STATE OF BIHAR Vs. AMBIKA ROY

JUDGEMENT

(1.) The present case has been registered on the basis of a reference made to this Court under Section 15(2) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act,) by the learned District and Sessions Judge under his memo No.208 dated the 10th of September, 1986, after holding a preliminary enquiry and writing a concise reasoned order of reference dated 218-1986 as Postulated under Rule 15(2) of the Contempt of Courts (Patna High Court) Rules (hereinafter referred to as time Rules), framed under the provisions of the Act.

(2.) The necessary facts leading to this reference, in short, are that one Mukhi Ahir had instituted a title suit bearing Title Suit No. 119 of 1966 against Ambika Roy, hearing of which was going on in the Court of the learned 2nd Additional Munsif. On 8-4-1983, the said Ambika Rai (hereinafter referred to as 'the party-contemner') filed a petition in the Court of the learned District Judge giving rise to Miscellaneous Case No.35 of 1983 for transferring the aforesaid title suit from the Court of the learned 2nd Additional Munsif to any other Court of competent jurisdiction stating therein that the learned Munsif had allowed the plaintiff to examine even those witnesses whose names were not mentioned in the list of witnesses whereas he did not permit the defendant Ambika Rai to examine witnesses beyond the list of witnesses and thereby made discrimination between the defendant and the plaintiff in giving opportunity of leading evidence. It was further mentioned in the transfer petition that the learned Munsif had declared in open Court that the defendant was bound to fail. It was also stated that the learned Munsif was on visiting terms with the plaintiff. The said transfer petition was duly signed by the party-contemner as well as his lawyer. One Akhileshwar Singh, Advocate, Siwan civil Court, aged about 30 years (hereinafter referred to as 'the lawyer-contemner') had sworn an affidavit and filed the same in the aforesaid transfer application stating therein that he had been working as a lawyer in the aforesaid title suit on behalf of the party-contemner meaning thereby the defendant. In his affidavit, he had stated that he had personal knowledge of the allegations made against the learned Munsif in the transfer application and the same were true. He had also stated in the affidavit that in his presence the learned Munsif had declared in open Court that the defendant will lose the case.

(3.) In the said transfer application a rejoinder was filed denying all the allegations and in support of the rejoinder, an affidavit duly sworn was filed. Upon perusal of the transfer application, rejoinder thereto and both the affidavits, referred to above, the learned District Judge by his order dated 12-5-1983 called for a report from the learned Munsif with regard to the allegations made in the transfer application against him who submitted a report denying all the allegations. It was said in the report that the witnesses on behalf of the plaintiff were allowed to be examined outside the list subject to payment of cost of Rs.20.00 to the defendant, the defendant received the amount of cost and cross-examined the aforesaid witnesses examined on behalf of the plaintiff. So far the defendant is concerned, it was reported that he was also allowed to examine the witnesses outside the original list of witnesses submitted in the suit. It was stated in the report that on 14-3-1983 a prayer made on behalf of the defendant to recall DW 2 was rejected, which order was confirmed by this Court in a civil revision whereafter only the transfer application was filed. The learned Munsif had stated that he had never uttered anything in the Court room against the defendants and it was false to say that he was on visiting terms with the plaintiff. On 14-9-1983 before the learned District Judge, one Shri Shree Kant Singh, a very senior counsel of Siwan Bar, made statement in Court that he was senior counsel appearing on behalf of the defendant in the suit and the learned Munsif had not uttered a word that the defendant would lose the case. The learned District Judge having found that serious allegations had been made against the Court concerned, ordered that he would hold an enquiry and summoned Shri Bindhyachal Mishir, a senior counsel appearing on behalf of the plaintiff and the said Shri Shree Kant Singh besides the Bench Clerk of the Court of the learned Munsif, who were examined on 30th of September, 1983 as Court witnesses. The said Shri Bindhyachal Mishir, who was examined as Court witness No. 1, stated that he was appearing as senior counsel on behalf of the plaintiff in the suit in question. He has further stated that at no point of time the learned Munsif declared in Court that the defendant would lose the case. He has also stated that the learned Munsif had not made any discrimination in giving opportunity to the parties to examine their witnesses. Court witness No. 2 was the said Shri Shree Kant Singh who has also made similar statement in the case. Court witness No.3 was Shri Akhileshwar Singh, an Advocate of Siwan Court, who was working in the suit on behalf of the defendant. He has stated that the statement made by him in the affidavit that the learned Munsif had declared in Court that the defendant will lose the case was not correct. He has further stated that he made the statement in the affidavit bona fide because his client told him that in his presence the learned Munsif had declared in open Court that the defendant would lose the case. Court witness No. 4 is Bench Clerk of the Court of the learned Munsif who has stated that never the learned Munsif had declared in Court that the defendant would lose the case.