K.J. PATHARE Vs. S.J. PATHARE

JUDGEMENT

(1.) This is a matter that has been forwarded to us by the Presidency Magistrate, 5th Court, Dadar, for taking action for contempt against the alleged contemnor. The facts necessary for the purpose of this judgment are that the applicant K, J. Pathare filed a complaint in the Court of the said Magistrate against the opponent S. J. Pathare and others for offences under Sections 406 and 380 of the Indian Penal Code. After some adjournments, when that ease came up for hearing before the said Magistrate, oil March 5, 1968, the parties came to terms and the opponent, who is now alleged to have committed the contempt, gave an undertaking to the Court that he would deposit Rs. 4,250 with interest thereon from January 27, 1967, at the rate of 9 per cent, per annum on or before July 10, 1968, with the Deecan Co -operative Housing Society Ltd. In view of that , the complainant stated that he did not want to proceed with the case and the learned Magistrate passed an order discharging the contemnor and his co -accused. On October .14, 1968, the applicant filed an application in the Court of the said Magistrate stating that he had ascertained from the said Society that the opponent had failed to deposit the said sum of Rs. 4, 250 with that Society by July 10, 1968 as he had undertaken to do and he, therefore, prayed for action against the opponent under the Contempt of Courts Act. The opponent filed a written statement in answer to that application on January 7, 1969, in paras. 3 and 4 of which he stated that he was doing the business of manufacturing earthen bricks and expected to be able to pay the said mm of Rs. 4,250 with interest thereon as undertaken by him, but that on account of heavy and unexpected rains his raw material for the manufacture of bricks got completely washed out and he suffered loss to the tune of Rs. 15,000, and in para. 5 of that written statement he stated that on account of that financial Joss in business 'it went beyond my capacity and control to pay the said amount as per the undertaking given to the Court.' The learned Magistrate heard the advocates on both the sides and then passed an order on January 14, 1969 in which he stated that the opponent's statements in his written statement were merely an excuse for not carrying out the undertaking given by him to the Court, and that if the opponent had really suffered any loss as alleged, he should have approached the Court and stated that fact to it, instead of keeping quiet all along till the applicant filed this application on October 14, 1968. He, therefore, held that, the opponent had disobeyed the undertaking given to that Court and referred the matter to this Court for necessary action under the Contempt of Courts Act, 1952.

(2.) AS it appeared to us that the matter needed a full argument, we gave time to the learned advocates on both sides for that purpose and it was ultimately argued before us yesterday. The first thing that I must proceed to consider is what is 'Contempt of Court,' an expression which curiously enough, is not defined by the Contempt of Courts Act, 1952. In Oswald on Contempt (3rd edn.), p. 1, it is stated that the legal acceptation of the term ' contempt' primarily signifies 'disrespect to that which is entitled to legal regard'. Oswald then proceeds to state, 'In its origin, all legal contempt will be found to consist in an offence more or less direct against the Sovereign himself as the fountain -head of law and justice, or against his Palace, where justice was administered.' The learned author, however, then stated that he did not propose to deal in the said work with the primary species of contempt against the King personally, but proposed to consider only contempt, in its secondary or derivative aspect, as an offence against the Courts or persons to whom the judicial functions of the Crown were delegated, or, as it commonly called, 'Contempt of Court'. After discussing the precise connotation of that expression, it is stated in Oswald (p. 6) as follows: To speak generally, Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation. The decision of the Supreme Court in the case of Debabanta v. State : 1969CriLJ401 was cited before us by Mr. Gambhirwala, but the actual decision in that case is of no assistance for the purpose of deciding the present case. The contempt in that case was not contempt of the nature of the contempt in. the present case, but arose out of the alleged disobedience by a subordinate Court of the order of a superior Court. It is further pertinent to note that in the judgment of the Supreme Court there is, what might be called, an indirect definition of the expression 'contempt of Court'. It was stated in that judgment (para. 9) that it is only when a clear case of contumacious conduct not explainable otherwise, arises; that the contemnor must be punished. It would be a sad state of affairs, indeed, if the law of contempt obliged the Court to punish a man for an act which was beyond his control. The contempt in the present case is criminal contempt and reference to the provisions of civil law is inapposite. The principle of the law of contract that if a man chooses to answer for the voluntary act of a third person, and does not in terms limit his obligation to using his best endeavours, or the like, there is no reason in law or justice why he should not be held to warrant his ability to procure that act (vide Mulla's Contract Act, 8th edn., p. 350) has certainly no application to the case of a criminal offence. There are, however, certain provisions contained in the Code of Civil Procedure which are of assistance for the purpose of considering the question with which I am now dealing, viz., whether it is only wilful or contumacious conduct that can amount to contempt. The provisions of Order XXI, Rule 32(1) of the Code of Civil Procedure which are analogous to an action for contempt might usefully be referred to. In Order XXI, Rule 32(1) it is laid down that where a decree, inter alia, for a permanent injunction has been passed, and the party against whom it has been passed has had an opportunity of obeying the decree, but has 'wilfully failed to obey it', the decree can be enforced by his detention in civil prison. It is only wilful disobedience that could justify the action contemplated by Order XXI, Rule 32(1). Even in the case of breach of a temporary injunction, it appears to be well -settled that a party cannot be punished under Order XXXIX, Rule 2(3), which is also a proceeding in the nature of contempt, if he has acted bona fide. Reference may also be made to proviso (b) of Section 51 of the Code of Civil Procedure which enacts that the Court must be satisfied, for reasons to be recorded in writing, that the judgment -debtor had the means to pay the amount of the decree and yet refused or neglected to do so, before a money decree could be executed by his arrest and detention in prison. Under these provisions of civil law, therefore, it is clear that proceedings in the nature of contempt can be adopted only in the case of wilful or contumacious disobedience of orders or decrees of Court.

(3.) IT may, at this stage, be clarified that a breach of an undertaking given to the Court is on the same footing as disobedience of an order of the Court, as far as the question of contempt is concerned. A reference to Halsbury's Laws of England, 3rd edn., Vol. VIII, para. 54, at page 30, and Oswald on Contempt, 3rd edn. pages 117 -118, shows that both the breach of an undertaking given to the Court as well as disobedience of an order of the Court have been treated by Courts of law on the same footing. In the case of Jayantilal v. Waman : (1932)34BOMLR1410 , a question of contempt arose in respect of disobedience of the order of the Court by the person who had been appointed Receiver of the estate in an administration suit. It was observed in the judgment by Blackwell J. in the said case (pp. 1423 -34) that it was not disputed that the High Court has inherited the power of English Courts as far as the power to commit for breach of its order was concerned, and that the contention of the learned Advocate General in the said case was that no power to commit for contempt existed where the breach of the order complained was a failure to pay a sum of money, but the said principle had no application where the Court was called upon to punish, in proceedings for contempt, one of its officers for failure to comply with the Court's order, even if it did amount to failure to comply with an order to pay money. A reference to the facts of the said ease shows (p. 1419) that, in that ease also, failure to pay money was sought to be explained by the respondent on the ground of temporary inability to pay.