RAGHU NATH Vs. BHAG MAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Single Judge dated January 31, 1983, convicting the appellant under Section 12 of the Contempt of Courts Act and sentencing him to undergo imprisonment for two weeks, and to pay a fine of Rs. 1,000/- or in default of payment of fine to undergo further imprisonment for one week.

(2.) THE facts : -The appellant filed a suit for possession by pre-emption against the respondent. The suit was decreed by the trail Judge. The judgment and decree of the trial Judge was affirmed on appeal by the first appellate Court. Since copy of the judgment and decree of the first appellate Court was not made available to the respondent he moved an application to it for temporarily staying his dispossession to enable him to move this Court and obtain an order of stay of his dispossession. Notice of this application was issued to the counsel representing the appellant in the first appellate Court The counsel made a statement on May 15, 1981 to the effect that in case the appellant had not taken possession of the land decreed in his favour, the decree will not be executed before June 26, 1981. Appellant was delivered symbolical possession of the land on June 22 1981. The respondent moved this Court in regular second appeal against the judgement and decree of the first appellate Court dated June 1, 1981 and on June 24, 1981, this Court ordered that possession of the respondent be not disturbed. Since symbolic possession was delivered on June 22, 1981, the respondent initiated contempt proceedings for taking action against the appellant/decree-holder on the ground that the statement made by his counsel before the first appellate Court was binding on him and he had taken possession in flagrant violation of the undertaking given by his counsel. The learned Single Judge held. that the counsel for the appellant did not plead lack of instructions before the first appellate Court; that he made the statement on June 15, 1981 to the effect that his client would not take possession of land till June 26, 1981 and that the statement was binding on his client. This Court had asked for a report from the Subordinate Judge, Rewari as to when the possession was taken by the appellant and whether the appellate had the knowledge of the undertaking given by his counsel. The Subordinate Judge submitted his report to this Court, He, on examining the evidence produced before him, gave a finding relying upon the appellant's statement that he did not instruct his counsel to prosecute the proceedings after the determination of the appeal. Appellant, in his statement before the Subordinate Judge, specifically stated that he had not instructed his counsel to represent him after the decision of the appeal. The statement of the appellant remained unrebutted. The Subordinate Judge, after examining the evidence produced before him, arrived at the following finding :

(3.) IN the instant case, no such authorization was proved to have been given. The undertaking given by the counsel, as stated above, was unauthorized and not binding on the appellant. In. order to bind the appellant with the statement of his counsel made before the first appellate Court after the decision of the appeal, it was imperative for the respondent to lead positive evidence to establish that the counsel was authorized to make such a statement and he conveyed the contents of the undertaking given by him in Court to his client. In the absence of any evidence to this effect, it will be presumptuous to conclude that the counsel had communicated the undertaking by him in Court to his client.