PADARATH TEWARI Vs. DULHIN TAPESHA KUERI

JUDGEMENT

(1.) This is an appeal from a most startling order for the arrest and detention in the civil prison of the defendants. A preliminary objection is taken that no appeal lies from the order. In our opinion this objection has no force whatsoever. Under Section 104(h), Civil P.C., an appeal is expressly provided from an order directing the arrest or detention in the civil prison of any person otherwise than in execution of a decree. Even if there had been no provision for an appeal, we would have felt compelled to interfere in revision because there has been a gross travesty of justice in this case. Even a cursory reference to the order-sheet would show that for some reason not easily intelligible the Subordinate Judge proceeded in a very highhanded manner which would in no way do credit to any judicial officer of experience. The most astonishing thing is that the Subordinate Judge himself was fully conscious that there were no express provisions in the Civil Procedure Code which justified the course of action which he took upon himself to pursue. In order to usurp most sweeping powers of arresting the defendants and sending them to jail he took shelter behind the remark: The Civil Procedure Code is not exhaustive and it cannot be said to lay down a procedure for every emergency on account of which the power of the Court hag been left unfettered to chalk out a procedure not provided for in order to do justice.

(2.) If the learned Subordinate Judge imagines that the supposed inherent power makes him the absolute master of the situation so as to enable him to pass any arbitrary orders which he thinks fit against any party to the suit, the sooner he is disillusioned of this false notion the better for him. The provisions for the issue of the warrants of arrests are to be found in the four corners of the Civil Procedure Code. There is also power to get parties arrested or punished when proper proceedings for contempt of Court have been taken in an authorized manner. But it is preposterous to suggest that a Court has power to arrest any person or to send him to jail forthwith without any proper trial in a legal proceeding. In a civil suit for a declaration pending before the Court below it was in issue whether plaintiff 1 was the daughter of defendant 1 born of defendant 4, but there was no specific issue that defendant 4 had never given birth to any child at all. On an application of the plaintiffs filed on 5 January 1981, unsupported by any affidavit, the Court ordered that the vakil for defendant 2 should produce her on 16 January 1931: so that she may be sent to a doctor for medical examination as to whether any issue was born to her.

(3.) The other defendants were asked to be present so that they "might watch the examination by the doctor." The learned Subordinate Judge up to that date had no materials before him to show that defendant 4 was agreeable to submit herself to medical examination. He did not even take the trouble to ascertain this before passing the order. This order was repeated on 15 January, and defendants 1 and 3 were ordered to produce her in Court on 21 January "so that she may be required to undergo medical examination." The learned Subordinate Judge even now did not pause to inquire whether she was herself willing to submit herself to medical examination. On 21 January the parties filed conflicting affidavits but there was yet no suggestion that defendant 4 was herself willing to be internally examined. The learned Subordinate Judge concluded that defendants 1 to 3 were responsible for her non-appearance and ordered that they "be arrested and detained in the civil prison." Defendant 3 was present in Court and he was ordered to be arrested "at once." No proceedings for any contempt of Court were drawn up against these defendants. Warrants for the arrest of defendants 1 and 2 were issued on the same day and the process-servers were ordered to bring defendant 4 to Court. The proces-servers returned the warrants unexecuted as they found the house of defendants 1 and 4 locked up.