JOSE Vs. ALICE FRANCIS

JUDGEMENT

(1.) TWO points arise for consideration in this original petition (contempt) filed by the plaintiff in a suit for partition before a subordinate court. They are: (1) In the case of a criminal contempt of a subordinate court can the High Court take suo mote action under S. 15 (1) of the Contempt of courts Act, 1971, for short the Act, on a petition by a party to the proceeding in view of the specific provision for reference in S. 15 (2) of the Act; and (2)An interim injunction was sought by the plaintiff in a suit for partition against a person who purchased a portion of the plaint schedule property for putting up a house for him to live The court only ordered notice on the application and did not grant any interim injunction: If the defendant proceeds with the construction in the normal course will he be committing criminal contempt as defined in S. 2 (c) (i) to (iii) of the Contempt of Courts Act, 1971.

(2.) THE plaintiff in OS. No. 391 of 1977, a suit for partition, on the file of the Sub Court , ernakulam, is the petitioner. THE petitioner's case as stated in the original petition is as follows: THE property scheduled to the plaint in OS. No. 391 of 1977 consists of 52 cents of garden land in which there is a residential house and an out-house. THE property was in the possession, cultivation and enjoyment of the petitioner's father as lessee and kudiyirippu tenant. THE petitioner's father was having fixity of tenure under the Kerala Land Reforms Act,1 of 1964. On the death of the petitioner's father in December 1973. the property devolved on the plaintiff and defendants 1 to 4 in the above original suit, who are the only legal heirs of the petitioner's father. THE first defendant in the suit in collusion with a sister and a brother and certain others 'fraudulently made a pact among them selves' to dispose of the property and sale deeds were executed in favour of three persons for three parcels of the property. THE first respondent in this original petition is one of the above three persons who purchased a portion of the property. On coming to know of the sales, the petitioner filed the above suit challenging the sale deeds and claiming partition and separate possession of his share. Along with the plaint, IA No. 5479 of 1977 was also filed before the Sub Court for an interim injunction restraining the first respondent and other defendants in the suit from interfering with or disturbing the condition and status quo of the property pending the final disposal of the suit. THE learned Sub Judge did not grant any interim injunction but only ordered notice on the application and posted it for hearing to 20-12-1977. THEreafter, it was adjourned to 21-3-1978 as notices were not served on all the counter-petitioners. Notice was served on the first respondent herein, who is the 14th defendant in the suit, on 16-12-1977 and she entered appearance. It is alleged that the first respondent with the assistance of her husband, the second respondent suddenly brought on the plot assigned to her large quantities of building materials and swiftly built the foundation for a building and is still rapidly proceeding with the construction of the building. According to the petitioner, the respondents thereby are contumaciously and flagrantly disturbing and upsetting the condition and status quo of the subject-matter of the suit while the matter is pending before the court. THEy are seriously obstructing the court from giving the petitioner the relief prayed for and making a mockery of the rule nisi.

(3.) THE first point that arises for consideration is whether the High Court has power to take action for contempt of a subordinate court under S. 15 (1) of the Act on a petition by a party to the proceedings. S. 15 of the Contempt of Courts Act, 1971, reads: "15. Cognizance of criminal contempt in other cases: (1) In the case of criminal contempt, other than a contempt referred to in S. 14 the Supreme Court or the High Court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the advocate-General. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. (THE explanation is omitted) S. 10 of the Act reads: "10. Power of High Court to punish contempts of subordinate courts: Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: Provided that no High Court shall take cognizance 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, 45 of 1860. " In V. C. Misra v, S. K. Sarkar (1974 Crl. L. J. 962) in para. 3 of the judgment it is said: "a reading of the application along with the prayer contained therein leaves no room for doubt that the petitioner has only conveyed information to the Court of the contempt alleged to have been committed by the opposite party. Once the information has reached this Court, it is open to it to take cognizance of it. " In Para. 15 of the judgment it is said: "the result of incorporating Art. 215 in the constitution is that the power of every High Court as a Court of Record to punish contempt of the subordinate Courts now carries a constitutional sanction behind it and that the power cannot be done away with except through an amendment of the Constitution. " In Para. 25 the Court further said: "we have, however, already held that S. 15 (2) of the 1971 Act, properly interpreted, does not restrict the power of the High Court to punish contempt of the subordinate Court on its own motion and that it merely confers a power on the Court of which the contempt is committed and on the Principal Law Officer of the Government concerned also to move the Court for punishing such a contempt. " In Misra's case, the Allahabad High Court has referred to the following observations of the Supreme Court in Shambhu Nath Jha v. Kedar prasad Singh (1973 Cr ). L. J. 453): "the law of contempt, as observed by this Court in the case of B. M. S. Namboodiripad v. T. N. Nambiar (AIR. 1970 S. C 2015) stems from the right of the Courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all Courts when contempt is committed in facie curiae and by the superior Courts on their own behalf or on behalf of Courts subordinate to them even if committed outside the Courts. Formerly it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Court. " In In the mater of D. B. Vohra (1974 Crl. L. J. 899) in para. 4 of the judgment it is said; "until rules are made under S. 23 of the 1971 Act providing for any matter relating to procedure, the word 'reference' cannot be given any technical meaning and has to be understood in its normal sense which is 'information' of a particular matter. " In Para. 5 of the judgment it is further said: "assuming, however, that sub-section (2) of S. 15 cannot be invoked by reason of the fact that there is not a proper reference before this Court, we do not see why in the circumstances of this case, as stated earlier, the notices issued to the alleged contemners cannot be taken to be suo mote notices under sub-section (1) of S. 15 of the 1971 Act. " In Dharamdeo Rai v. Ramnagina Rai (AIR. 1972 SC. 928)dealing with S. 83 of the Registration Act, 1908 the Supreme Court said: "section 83 is not prohibitory in character and it does not preclude a private person from commencing a prosecution for an offence under the Act without the permission as envisaged in the section. THE section provides only for one type of cases, namely, cases in which the commission of an offence under the Act comes to the knowledge of the Registering Officer in his official capacity and even there, the language of the section is permissive and not mandatory. " Under S. 10 of the Contempt of Courts Act, 1971, every high Court has the same power to punish for contempt of courts subordinate to it as it has in respect of contempt of itself. This is not a new power conferred. This is a power which High Courts in India had from the very beginning as courts of record. Now there is constitutional sanction for this in Art. 215 of the Constitution which reaffirms that every High Court is a Court of record. S. 1. 5 (1) lays down that in the matter of criminal contempt other than that referred to in S. 14. the High Court and Supreme Court can take action suo mote. First of all, S. 15 (1) is not restricted to contempt of the High Court or the supreme Court. Not only that, what S. 10 which confers the power on the High court, insists is that'the same jurisdiction, powers and authority' has to be exercised and the same procedure and practice has to be followed in the matter of punishment of contempts of High Courts and subordinate courts. So, it cannot be said that the suo motu power of the High Court under S. 15 (1) does not extend to contempt of courts subordinate to it. Further, the powers of the High court as a Court of record recognised by the Constitution cannot be taken away by S. 15 (2) of the Act. S. 15 (2) only provides that the subordinate court or the Advocate General or the Law Officer also can move the High, Court in the case of a criminal contempt of the subordinate court. It does not prohibit a suo mote action by the High Court. So, if somebody else brings the criminal contempt of a subordinate court to the notice of the High Court by filing a petition before it, S. 15 (2) of the Act cannot stand in the way of the High court taking suo mote action for contempt under S. 15 (1) of the Act.