Subrata Talukdar, J.@mdashIn these applications under Article 227 of the Constitution of India challenge has been thrown by the petitioner to the order impugned dated 5th March, 2005 passed by the Ld. 7th Additional District Court at Alipore in Civil Revisional Application No. 97 of 2003 reversing the order dated 17th August, 2002 passed by the Ld. 4th Civil Court (Senior Division) at Alipore in Misc. Case No. 29 of 1996.
2. From the record it emerges that the present Opposite Party No. 1 (for short OP 1) as plaintiff instituted a suit for partition and accounts against the present petitioner as defendant before the Ld. 4th Assistant District Court at Alipore being Title Suit No. 74 of 1981. The suit was instituted in respect of the properties acquired by their predecessor-in-interest, one Sher Singh.
3. The suit was decreed ex parte in preliminary from by judgment and decree dated 12th June, 1995. The final decree of partition was passed ex-parte on 12th January, 1996.
4. The petitioner filed an application under Order 9 Rule 13 CPC for setting aside the ex-parte final decree dated 12th January, 1996 and the same was registered as Misc. Case No. 30 of 1996. The petitioner also filed an application under Section 5 of the Limitation Act for condonation of delay in filing such application.
5. The said Misc. Case No. 30 of 1996 was allowed on contest by the Ld. 4th Civil Court (Senior Division) at Alipore after condoning the delay in filing the application. The said order dated 17th August, 2002 was challenged by the OP 1 in Misc. Appeal No. 414 of 2002 which was converted into a Civil Revisional Application being CR No. 98 of 2003.
6. By the impugned judgment and order dated 5th March, 2005 the Ld. 7th Additional District Court at Alipore allowed the same by setting aside the order dated 17th August, 2002.
7. Being aggrieved the petitioner has filed the present CO 1337 of 2005 and CO 1338 of 2005.
8. Shri S.T. Mina, Ld. Counsel appearing for the OP 1 has, at the threshold, raised a preliminary objection of maintainability. Shri Mina has submitted that the present petitioner is an alleged contemnor in connection with contempt proceedings arising out of the self-same suit properties. According to Shri Mina the said contempt proceedings have been filed before an Hon''ble Single Bench of this Court.
9. Shri Mina has further submitted that the said Hon''ble Single Bench was pleased to pass an order of status quo dated 5th May, 2005 in respect of the suit properties. The said order of status quo was directed to continue till disposal of the Revisional Applications being CO 1337 of 2005 and CO 1338 of 2005. Shri Mina contends that in spite of having full knowledge of such order and, in violation of the same, the petitioner has transferred several of the suit properties lying in the State of Punjab.
10. It is the further contention of Shri Mina that having regard to the willful and contumacious violation of the solemn order dated 5th May, 2005, the OPs have filed contempt petitions being CPAN 770 of 2014 and CPAN 771 of 2014 and such contempt petitions are due to be heard.
11. Relying on a judgment on this Hon''ble Court reported in 78 CWN 144 in the matter of SS Roy vs. Damodar Valley Corporation and Ors., Shri Mina has forcefully argued that it is now judicially settled that until the petitioner is purged of the contempt or, the contempt proceedings come to a logical conclusion, the petitioner should not be allowed to proceed with the case in connection with self-same suit property. Shri Mina asserts that the present applications being CO 1337 of 2005 and CO 1338 of 2005 can only be heard by this Court after the contempt proceedings have reached a logical conclusion.
12. In support of his argument on maintainability
"9) The point raised is undoubtedly of an old vintage, coming down the corridor of time and going back many centuries in our law. It is undoubtedly true that at one stage there was some cloud raised over the point at issue, but by and large the same has been removed by the principles laid down by the various authorities and the imprimatur of judicial decisions. It is pertinent therefore to refer to the backdrop against which this principle arise. That a party in contempt will not be heard was never a rule of the common law, but as was observed by Lord Justice Denning, "a rule of the canon law, which was adopted by the ecclesiastical courts and the chancery courts''. The history of the rule in Chancery, as it appears from Beams'' Orders in Chancery pp. 35, shows that it originated in the 78th Ordinance of Lord Becon of 1618. It laid down that
"they that are in contempt are not to be here, neither in that suit nor any other, except the court of special grace suspend the contempt.".
It also appears from Gilbert on Forum Romanum 102 that Lord Chief Baron Gilbert laid it down as a general rule that
"the contemnor, who is in contempt, is never to be heard by motion or otherwise till he has cleared him contempt and paid the costs".
The Ordinance of Lord Bacon though used for enforcing orders in Chancery was never applied unless the contempt had been established by the issue of a writ attachment or an order for committal. It is only then that the party became a party in contempt and the Court would not hear him. The said ordinance however and the limitations referred to above were found to be capable of working great in junstice and as was observed by Lord Justice Denning in the case of Hadkinson v. Hadkinson
"in the course of practice, it came to be much restricted in scope. It was confined to cases where a party in contempt i.e. a party against whom a writ of attachment had been issued or an order of committal had been made, came forward voluntarily and asked for an indulgence in the same suit. It was no indulgence for a plaintiff to bring his cause to a hearing or for a defendant to defend himself. Even if he was in contempt therefore, he was.......allowed to be heard unless an order had been made staying the proceedings."
It is pertinent in this context to refer to deniel''s "Chancery Practice" (7th Edn., Vol. 1) pp. 725 that
"a party in contempt for non-obedience to an order in one cause will not be thereby prevented from making an application to the Court in another cause relating to a distinct matter, although the party to such other cause may be the same."
A reference next may be made to the case of Taylor v. Taylor reported in (1849) decided by MacNaughten and Gordon 397 (English Reports Vol. XLI Chancery pp. 1318) it was observed that
"the circumstance of the plaintiff being out of the jurisdiction and in contempt for non compliance with the decree made, did not prevent his filing the bill in question".
The observations of Lord Cottenham, L.C. were approved of again and again in a series of cases. It has been stated in Halsbury''s "Laws of England" (3rd Edn.) Vol. 8, Section 4 Paragraph 73 that
"probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impades the course of justice and there is no other effective way of enforcing the obedience."
Lord Justice Denning also observed ultimately, after discussing the history of the principle in the case of Hadkinson v. Hadkinson already referred to above that
"applying this principle. I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard but if his disobedience is such that so long as it continues, it impedes the course of justice for the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed."
I respectfully agree with the said view and hold that the proposition made by Mrs. Bhattacharyya stands qualified as above.
10) It is quite true that contempt of court is not an ordinary proceeding and the question involved is a serious one. It is true again, as was observed in the case of (2)
"that halo of solemnity surrounding the courts of justice since the dawn of civilization should not be allowed to be disturbed by a blatant interference with its orders, defiling thereby the sacred temples where justice is dispensed by the high priests, the judges".
But the proposition propounded by Mrs. Bhattacharyya is too wide and on ultimate analysis I hold that the same is not in any way an absolute proposition of law but only a qualified one, being subject to the various exceptions referred to above. Apart from the point of law, the basis of facts cannot also be overlooked. Only an application has been filed for contempt before the learned District Judge, Alipore Dist. 24-Paras, being Judicial Misc. Case No. 36 of 1973 and as yet, as the learned District Judge himself, found, an enquiry is yet to be made on the merits of the said application as to whether on the establishment of a prima facie case a reference would be made to the High Court recommending appropriate steps. The contempt therefore has not been prima facie established by the issue of a writ of attachment or an order for committal. The prayer for stay made on behalf of the Plaintiff-Petitioner therefore is premature and the first dimension of Mrs. Bhattacharyya''s contention accordingly fails".
13. Shri Gopal Ghosh, Ld. Counsel appearing for the OP3 (c) has also supported the stand taken by Shri Mina challenging the maintainability of the present applications. Shri Ghosh has submitted that the alleged sale of the suit properties in violation of the solemn order dated 5th May, 2005 took place between the years 2012 to 2013. Since the knowledge of such sale which took place in the State of Punjab reached the present Opposite Parties after a period of time, the contempt applications could be filed only in the year 2014. Shri Ghosh further submits that the contempt applications were filed after the sale deeds were collected in respect of the suit properties and the last sale occurred in the year 2013.
14. Shri Ghosh also supports the legal position elucidated in 78 CWN 144 (supra) on the principle that till the present petitioner purges himself of the alleged contempt or the contempt proceedings reach a logical conclusion, the present applications cannot be proceeded with.
15. Shri Ghosh relies upon a decision of the Hon''ble Apex Court reported in
16. Paras 24, 25, 26, 27 & 28 of the judgment in Prestige Lights Limited (supra) read as follows:-
"24). An order passed by a competent court-interim or final-has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a "drastic step" and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour.
25) In the leading case of Hadkinson v. Hadkinson the custody of a child was given to the mother by an interim order of the Court, but she was directed not to remove the child out of jurisdiction of the Court without the prior permission of the Court. In spite of the order, the mother removed the child to Australia without prior permission of the Court. On a summons by father, the Court directed the mother to return the child within the jurisdiction of the Court. Meanwhile, an appeal was filed by the mother against that order. A preliminary objection was raised by the father that as the appellant was in contempt, she was not entitled to be heard on merits. Upholding the contention and speaking for the majority, Romer, L.J. observed: (All ER p. 572 C)
"...I am clearly of the opinion that the mother was not entitled, in view of her continuing contempt of court, to prosecute the present appeal and that she will not be entitled to be heard in support of it until she has taken the first and essential step towards purging her contempt of returning the child within the jurisdiction."
In a concurring judgment, Denning, L.J. also stated: (All ER p. 575 C-D)
"The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this Court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before counsel is heard on the merits of this case, so that, whatever order is made, this Court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal."
26) That, however, does not mean that in each and every case in which a party has violated an interim order has no right to be heard at all. Nor will the court refuse to hear him in all circumstances. The normal rule is that an application by a party will not be entertained until he has purged himself of the contempt. There are, however, certain exceptions to this rule. One of such exceptions is that the party may appeal with a view to setting aside the order on which his alleged contempt is founded. A person against whom contempt is alleged must be heard in support of the submission that having regard to the meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it.
27) In Gordon v. Gordon, Cozens-hardy, L.J. put the principle succinctly in the following words: (All ER p. 706 E-F)
"....I desire to limit my judgment to a case in which the [party in contempt is saying] that the order complained of is outside the jurisdiction of the court, as distinguished from the case of an order which, although it is within the jurisdiction of the court, ought not, it is said, to have been made."
28). Lord Denning made the following pertinent observations in Hadkinson: (All ER pp. 574 H-575 A)
"It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance."
17. Shri Ghosh asserts that in the facts of the present case the violation alleged of the solemn order of the Hon''ble Single Bench is serious. Upon collection of the sale deeds the present petitioner has come to acquire knowledge of the fact that between the years 2010 and 2013 i.e. in the span of 3 years, the petitioner has sold substantial part of the suit properties in the State of Punjab although restrained from doing so by the solemn order of the Hon''ble Single Bench dated 5th May, 2005. Therefore, according to Shri Ghosh, the facts of the present case make it fit to attract the principle enunciated in
18. Per contra, Shri Mainak Bose, Ld. Counsel appearing for the petitioner has argued that the contempt as alleged is yet to be admitted. Shri Bose has emphatically pointed out that the present Civil Revisional Applications being CO 1337 and 1338 are pending since the year 2005. The order of the Hon''ble Single Bench was also passed in the 2005. The present contempt applications have been filed after a delay of 7 years in the year 2014. Therefore, Shri Bose points out that this is not a fit case where after a lapse of 7 years the present petitioner can be restrained from proceeding with the hearing of the applications pending the disposal of the contempt proceedings against him.
19. In support of his argument Shri Bose relies upon the judgment reported in
"2) The decision of this Court in the case of
5) The Allahabad High Court in the case of
"6) Under the Contempt of Courts Act, there is no provision for striking off the defence of a party in contempt, There is, however, a well established principle that a party in contempt should not be heard in the same cause until that party has purged the contempt. This rule has been followed by Courts in England as well as in India, but the rule is not an absolute one, The striking out of defence a denial of hearing to a party is a serious matter which entails serious consequences to a litigant, The Courts have, therefore, applied this rule rarely against a party in contempt. The extreme penalty of striking out of defence or denial of hearing is applied only in those cases in which a party is found in contempt for disobeying the orders of the Court as a result of which the course of justice is impeded. The Court may, in its discretion, refuse to allow the party in contempt to take active proceedings in the same suit or a cause until the impediment caused by the contempt act is removed. This rule is based on the sound principle that no party to a cause or proceeding should be allowed to flout the orders of the Court or impede the course of justice in order to take advantage of his misdeeds before the Court of law. In England, this rule was applied for the first time by the ecclesiastical Courts. Subsequently this rule was made applicable by other Courts also".
The further observations of the Court in Paragraph 8 of the Report seem to be also apposite and the same is set out hereinbelow:
"8. In our country we have followed the English practice and the law in this respect has developed on the principles enunciated by English Courts. In Hewit vs. M'' Cartney, (1807) 13 Ves 560, Lord Eldon did not allow a defendant to appear and defend the cause against him, as the defendant was held guilty of contempt of Court. In Seward vs. Paterson (1897) 1 Ch. 545, it was pointed out that a distinction must be drawn between a process to assist a party against the opponent who defies the orders of the Court and a process to maintain the dignity of the Court. In Gordan vs. Gordan, (1904) P. 163, it was held that a party was not generally entitled to take a proceeding in a case for his own benefit but these are exceptions to the rule although they are few in number. The case of Chuck vs. Cremer, (1846) L. Co. opt. Cott, 205 (247) and the case of King vs. Brbant, (1838) My & Cr. 191 were cited. In Morrison vs. Morrison, (1845) 4 Hare 590, it was held that a defendant in contempt for non-payment of costs was entitled to file exceptions to a report but that was merely a step taken in his own defence. The view taken in the above earlier English cases makes it clear that the principle adopted was that the Court would not hear a party in contempt coming himself to the Court to take advantage of the proceedings, yet such party was entitled to appear and resist any proceeding against him. It has, however, been stressed by the English Judges that it would be most unjust extension of the rule against the party in contempt to take away an estate without giving him any opportunity of hearing."
6) The law, therefore, seems to be well-settled to the effect that denial of an opportunity of hearing to a party in contempt cannot be had unless the conduct of the party in contempt impedes the course of justice."
20. Drawing inspiration from the judgment in
21. Shri Bose also distinguishes the judgment in Prestige Lights Ltd. Case (supra) on the ground that the said judgment is on the facts of that case which pertain to the Securitisation Act of 2002 and therefore distinguishable.
22. According to Shri Bose the present applications are pending since the year 2005 and any denial of hearing to the petitioner at this stage shall amount to a miscarriage of justice.
23. Heard the parties. Considered the materials on record.
24. The attention of this Court has been drawn by Sri Ghosh, Ld. Counsel for the OP3 (c) to the violation of the solemn order dated 5th May, 2005 passed in CO 1338 of 2005. In the contempt application filed by Sri Ghosh''s Client''s arraying the present petitioner as the alleged contemnor being CPAN 770 of 2014 it has been, inter alia pleaded at paragraph 2 as follows:-
"2) That despite the aforesaid order of status quo the alleged contemnor with the help of his men and agent especially his son-in-law Surjit Singh who is the constituted Power of attorney holder already transferred, alienated and encumbered most of the properties included in the schedule of the decree which is covered by the order of status quo dated May 05, 2005. Such transfers, mostly in respect of properties lying in Punjab, were effected vide several deeds. Since the properties transferred are mostly situated in Punjab, it was extremely difficult for your petitioner to find out the details of such transfers. After extensive efforts, your petitioner could get hold of certified copies of only five of such transfer deeds and some extract of the relevant records-of-rights which records details of such transfers.
Your petitioner has also come to know from people of the respective localities of the properties involved, that the alleged contemnor/respondent has also entered into agreements for sale with other suit properties than those transferred in favour of third parties.
Photocopies of the certified copies of the relevant deeds of conveyance and the true copy of the records-of-rights containing the names of transferees, as translated in English from Punjabi are annexed herewith and marked as Annexure-"B"."
25. Similar pleadings have been advanced in a second contempt application being CPAN 771 of 2014 arising out of CO 1337 of 2005. It has been also contended that the order dated 5th May, 2005 has been passed in presence of both the parties.
26. In the light of the abovenoted pleadings it is apparent that the present opposite parties have been able to make out a case of breach of an order which touches the properties-in-suit. While no doubt admitting the exceptions to the rule that a right of hearing to a party in contempt is not an inviolable bar till such party purges himself of the contempt as explained in both
27. It is apparent to this Court that the contempt alleged touches the core of the disputes between the parties and by allegedly seeking to transfer the properties-in-suit the present petitioner has rendered himself liable to be purged of the contempt or, to wait for the contempt to arrive at a logical conclusion, before he is heard in his present cause.
28. After giving anxious consideration this Court is of the view that the imprimatur of the decision reported in
29. In the light of the above observations this Court upholds the objection on maintainability urged by the opposite parties. CO 1337 of 2005 with CO 1338 of 2005 are adjourned sine die pending final adjudication of CPAN 770 of 2014 and CPAN 771 of 2014. No further orders are called for at this stage in CO 1337 of 2005 and CO 1338 of 2005.
30. There will be, however, no order as to costs.
31. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
