HEM BALA DASSI Vs. SUNDAR SHAW

JUDGEMENT

(1.) This case has been the occasion for an interesting debate on two important questions of procedure relating to proceedings for contempt of Court, in view of the importance of the issues and the somewhat unsettled character of the practice of the Court, we invited Mr. H.N. Sanyal to appear as an 'amicus curiae'. Mr. Sanyal readily responded to our request and we are grateful to him for the assistance he rendered.

(2.) The points I have referred to arise out of the following facts: The appellant Hem Bala Dassi is the owner of premises No. 5, Ratan Sarkar Garden Street, Calcutta, which she let out to one Lalit Mohan Saha and Lalit Mohan, in his turn, sub-let the premises to a number of sub-tenants. Among the sub-tenants were the respondents to this appeal, Sunder Shaw, Kaloo Shaw, Hira Shaw and Nand Lal Shaw. In 1948, the appellant brought a suit against Lalit Mohan Saha, which was Suit No. 2449 of that year, and in that suit she obtained a decree for ejectment. In due course she attempted to execute the decree in the manner provided for in Order 21, Rule 35, Civil P. C., but was resisted by the respondents who ultimately brought a suit for a declaration that they were tenants under the decree-holder and were not liable to be ejected in execution of the decree obtained by her against Lalit Mohan. That suit was Suit No. 910 of 1949 and it was disposed of by P. B. Mukharji, J. on 6-6-1950. One of the plaintiffs, Nand Lall Shaw, had never appeared and so far as he was concerned, the suit was dismissed with costs. As regards the remaining three plaintiffs, Sundar Shaw, Kaloo Shaw and Hira Shaw, the suit was disposed of by consent on certain terms and one of the terms was that the said three plaintiffs gave an undertaking to the Court to vacate the rooms occupied by them within eight months from the date of the decree. The period of eight months expired on 6-2-1951. The appellant's case is that while Nand Lall Shaw vacated the premises, Sundar Shaw, Kaloo Shaw and Hira Shaw did not but, on the other hand, while retaining possession of the rooms occupied by them in violation of the undertaking given to the Court, they caused certain betters to be written by a solicitor in which it was falsely stated that they had vacated the old rooms and taken possession of certain new ones in pursuance of a fresh agreement with the appellant.

(3.) On 23-5-1951, the appellant took out a notice of motion which stated that on 4th June an application would be moved before Sinha, J. for an order, 'inter alia' that "the plaintiffs 1, 2 and 3 Sundar Shaw, Kaloo Shaw and Hira Shaw be committed to the prison for contempt of the Hon'ble Court." That notice was served on Kaloo Shaw personally, but in the case of Sundar Shaw and Hira Shaw, it was served by affixation, as they were not found on the premises and as Kaloo Shaw refused to accept service on their behalf. When the motion appeared in the list of new motions on 4th June, an attorney appearing for the respondents informed the learned Judge that two of his clients had not been served, but he was not prepared to contend at once that, as against them, the application should be thrown out 'in limine' and only asked for an adjournment to consider his position. The learned Judge adjourned the motion to the 8th June. Thereafter, the appellant took out a fresh notice of motion, returnable on the 8th June, and served it personally on Sundar Shaw and Hira Shaw. That notice was the same as the previous notice, with only the date changed, and it contained a note to the effect that the learned Judge had directed copies of the application papers to be served on Sundar Shaw and Kaloo Shaw, though in fact no such direction had been given. No further application was made in connection with the fresh notice of motion.