghose on issues Nos. 1 and 2 only. In paragraph 3 of the affidavit of Jogesh Chandra Roy affirmed on the 25th April, 1959, he submits that no rule nisi having been obtained by the applicant from this court, this application is not maintainable. He submits further that the application for committal for alleged contempt in this case can only be instituted in a separate proceeding and not merely in this suit and as such this application can not be entertained by this Court.
15. On these two issues raised on behalf of J. C. Roy Mr. B. K. Ghose, learned counsel for Khaleda Sultana relied on part 14 of Chapter XXXVIII of the Original Side Rules which is as follows:
In every application for proceedings in Contempt, it shall be stated at the top that the jurisdiction invoked is ''Special Jurisdiction'' of the Court and that the subject-matter is ''Contempt of Court''.
16. In the present application these provisions have not been complied with. It is not stated at the top of the petition that the jurisdiction invoked is "Special Jurisdiction" of this Court and that the subject-matter is ''Contempt of Court''. Mr. Ghose referred me to the the minutes of the proceedings before Bose, J. on the 5th February, 1960 in Suit No. 3029 of 1954 (Aurobindo Ghosh v. Amar Krishna Ghose & Ors. (1). An application for contempt was made in this suit. The petition suffered from the defect that it was not in compliance with the provisions of part 14 of Chapter XXXVIII. Bose, J. heard arguments of the parties to this application and was pleased to allow the petition to be withdrawn with liberty to bring a fresh application. His lordship has not expressed any views on part 14 of Chapter XXXVIII. Learned counsel has urged that since the petition in the instant case is defective as aforesaid the court has no jurisdiction to try the application.
17. Part 14 of Chapter XXXVIII was introduced on the 29th August. 1957. It deals with technical or procedural matters. It does not in my opinion confer or take away or abridge any jurisdiction which was already there. Article 215 of the constitution of India provides that every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Section 3 of the Contempt of Courts Act, 1952 provides inter alia that every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of court subordinate to it as it has and exercises in respect of contempt of itself. No High Court however shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
18. In Sukhdev Singh v. Taja Singh, C.J., (2) AIR 1954 SC 186 it was observed that the Constitution gave every High Court the right and the power to punish a contempt of itself. Neither the Supreme Court nor the legislature can deprive a High Court of the right which is so vested in it. The power of a High Court to institute proceedings for contempt and punish where necessary is a ''Special Jurisdiction'' which is inherent in all Courts of record. The Code of Criminal Procedure does not apply in matters of contempt tradable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. The contempt of Courts Act, 1926 was repealed by Act 32 of 1952. Section 3 of the New Act is similar to section 2 of the Old and, far from conferring a new jurisdiction, assumes, as did the Old Act, the existence of a right to punish for contempt in every High Court and further assumes the existence of a special practice and procedure, for it says that every High Court shall exercise the same jurisdiction, powers and authority "in accordance with the same procedure and practice". These words are new and would be inappropriate if the Criminal Procedure Code applied. In any case, so far as contempt of a High Court itself is concerned as distinct from one of subordinate Court, the Constitution vests these fights in every High Court, and no act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.
19. It is true that every High Court can either deal with a contempt summarily and adopt its own procedure relating thereto. The procedure must be fair and the contemnor must be given a fair and reasonable opportunity to defend himself after being made aware of the charge against him. But part 14 of Chapter XXXVIII from this point of view can not be strictly said to be a matter of procedure. It only lays down how the cause title should be entitled. The Court has even power to take notice of contempt suo moto. The jurisdiction of the Court is derived from Article 215 of the Constitution. This jurisdiction has not and can not in any way, as I have said earlier, be affected by Part 14 of Chapter XXXVIII. For the sake of convenience these provisions should be followed, but I am not prepared to go so far as to say that if they are not complied with, the court is without jurisdiction to try the matter.
20. Reliance was placed by Mr. Ghose on In re: Holt (an infant) 11 Ch. Division 168. In this case an order that a father named Holt should deliver over his infant daughter to her mother was intituled only in the matter of the infant (naming her) and in the matter of Act 36 and 37 Vict. c. 12. The copy delivered to the father for serving him with the order was intituled only in the matter of the Act, and not in the matter of the infant, but it was endorsed on the outside ''Re Holt.'' The order was not obeyed and an order was then made to attach the father, and he was arrested and lodged in prison.
21. It was held, that the service of the first order was ineffectual, and that the order to attach must be discharged as irregular.
22. It should be observed that in the above cited case the argument on behalf of the father was that a true copy of the order of the 28th June, 1878 not having been delivered to the father no effectual service of the order had been effected on him and ''all subsequent proceedings were invalid.
23. Assuming that Part 14 of Chapter XXXVIII is mandatory it is true that a direct non-compliance with the rules of practice as to committal and attachment ought not to be condoned by the court; but in a proper case, and for the purpose of justice, and where valid reasons are given for it, an irregularity may be condoned or insistence upon it may not be permitted: Oswald''s Contempt of Court, 3rd Edition, page 211. I may also quote the famous observation of Collins M. R. In the matter of an Arbitration between Coles and Ravenshear (3) 1907, 1 K.B.D. 1 at page 4 which is as follows:
Although I agree that the Court can not conduct its business without a code of procedure I think that the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.
24. To my mind having regard to the (nature of the charges made against Khaleda Sultana in the petition of the Official Receiver and the incidents that are said to have occurred; to throw out this application on the ground that it is not properly intituled would cause injustice in this particular case. It is a proper case in my opinion in which for the purpose of justice the irregularity, if any, should be condoned and insistence upon it should not be permitted. I have also to take into consideration the fact that the application was opened before G. K. Mitter, J. and His Lordship after considering the matter had set it down for trial on evidence.
25. In any event Mr. Gouri Mitter learned counsel for the petitioner has made an oral application for an amendment of the cause title, I do not see why the application for amendment should be refused. The respondents were duly served with a copy of the notice of motion along with copies of the grounds thereof. The respondent Khaleda Sultana could not have been in any doubt as to the nature of this application, the allegations against her and the order which the Official Receiver was seeking. There is also no question of limitation and the petitioner can make another application for committal. I, therefore, direct an amendment of the petition by inserting at the top of it that the jurisdiction invoked is ''special jurisdiction'' of this court after deleting the words ''ordinary original civil jurisdiction'' and that the subject matter is ''contempt of court'' in accordance with the provisions of part 14 of Chapter XXXVIII of the Original Side Rules.
26. It was also contended by Mr. Ghose that Khaleda Sultana has been charged inter alia with aiding and abetting Farrukh Sayer in defeating the order of execution of this court. Mr. Ghose at first said that in the petition this charge had not been made. But in view of the allegations in paragraphs 17, 18. 19, 21 to 23 and 28 of the petition it appears that Mr. Ghose is not right. He argued alternatively that if the charge of aiding and abetting is there then it is a case of Criminal contempt and a Rule Nisi should have been obtained by the petitioner. A stranger to an action who aids and abets the breach of a prohibitory order obstructs the course of justice, and his contempt is punishable by committal or attachment. The punishment is inflicted, not for a technical infringement of the order but for aiding and abetting others in setting the Court at defiance, and thus, while obedience to the order is enforceable merely by Civil process, such conduct on the part of a stranger to the action is contempt of a criminal nature; Oswald''s Contempt of Court, 3rd Edition, pages 106 to 107. In
27. Learned counsel for the respondent has urged that since no rule nisi was taken out by the petitioner the application should be dismissed.
28. In the very case of
29. I have therefore to see whether the petitioner has complied with the provisions of Rule 4 of Chapter XX of the Original Side Rules which is as follows:
A notice of motion shall be intituled in the suit or matter in which the application is intended to be made, and shall state the time and place of application and the nature of the Order asked for, with a note at foot specifying the grounds to be used in support of the application. It shall be addressed to the party or parties intended to be affected by it and their attorney or attorneys (if any), and shall be signed by the attorney of the party moving, or the party himself where he acts in person.
30. In the instant case a notice of motion in compliance with this Rule has been taken out. The notice along with the grounds thereof has been served on the respondent No. 2. She has appeared pursuant to this notice with full knowledge of the allegations against her to answer the charges. In these circumstances it would not be proper, in my opinion, to dismiss this application on the ground that a Rule Nisi had not been obtained.
31. As to the charges made against the respondent No. 2 I propose now to discuss the evidence of the different witnesses who have deposed before me Motilal Haider, an assistant in the office of the Official Receiver says that on the 1st October, 1958 he went to premises No. 141, Howrah Road along with a number of people he has named and found the gate closed. When he knocked at the door it was opened and he found the Durwan. 1st of October was a Wednesday and a working day. Motilal and the other persons went to the premises at about 1-30 P.M. The different sheds and rooms and the factory where he saw people working on the previous occasion were all locked. Motilal enquired of the defendant Farrukh Sayer from the Durwan. He came to learn that the defendant was not there and there was another gentleman whom he was asked to meet. This gentleman is Bejoy Krishna Boral, a clerk of Sovendra Nath Ghosh, solicitor for the respondent No. 2. Bejoy showed to Motilal and the others an order of this court and some papers and said that his master''s clients Khaleda Sultana and Tahera Sultana were the owners of the western portion of the premises. He stated further that his master was acting on behalf of Khaleda and Tahera and he was also speaking on their behalf. Motilal asked Bejoy to show to him the goods that belonged to Farrukh Sayer and also the goods of Khaleda and Tahera. Bejoy said in reply that the keys to the western portion were lying with Sovendra Nath Ghosh; he could not open the rooms and show the goods to Motilal. The premises did not appear to Motilal to have been partitioned; but a barbed wire fencing had been set up in the middle of the compound and there were buildings and structures beyond the fencing. This fencing was not there when Motilal visited the premises on the 30th August, 1958. The fencing seemed to "be new. Motilal found Khaleda Sultana living on the 1st floor of the eastern side; questions 167 to 174, 177 to 184 and 189 to 198, 1100 to 1104. Apart from the Durwan and Bejoy Boral, the Officer-in-charge of the local police station and Khaleda Sultana were present when Motilal went to the premises on the 1st October, 1958; questions 200 to 202.
32. It appears, therefore, that the Official Receiver''s men went to take possession on the 1st October, 1958 which was a Wednesday and a working day. The factory in the premises which was full of workers on the 30th August, 1958 was completely closed and apart from Bejoy Boral, the Officer-in-charge of the local Police station and Khaleda Sultana there was practically none else in the premises. Boral was waiting with papers and documents to convey to the representatives of the Official Receiver the instructions of Khaleda Sultana. The keys to the western portion had already been sent by Khaleda to her solicitor and a new barbed fencing had been erected to separate the western from the eastern portion. The door of this barbed wire fencing was under lock and key.
33. That the barbed wire fencing is new, has also been stated by the plaintiff Harikissen Khettry and Probodh Chandra Roy, another assistant of the Official Receiver; vide evidence of Hari Kissen, questions 83 to 87, 118 to 120 and 153 to 157 and the evidence of Probodh, questions 25 to 31, 57, 67 to 72 and 160 to 167. Harikissen has stated further that the Official Receiver''s men wanted to put a seal on the lock on the door of the barbed wire fencing but Bejoy Boral pressed him not to do so. A new sign Board has also been put up on the fencing on which was written ''Khaleda Sultana Estate''. Hari Kissen did not see on either of the two days any brick wall separating the two portions of the premises. About the new sign-board there are slight discrepancies between the evidence of Hari Kissen and that of Probodh. Probodh has said that on this Board was written "The properties of Khaleda Sultana and Tahera Sultana''. But he supports Hari Kissen that this was a new board.
34. The next point that deserves consideration is the role actually played by Khaleda Sultana with regard to the incidents of the 1st of October, 1958. Motilal says in his evidence that Khaleda was sitting in the office room when he and the persons who were accompanying him reached the premises. Thereafter she moved into the side room. Bejoy Krishna Boral from time to time went into this side room to obtain instructions in order to answer questions put to him by the Official Receiver''s representatives. The Officer-in-charge of the local police station also had talks with her. It was ascertained that the Officer-in-charge had gone there at the invitation of Khaleda Sultana. It was suggested to Motilal in cross-examination that Khaleda was not in the office room when the Official Receiver''s men arrived at the premises. Motilal has denied the suggestion. This fact is not stated in the petition, but the suggestion by learned counsel was made obviously on wrong instructions. Motilal also saw Khaleda in the side room when Bejoy was entering the room to receive her instruction. Motilal remembers for instance that when he asked Bejoy as to whether Khaleda was occupying the first floor of the eastern portion upon payment of rent to Farrukh Sayer, Bejoy went into the side room to ascertain the position from Khaleda. At that time Motilal saw Khaleda sitting in that room. He could also hear her voice while she was speaking. She said to Bejoy that she was not residing there on payment of rent but had been allowed by her brother to stay. This statement of Khaleda Motilal had overheard. The conversation between Khaleda and Bejoy was in the Bengali language. It was put to Motilal that his evidence that Bejoy was getting instructions from Khaleda who was sitting in the side room was false. Motilal denies this suggestion. Here again is a suggestion based upon erroneous instruction: vide evidence of Motilal Haider, questions 2to 9, 232, 449 to 452. 1054 to 1056, 1060 to 1064 and 1134 to 1155. Hari Kissen Khettry says that talks between Bejoy and Motilal took place in the room of the manager J. C. Roy and in the room to its side Khaleda Sultana was sitting; question 168. Both these witnesses are supported by Probodh Chandra Roy and Nani Gopal Mazumdar, Officer-in-charge of the Howrah Government Railway Police Station; vide evidence of Probodh, questions 14, 18 to 20, and 83 to 85 and that of Nanigopal questions 4 to 27. Nanigopal has said that as far as he could remember on the 1st October, 1958 he was requested by Khaleda Sultana over the telephone to be present when the employees of the Official Receiver went there to take possession of the premises. He was instructed by Khaleda Sultana to see that no breach of the peace took place when the Official Receiver''s employees arrived as also to see that her possession of the portion of the premises in which she was residing was not taken away by the Official Receiver''s employees. He received these instructions on the telephone and when he arrived at the spot the same instructions were given to him by Khaleda Sultana orally. When Nani Gopal arrived Khaleda was in the drawing room of the ground floor. Nanigopal stayed on to see that there was no breach of the peace because on the previous occasion there was trouble. He told the Official Receiver''s men that Khaleda was residing in a portion of the premises and the western portion did not belong to Farrukh Sayer and it had nothing to do with the taking of possession of the premises. The portion in which Khaleda was residing according to Nani Gopal was the first floor, the second floor and the drawing room where he met Khaleda. Kheleda told Nani Gopal that the western portion belonged to her. He did not appreciate the implications. Mr. Ghose learned counsel for the respondent No. 2 has invited me to disbelieve Nanigopal. But upon consideration of the relevant evidence I am not inclined to do so.
35. It will now come to the evidence of Bejoy Krishna Boral who was called on behalf of the respondent No. 2. He has stated in cross-examination that he was acting as the agent of Khaleda Sultana and all the statements made by him to the representatives of the Official Receiver on the 1st October, 1958 were made by him as an agent of Khaleda Sultana and he was duly authorised to make those statements. Motilal asked him in what capacity Khaleda was occupying the first floor of the eastern portion. Bejoy consulted Khaleda who was in the side room in order to answer Motilal. At least on two occasions he had to take instructions from Khaleda Sultana in order to reply to questions put to him by the representatives of the Official Receiver. Khaleda Sultana knew perfectly well why Motilal had gone there. Sovendra Nath Ghose had sent Bejoy to the premises and Bejoy was acting under Khaleda''s instructions. Bejoy objected to any seal being put on the western portion as he had learnt from Khaleda that the articles lying therein belonging to her and there might be some articles of the defendant Farrukh Sayer. Hari Kissen Khettry, the plaintiff was asserting that the goods in the western portion were Farrukh Saver''s. That is why Bejoy consulted Khaleda and gave his answers to Motilal as aforesaid. The necessity for consulting Khaleda was that Bejoy did not know whose goods were lying in the western portion. Bejoy first said that at this point of time there was no proposal for putting a seal on the lock to the western portion, but later on he admitted that the proposal was made. He admitted further that he told Khaleda Sultana that the plaintiff was stating that the goods in the western portion were of Farrukh Sayer and these should be locked and sealed. Apart from claiming the goods Khaleda was opposed to the seal being put; questions 28 to 29, 62 to 68, 74, 109 to 128. From this evidence of Bejoy Krishna Boral it is obvious that it should never have been suggested to Motilal that he was making false statements with regard to the presence of Khaleda Sultana in the premises when the representatives of the Official Receiver went there to take possession on the 1st October, 1958. Indeed the depositions of the witnesses I have discussed above make it clear that not only was the respondent Khaleda Sultana present on this occasion but all the representations that were made by Bejoy Krishna Boral and Nanigopal Mazumdar to the persons sent by the Official Receiver were made under her authority and her instructions.
36. There is no doubt that the attempts made by Khaleda Sultana to prevent the Receiver from taking possession of certain portions of the premises and the moveables lying therein were prearranged and premeditated. Khaleda Sultana knew that the Receiver was coming to take possession on the 1st October, 1958. There is a letter dated October 1, 1958 from Sovendra Nath Ghose to the Official Receiver at pages 8 and 9 of Ext. ''B'' In this letter Ghose has stated inter alia that the Receiver is about to take possession. The letter is addressed to the Receiver under instructions from Khaleda Sultana and Tahera Sultana. Ghose claims that his clients are the owners of the western portion of No. 141, Howrah Road with all the structures therein and are in possession of the said property. The Official Receiver should not attempt to take possession of this property. If inspire of this notice the Official Receiver tries so to do he would be trespassing on Ghose''s clients'' property. It is stated further in this letter that the eastern portion of No. 141, Howrah Road with the factory and everything connected therewith and other properties therein belonging to Furrukh Sayer are charged in favour of Tahera and Khaleda and the defendant''s other sisters under the decree of this Court in Suit No. 2285 of 1947. The solicitor proceeds to say that his client (meaning Khaleda Sultana) is in occupation of the entire upper floor of the eastern portion where she is staying including a bath room on the ground floor and the stair case from the ground floor. Her possession of these portions of the premises should not be disturbed or interfered with in any way. The solicitor requests the Official Receiver to give immediate instructions to his men accordingly. The solicitor also says that he was sending a copy of this letter to the plaintiff''s solicitor and a duplicate letter to the factory instructing Khaleda Sultana to hand it over to the Official Receiver''s representatives.
37. Motilal Haider has said in question 1032 that a copy of this letter war. shown at premises No, 141, Howrah Road to him by Bejoy Krishna Boral.
38. Hari Kissen Khettry the plaintiff has stated that the ''Zarda'' factory was to be taken possession of in terms of the order of G. K. Mitter, J. On the western side of the premises lay all the apparatus for boiling and manufacturing. The workshop was on the western side; questions 89 to 91. Motilal says that on the 30th August, 1958 he saw many people working in this factory and roaming about; questions 87 and 88. Bejoy also admits that on the 1st October, 1958 Hari Kissen told Motilal that the plants, apparatus and machinery for manufacturing ''Kimam'' and ''Zarda'' were all in the western portion of the property beyond the fencing. He communicated to Khaleda Sultana what the plaintiff said. Khaleda''s case was that the articles in the western portion belonged to her and there might be some belonging to Farrukh Sayer as well; questions 108 to 110.
39. Mr. Gouri Mitter, learned counsel for the Official Receiver has urged that when this evidence is read in the context of the incidents that occurred on the 30th August, 1958 it is clear beyond doubt that Khaleda Sultana has conspired to flout the order of this Court. She resisted and obstructed the Official Receiver''s representatives from taking possession and interfered with work of this Court when the Court was trying to execute its own order. The positive evidence of Hari Kissen is that the goods lying in the western portion belonged to Farrukh Sayer. Khaleda Sultana does not come forward to deny this on the witness box. The conclusion therefore, is that she made an untrue assertion of title on the 1st October, 1958. There is no evidence that the factory of Farrukh Sayer was not situate on the western portion. On tie contrary the evidence on record is that Farrukh Sayer was in occupation of the Western portion and was carrying on his business there. Khaleda Sultana has prevented the Official Receiver from taking possession of the western portion. As an active collaborator of Farrukh Sayer she has committed contempt of court.
40. Mr. Mitter then referred to the depositions of different witnesses in support of the various acts of contempt alleged to have been committed by Khaleda Sultana. Motilal Haldar has stated that Bejoy Krishna Boral told him on the 1st October, 1958 at premises No. 141, Howrah Road "Our clients are owners of the Western portion of the premises. I cannot give you possession of the same. On the 1st floor of the building on the Eastern side our clients are living. I cannot give you possession........" questions 185 and 186. Boral also said to him that the moveables in the western portion belonged to "our clients" and Farrukh Sayer had some moveables and goods there. Motilal asked Bejoy to show to him the goods of Farrukh Sayer and also the goods of his client. Bejoy stated that the keys were lying with Sovendra Nath Ghosh. He could not open the rooms and show the goods to Motilal. Bejoy was referring to the look on the door in the barbed wire fencing: questions 190 to 196. Motilal told Bejoy that under order of this Court a Receiver had been appointed over the entire premises. He had asked Bejoy to give possession of the entire building and if Bejay had anything to say the Receiver was to be informed. Boral said to Motilal that as the western side of the premises belonged to his masters clients he could not give possession of that portion. With regard to the moveables in the western portion Boral asked Motilal to write to Sovendra Nath Ghose who would make arrangements for the same. Moti came to know from Bejoy that the keys were with Ghose. Motilal wanted to put a seal on the padlock on the entrance to the western portion, but Bejoy prevented him from doing so. Bejoy said, "Your Durwan is remaining here." Ghose did not make any appointment to open the door leading to the western portion; questions 205 to 209, 212 to 218, 221 to 223, 234. In question 244 Motilal says that the Receiver''s representatives did not get possession of the western side. Hari Kissen Khettry has said also that the Official Receiver''s men could not put any seal on the western portion of the premises as Bejoy pressed them not to do so. Boral came at the instance of Khaleda Sultana''s solicitor. He obtained instructions from her and returned to report that possession could not be given. Boral also categorically refused to give possession of the room on the ground floor where the staircase was situate and the rooms on the upper floor of the Eastern portion to which the staircase led; questions 85, 128, 148 and 166. The evidence of Probodh Chandra Roy, an estate clerk and an assistant in the office of the Official Receiver fully supports the statements of Motilal and Hari Kissen: vide deposition of Probodh, questions 21, 39. 40 to 48, 56 to 73 and 153 to 155.
41. As to what Boral had actually said to the representatives of the Official Receiver the best evidence on record is the report of Motilal Haldar dated the 1st October, 1958 which has been signed both by Boral and the plaintiff. This report has been marked as Ext. ''01''. The relevant portions of the report are as follows:
Sri Boral showed to us a portion of a certified copy of a decree dated 20-11-50 together with the award and the plan and stated that the western portion of the premises belonged to Khaleda and Tahera Sultana that is, they were owners of the said portion and objected to our taking possession of the said portion. Besides this, it was also stated by Sri Boral that the entire first floor of the main building in the Eastern portion together with one bathroom and staircase are in the occupation of their clients and requested us not to disturb or interfere with her possession. I asked Sri Boral to let me know in what capacity their clients were occupying the said first floor and in reply it was stated by him that their clients were occupying the said portion without any rent as allowed by their brother Farrukh Sayer.......
Sri Boral states that the moveables (in the western portion) are their client''s property and there may be some moveables belonging to the defendant. In the absence of the keys it is not possible at present to describe the particulars of the moveables belonging to their clients and|or the defendant. Sri Boral submits that there should not be any seal on the gate as the main gate was under the care of the Official Receiver. He further states that the keys are lying with Sri Sovendra Nath Ghose, solicitor who will inform at an early date when the gate will be opened and an inventory of the moveables, if any, belonging to the defendant may be prepared. If required, the Official Receiver''s Durwan may be instructed to see that no articles lying in the western portion are removed by any body.
42. In paragraph 24 of the affidavit - in - opposition of Khaleda Sultana affirmed on the 25th April, 1959 reliance has been placed on this report of Motilal Haldar. In this paragraph Khaleda has stated that the Official Receiver''s assistant did not ask her to make over possession of the Western portion. She has not come forward to support this statement or contradict the evidence of the witnesses called on behalf of the Official Receiver.
43. With respect to the first floor of the Eastern portion apart from the evidence I have already taken into consideration, it is necessary to refer to a few more questions of Motilal and Harikissen. Motilal has said that he found that Khaleda Sultana was living on the first floor on the Eastern side of premises No. 141, Howrah Road.
44. Bejoy Boral said to him that all the moveables that were lying on the first floor were those of Khaleda. According to Motilal the Official Receiver has taken possession of the entire Eastern portion excepting the first floor (Qq. 198, 210 and 243). Harikissen has also said that the Official Receiver''s representative on the 1st October, 1958 could not walk over and take possession of the first floor of the main building on the Eastern side. So far as the moveables on this floor were concerned Motilal has papers with him which were shown to Bejoy and Motilal represented to Bejoy that he was to take possession of the entire premises and to make inventory of all the articles lying in the premises. To that Boral said, inter alia, that Motilal could not go to the first floor at all. It was not possible to make an inventory of the articles on the first floor in these circumstances (Qs. 92 to 97).
45. The property in respect of which Receiver was appointed by G. K. Mitter, J. has been referred to in the schedule annexed to the Tabular Statement of the plaintiff. The Receiver was to take possession of premises No. 141, Howrah Road together with all the structures, sheds and building and all the moveables including machinery, stock, etc. On the 1st October 1958 Sovendra Nath Ghose under instructions from Khaleda Sultana and Tahera Sultana addressed a letter of the Official Receiver which I have already referred to in Ex. B, page 8. The opening words of this letter are as follows:
I understand you have been appointed Receiver in execution of the decree against the defendant......
46. Khaleda Sultana has not stepped into the witness box and it would be reasonable to infer that she has come to understand from her brother Farrukh Sayer. It is stated in this letter, as I have said, that the property belonging to Ferrukh Sayer, namely his portion (Eastern) of 141, Howrah Road with the factory business and everything connected therewith and other properties belonging to him are charged in favour of his sisters. The oral evidence adduced before me, is that the factory which the Receiver was to take possession of was in the western portion of the premises. It is also in evidence that Bejoy Boral under instructions from Khaleda Sultana, did not allow the Receiver''s representative to take possession of the factory symbolically or otherwise. The Official Receiver on the 7th October, 1958 replied to the letter of Sovendra Nath Ghose dated the 1st October, 1958, vide Ex. B, page 16.
47. In this letter the Official Receiver wrote, inter alia, as following:
Please note that at the time of taking over possession of the above premises on 1-10-58 it was stated by your client that.... articles were lying there belonging to the defendant in the western portion but the possession of the same could not be taken as it was reported that the keys for the said portion were lying with you.
I, therefore, fix Wednesday the 8th instant 1 P.M. for taking over possession of the moveables lying in the western portion of the above premises, when please advise your client to be present with the keys, and to make over possession of the movables to my assistant to be deputed for the purpose.
48. Apparently Sovendra Nath Ghose did not comply with the Official Receiver''s request. He wrote to the Official Receiver on the 8th October, 1958 (Exhibit B. page 17), inter alia, as follows:
I have already informed you that the movables on the said portion belonged to my client. There are however certain movables belonging to Mr. F. Sayer which are stored in a go-down but which I understand are hypothecated by Mr. F. Sayer to the Central Bank of India Ltd. The said godown with the movables are in the possession of the Central Bank of India as mortgagee in possession. 3o you can have no claim on such hypothecated goods. The keys of the said godown are with the Bank. You take up the matter with the Bank.
In these circumstances you are not entitled to go to my clients'' premises for the purpose of any inventory as my clients can not allow you to make inventory of the articles belonging to them and lying at the said premises. The keys are with me but you cannot demand access thereto. I have further to state that I have looked into the Tabular Statement and Minutes of the Court dated the 28th October, 1958 whereby you are appointed Receiver of the Premises only. I am afraid you are not Receiver of any moveables. So how can you claim to make any inventory of any moveable whatsoever. I also understand from Mr. Bari that the defendant is making an application to the court for your removal and for setting aside of the order and the same is fixed for hearing on the 10th.
49. If the statements regarding hypothecation to the Central Bank of India Ltd. be true, it is difficult to appreciate how Khaleda Sultana was claiming to be in possession of the godown on the Western portion.
50. To my mind Mr. Gouri Mitter has justifiably argued that Khaleda Sultana had colluded or conspired with Farrukh Sayer to flout or defeat the order of this court. It is in evidence that a new barbed wire fencing had been put up to separate the Eastern from the Western portion. This fencing had a door which had been locked up; the keys had been sent to Sovendra Nath Ghose the solicitor, prior to the arrival of the Receiver''s men; the whole factory which was functioning on the 30th August, 1958, was closed on the 1st October 1958 in anticipation of the Official Receiver''s attempt to take possession. Excepting the first floor and the office room on the ground floor the other rooms on the Eastern portion were under lock and key. Both J. C. Roy and Farrukh Sayer were conspicuously absent although it was known that the Receiver was coming, leaving everything to Khaleda Sultana who conducted the ''operations of the 1st October, 1958. When I look at these facts against the background of the incidents of the 30th August 1958 I feel convinced that the charges of collusion and conspiracy against Khaleda Sultana have been established.
51. The allegations against Khaleda Sultana in different paragraphs of the petition are as follows:
1. Khaleda Sultana in collusion and in conspiracy with her brother Farrukh Sayer deliberately prevented the representatives of the Official Receiver on the 1st October, 1958 from taking possession of premises No. 141, Howrah Road as directed by the Order of G. K. Mitter, J., dated the 28th August, vide paragraph 22 of the petition.
2. By reason of the obstruction offered by Bejoy Krishna Boral the Official Receiver could not obtain possession of all the moveables in respect of the whole of the premises as directed by the Order of this Court dated the 28th August, vide paragraph 22 of the petition.
3. Bejoy Krishna Boral alleged that Khaleda Sultana and Tahera Sultana were the licencees under the defendant Farrukh Sayer in respect of their occupation of the 1st floor of the premises: vide paragraph 22 of the petition.
4. The respondent Khaleda Sultana is trying to practice a fraud upon this Court to prevent the Official Receiver from carrying out the Order dated the 28th August, 1958; vide paragraph 23 of the petition.
5. Sovendra Nath Ghose acting under instructions from his clients Khaleda Sultana and Tahera Sultana refused to make over possession of the keys to the western portion of the premises to the Official Receiver and thereby obstructed the Receiver to make an inventory of the moveables lying therein; vide paragraph 18 of the petition along with paragraph 34 of the affidavit - in - reply of Motilal Haldar affirmed on the 14th May, 1959.
6. Khaleda Sultana (through Bejoy Krishna Boral) objected to the Official Receiver''s representatives taking possession of the Western portion of the premises: vide paragraph 17 of the petition.
7. Because of obstruction created by Khaleda Sultana and others the Official Receiver''s men could take only formal possession of premises No. 141, Howrah Road, vide paragraph 20 of the petition.
8. In view of the obstructive attitude of Khaleda Sultana and others the Official Receiver has not been able to carry out the order passed by His Lordship the Hon''ble Mr. Justice G. K. Mitter on the 28th August, 1958 made herein: vide paragraph 28 of the petition.
9. Khaleda Sultana and others have violated and flouted the Order of the 28th August, 1958 with knowledge of the contents, purport, meaning and effect thereof: vide paragraph 28 of the petition.
10. Khaleda Sultana and the other respondents intentionally and deliberately showed gross disrespect to the Officers of this Court and have thereby deliberately treated the Court in a contemptuous and humiliating manner and are guilty of contempt of this Court: vide paragraph 27 of the petition.
52. From the evidence oral and documentary discussed hereinbefore it appears that all these allegations have been established in this application.
53. Mr. B.K. Ghose, learned counsel for Khaleda Sultana does not dispute that resistance or obstruction was offered to the Official Receiver by his client. But his contention is that she had done so pursuant to and in assertion of her legal rights. She was in possession of the rooms on the 1st floor of the Eastern portion along with the staircase and a bathroom under a licence from her brother Farrukh Sayer. There was no order on her to vacate that portion of the premises. She was one of the owners of the Western portion of the premises under an award and a decree passed thereon by this Court and her brother Farrukh Sayer had no interest therein. That is why the keys to the western portion were not made over by her to the Official Receiver. With regard to the moveables of Farrukh Sayer lying in was western portion Khaleda Sultana was under no obligation to allow the Official Receiver to make an inventory of those moveables or to take possession thereof. There is no order of this Court directing Khaleda Sultana to do so. As to the calling of Nani Gopal Mazumdar, Officer-in-charge of the local Police Station, Mr. Ghose submits without prejudice to his previous contention that, if his client had the right to be in possession she could call a police officer to see that she was not thrown out of possession.
54. I should observe at this stage that assuming everything in favour of Khaleda Sultana, this application was directed by G. K. Mitter, J., to be tried on evidence and thereafter it has assigned to me by the learned Chief Justice. I have heard the evidence of witnesses called on behalf of both the parties. But it has not been proved before me that a licence was granted by Farrukh Sayer to Khaleda Sultana to remain in occupation of the 1st floor of the eastern portion of the premises with a bathroom and the staircase. It has not also been proved before me that the moveables of Farrukh Sayer lying in the western portion of the premises were hypothecated to and were in the possession of the Central Bank of India Limited. I see no jurisdiction whatsoever in these circumstances for Khaleda Sultana refusing to make over possession to the Official Receiver of the portion of the premises in her occupation or of the moveables of Farrukh Sayer in the western portion after the contents of the order of G. K. Mitter, J. were brought to her notice. I shall deal with the western portion of the premises later in my judgment.
55. Mr. Ghose drew my attention to a letter of the Official Receiver dated the 7th October 1958 to the plaintiff''s solicitors vide Exhibit B page 15. In this letter the Official Receiver has stated that possession of the premises excepting the western portion thereof was taken on the 1st October 1958 in the presence of the plaintiff by affixing seals on the closed locks of the office building and sheds and by posting two durwans. Obviously, the Official Receiver was referring to formal possession taken by him which did not mean that he had succeeded in carrying out fully the order of G. K. Mitter, J.
56. Strong reliance was placed by Mr. Ghose on the decision in
The bailiff of the Court to give possession of the property to the applicant on July 2, 1951.
57. When possession was being delivered no resistance was offered to the bailiff. But as soon as the bailiff went away the opposite party No. 2 who was all the while standing there retook the possession. The opposite party No. 2 was not a party to the proceedings. He, however, claimed to be the sub-tenant of the opposite party No. 1 who was the tenant and against whom the ejectment proceedings were taken. On the question whether the opposite party committed contempt of court it was held, inter alia, as follows:
1. The opposite party No. 1 did not commit any contempt as there was no allegation against him.
2. Since there was no order on the contemn or to do anything it could not be said that there was any wilful disobedience of the order.
3. The opposite party No. 2 not being a party to the ejectment proceeding could not be held bound by any order passed therein. Such an order would be binding on him only in circumstances mentioned in order 21, rule 35 of the CPC but not in such a case.
4. Prima facie the opposite party No. 2 was guilty of contempt by obstructing the course of justice. It makes no difference that he was no party to the action, for a stranger has no more right than a party wilfully and wrongfully to oust the Court''s officer from possession or prevent him from carrying out the court''s order.
(In the case before me Khaleda Sultana is a stranger to the suit. But the charge against her is-and the evidence establishes that charge-that she has wilfully and wrongfully prevented the Official Receiver from carrying out the order of G. K. Mitter J., at least so far as the first floor of the eastern portion with the staircase and the bathroom and the moveables of Farrukh Sayer in the western portion were concerned.)
5. But a person bona fide claiming to be rightfully in possession of property is entitled in law, to resist a court officer from ousting him from such possession in execution of an order of court passed in a proceeding to which he was not a party. Indeed, in such a case, the court''s officer has no right to oust him until his claim is adjudicated upon in appropriate proceedings. It would be against all principles of justice that a person honestly claiming a right should be under a duty to abandon that right and to obey an order passed without him being heard. The provisions of Order 21, Rule 27 and the following Rules of the CPC would seem to contemplate the right of such a person to resist possession being taken from him.
(In the present application it does not appear to me that Khaleda Sultana was bona fide or honestly claiming to be rightfully in possession at any rate of the first floor of the eastern portion with a bathroom and the staircase and the admitted moveables of Farrukh Sayer).
6. But where the tenants'' tenancy has been terminated, this termination also normally brings to an end the sub-tenant''s tenancy and the subtenant cannot lawfully resist the court officer in executing a decree in ejectment against his landlord. Such termination of the sub-tenant''s tenancy, however, is not necessarily always the case, such as in the cases of surrender and under some Rent Laws where upon termination of the tenancy the sub-tenant became a direct tenant of the landlord. In such cases the subtenant can rightly resist the execution of the ejectment order and he cannot be committed for contempt. In the absence of anything to show in what right the opposite party No. 2 held his sub-tenancy, he could not be committed for contempt. Such an order can never be made in a case of doubt, for committal is a serious matter and involves in most cases an exceptional interference with the liberty of the subject, and that, too, by a method or process which would in no other cases be permissible or even tolerated. It was impossible, therefore, to hold that the opposite party No. 2 was guilty of contempt.
[In the instant case (leaving aside the western portion of the premises) Khaleda Sultana has alleged that she was a licensee of her brother. She has alleged further through her solicitor that she was not willing to allow the Receiver to make an inventory of Farrukh Sayer''s moveables in the western portion or to take possession thereof as the same had been hypothecated to the Central Bank and was in the custody of the Bank. She had ample opportunity of proving these allegations before me but has not chosen to do so. In these circumstances, I have to conclude that these allegations are baseless].
58. It should be observed further that this decision in
59. In Ames v. The Trustees of the Birkenhead Docks, (6) 20 Beavan''s Reports, 332 the Chairman was appointed Receiver of the tolls in a suit by the mortgagees of a Dock against the Trustees and a judgment creditor, with direction to pay into court the balance, after paying the expenses of carrying on the concern and the interest on the mortgages. A judgment-creditor having afterwards proceeded to attach the tolls under the Common Law Procedure Act was restrained by an injunction. It was insisted, that the possession of the Receiver was either that of the Dock Company or of the mortgagees, and in the former case the judgment creditor ought not to be restrained in the exercise of his legal remedies against the company, and in the second, that the mortgagees had no power, under the Acts of Parliament, to carry on the concern, but this argument was held unavailing. At page 353 Sir John Romilly, Master of Rolls, observes as follows:
There is no question but that this court will not permit a Receiver, appointed by its authority and who is, therefore, its officer, to be interfered with or dispossessed of the property he is directed to receive, by any one although the order appointing him may be perfectly erroneous; this Court requires and insists, that application should be made to the court, for permission to take possession of any property of which the Receiver either has taken or is directed to take possession, and it is an idle distinction (which could not be maintained if it were attempted which it is not by counsel at the bar although suggested by the affidavits), that this Rule only applies to property actually in the hands of a Receiver. If a Receiver be appointed to receive debts, rents or tolls, the Rule applies equally to all these cases, and no person will be permitted, without the sanction or authority of the court to intercept or prevent, payment to the Receiver of the debts, rents or the tolls, which he has not actually received but which he has been appointed to receive.
60. With respect I entirely agree with these observations. To my mind unless these principles are rigidly adhered to, due administration of justice may often be a difficult and obstinate problem. Having regard to the facts of this case I lay special emphasis on the observation of the learned Master of Rolls that there is no distinction between a case of a Receiver actually in possession and the case of a Receiver who has been directed to take possession.
61. Mr. B. K. Ghose, learned counsel for the respondent Khaleda Sultana, has stated that the principles enumerated above are applicable to Farrukh Sayer''s portions of premises No. 141, Howrah Road and to the properties of the defendant therein. I And from the Minutes of the Court of G. K. Mitter, J. dated the 28th August, 1958 that the Official Receiver was appointed Receiver in terms of clause 10 of the Tabular Statement: Ex. B page 1-A. In clause 10 of the Tabular Statement the prayer was for the appointment of a Receiver to take possession of the entire premises No. 141, Howrah Road in the town of Howrah as described in the schedule to the Statement Ex. B page 1. The schedule referred to in the Tabular Statement speaks of premises No. 141, Howrah Road together with all the structures, buildings, sheds and all the moveables including machinery stock etc. Ex. B, page 2. It is clear, therefore that the Receiver was directed to take possession not only of the eastern portion but also of the western portion of the premises. If Khaleda Sultana and her other sisters are the owners of the western portion, an application should have been made by them to this court for permission to take possession of the western portion which the Receiver had either taken or was directed to take possession. On the facts of this case it appears that Khaleda Sultana had ample time to make such an application before the Receiver had tried to take possession of the portion of the premises of which she and her sisters claim to be the owners. Such an application can be made even after the Receiver has taken possession. But on the principles enunciated above it would be right to observe that she had no right to resist the taking of possession of any portion of the premises by the Receiver and the movables therein although the order might have been perfectly erroneous. No doubt, it was observed in (7)
A Receiver appointed by the Court is an officer of the Court, and to interfere with him or disturbing him in his capacity as such is a contempt. The fact that the order appointing him was improperly procured is no justification for interfering with him, since the validity of the order can be challenged by application to the court....
62. The authorities relied on in support of these principles are Ames v. Birkenhead Docks Trustees (6) (1855) 20 Beav. 332; and Russel v. East Anglian Rail Co. (8) (1850) 3 Mac. & G. 104.
63. I intend now to quote the relevant observations of the Lord Chancellor in Russell v. East Angliar Railway Co., (1850) 3 Macnaghten & Gordon''s Reports, 104 at page 117 which are as follows:
...it is an established rule of this court, that it is not open to any party to question the orders of this court, or any process issued under the authority of this court, by disobedience. I know of no act which this court may do, which may not be questioned in a proper form, and on a proper application; but I am of opinion that it is not competent for any one to interfere with the possession of a Receiver or to disobey an injunction or any other order of the court on the ground that such orders were improvident made. Parties must take a proper course to question their validity, but while they exist they must be obeyed. I consider the Rule to be of such importance to the interests and safety of the public, and to the due administration of justice, that it ought on all occasions to be inflexibly maintained. I do not see how the court can expect its officers to do their duty, if they do it under the peril of resistance, and of that resistance being justified on grounds tending to the impeachment of the order under which they are acting. In the present case it would have been perfectly open to the plaintiffs in the execution to have applied to this court to be heard pro-interesse suo, or to have been heard on a summary application for leave to levy under their execution notwithstanding the possession of the Receiver. There is no instance in which justice may not be readily obtained by persons who are supposed to have their rights interfered with by an order or process issued by this court........ I apprehend then it may be taken as a rule, that, though this court may have issued a process or have made an order which may interfere with the supposed rights and interests of other parties, not parties to the cause, it is always competent for such parties to make an application to the court for relief; and it is not to be presumed or doubted, but that justice will be duly administered to them on that application.
64. In this case Khaleda Sultana instead of erecting a new barbed wire fencing, fixing a new signboard on the fencing, locking up the door to the western portion and sending the keys to her solicitor before the arrival of the Receiver, could have easily applied to this court for the protection of her rights and interests, if any. In that application she could have also asked for appropriate orders with regard to the eastern portion and the moveables lying in the premises if she had any rights thereto. But the course she had adopted amounts, in my opinion, to contempt of this Court.
65. I have also held on the facts of this case that Khaleda Sultana had aided and abetted Farrukh Sayer in flouting or disobeying the order of this Court. In Seaward v. Paterson (9) (1887) 1 Ch. 745 it was held that there was a clear distinction between a motion to commit a man for breach of an injunction on the ground that he was bound by the injunction, and a motion to commit a man on the ground that he had aided and abetted a defendant in a breach of an injunction. In the first case the order is made to enable the plaintiff to get his rights; in the second because it is not for the public benefit that the course of justice should be obstructed. The court has undoubted jurisdiction to commit for contempt a person not included in an injunction or a party to the action who, knowing of the injunction, aids and abets a defendant in committing a breach of it.
66. It may also be relevant to refer to Avery v. Andrews (10) reported in (1882) 51 L.J. 414. In this case the defendant trustees of a branch of a friendly society, were restrained by an injunction from dividing certain money among the members of the branch. Shortly afterwards the defendant trustees retired, a new trustees were appointed, who (being aware of the effect of the injunction), and under an order of the branch society, divided the money among the members including the old trustees. The Court considered on the facts, that the proceedings were an attempt on the part of the branch society and the old and new trustees to avoid the injunction and a device for disobeying it, in which the new trustees co-operated. It was held that the new trustees, as well as the old, were guilty of contempt of court. Kay, J., who delivered the judgment for Chitty, J., observed at page 416 as follows:
I think I am bound to treat them as to all intents and purposes perfectly well informed of the order, and after reading their affidavits I remain of the opinion which I should have formed without them, that they perfectly well knew what the order of the court was, and that this was a device to which they lent their names and active cooperation to disobey the order of the court. Now I cannot allow that state of things to exist. It is very necessary that the orders of this court shall be observed implicitly; and if people are so foolish as to imagine that they can in this way, by a ruse, avoid and get rid of an order made by this court, it is time that this delusion should be put an end to.
67. There is no doubt on the evidence before me that Khaleda Sultana has lent her name and active co-operation to Farrukh Sayer to disobey the order of this Court.
68. Coming now to Indian decisions I find that the principles enunciated in Ames v. The Trustees of the Birkenhead Docks (6) was followed by Imam, J., in
69. Reverting back to English authorities I intend to refer to another article in Halsbury''s Laws of England, 3rd Edition, Volume 8; Article 16 at page 12 is as follows:
Contempt by obstructing an officer of the court is punished not for the purpose of vindicating the dignity of the court or the person of the officer, but to prevent undue interference with the administration of justice. Disturbing the proceedings before an officer of the court is a contempt of the court whose officer he is and so also is an attempt by threat or otherwise to induce an officer of the court to depart from the course of his duties.
70. Mr. Ghose drew my attention to the following passage in Kerr on Receivers 12th Edition at page 176:
The rule, however, that the possession of a Receiver may not be disturbed without leave, does not apply, so far at least as third persons are concerned, until a Receiver has been actually appointed, and is in actual possession. Until the appointment has been perfected, and the Receiver is actually in possession, a creditor is not debarred from proceeding to execution. An execution creditor may, therefore, sieze chattels after an order has been made appointing a Receiver on his giving security but before the security has been given or possession taken-
71. I do not see how these propositions are helpful to Mr. Ghose. The passage quoted above does not mean that third persons can offer resistance to the Receiver when he comes to take possession. On the contrary the authorities I have collected already indicate that there is no such right.
72. Reliance was also placed by Mr. Ghose on the decision in
I do not understand the proposition to amount to more than this that the right of a stranger in possession, to continue in possession, is not affected by the Order appointing a Receiver, but the fact of his possession does not, to my mind, give him the privilege to interfere with the Receiver directed to take possession of the property. His proper course is to apply to the court for the redress of his grievance. If he interferes with the Receiver he does so at his peril. It is a settled rule that the court will not permit a Receiver appointed by its authority, to be interfered with or dispossessed of the property he is directed to receive, by any one although the order appointing him may be perfectly erroneous; the court requires and insists that application should be made to the court for permission to take possession of any property of which the Receiver either has taken possession or is directed to take possession.
73. My attention has not been drawn to any authority of this court which in any way throws doubt upon the views expressed by Imam, J. On the contrary his Lordships'' judgment has been followed subsequently by this court in 36 C.W.N. 645 (12) in a different context and has been referred to in (13) 53 C.W.N. 214.
74. For reasons aforesaid I find Khaleda Sultana the respondent No. 2 herein guilty of the contempts alleged against her in the petition of the Official Receiver of this court verified by the affidavit of Motilal Haider affirmed on the 8th April 1959 and in the affidavit of Motilal Haider affirmed on the 14th May, 1959. I sentence Khaleda Sultana to pay a fine of Rs. 1,000/-. I direct her also to pay the costs of this application to the Official Receiver and to the plaintiff as of a defended suit. Certified for two counsel so far as the Receiver is concerned. The application is dismissed as against the respondent No. 3 Tahera Sultana: but there will be no order as to costs.
