NARAYANRAO VITHAL SAYANNA Vs. SOLOMON MOSES

JUDGEMENT

(1.) This is an appeal from an order of Mr. Justice Rangnekar in which ho dismissed a motion by the appellant to punish the respondents for contempt of Court, The learned Advocate General on behalf of the respondents has taken the preliminary point that no appeal lies, and it is only necessary to state the facts so far as it is necessary to appreciate the preliminary point. The respondents are persons interested in a certain Jewish Educational Society known as the Bombay Israelite School Managing Committee, and it appears that in 1928 the Committee of that school was intending to rebuild the school premises, and they invited tenders, and ultimately accepted the tender for the new buildings of the present applicant. Disputes subsequently arose between the Committee and applicant as regards the work which Was entrusted to the applicant under the contract, and in the result a suit was started in July 1929 between certain officers of the School Committee as plaintiffs and Vithal Sayanna, the applicant, as defendant, the claim against him being for an injunction to restrain him from committing alleged breaches of the contract and for damages. In February, 1931, the Committee of the School issued a pamphlet, which is the document complained of, which is headed "First Progress Report" and is a report submitted by the Committee of this school to the members of the community, and in that pamphlet certain comments are made on the dispute with the present applicant. On February 9, 1931, the applicant took out this notice of motion against the respondents, the first three of whom are plaintiffs in the suit, and the others of whom are not parties to the suit, and ho asks for an order for committal of the respondents for their contempt of Court in publishing this pamphlet. Mr. Justice Rangnekar refused to make any order and dismissed the motion with costs.

(2.) Now, the learned Advocate General on behalf of the respondents does not dispute that that order is a judgment within Clause 15 of the Letters Patent, but he says it is a judgment made in exercise of criminal jurisdiction and is, therefore, not appealable under the clause. The difference between civil and criminal contempt is discussed in Halsbury's Laws of England, Vol. VII, at page 280. It is there pointed out that disobedience to an order made in a civil suit constitutes contempt of a civil nature, and any application to punish that disobedience by process of contempt is an application of a civil nature. But it is further pointed out that where the alleged contempt consists in interfering with the due trial of a civil suit, that contempt is of a criminal nature, and a fortiori that must be so where the alleged contempt is by persons who or some of whom are not parties to the civil suit. In support of that proposition, and by way of illustrating the sort of contempt which is of a criminal nature, certain English cases were referred to. In the first place there is the case of O Shea V/s. O Shea and Parnell (1890) 15 P.D. 59. There the respondent had made certain comments upon a trial pending in the Divorce Court, and the Judge in the Divorce Court, on a motion in the divorce suit and also in the matter of the respondent on the motion, had punished the respondent by inflicting a fine upon him. He appealed, and a preliminary objection was taken that no appeal lay having regard to Section 47 of the Judicature Act, 1873. That Act provided that no appeal should lie from any judgment of the High Court in any criminal cause or matter save as therein provided, and it was held by the English Court of Appeal that the contempt in that case, consisting as it did of comments upon a pending suit by a person who was not a party to the suit, was contempt of a criminal nature, and that the order made against the person in contempt was an order made in a criminal cause or matter within Section 47. That case was followed with approval by the English Court of Appeal in the case of Scott V/s. Scott [1912] P. 241. The alleged contempt in that case was the publication of the result of proceedings held in camera, and the Court of Appeal hold that that was a contempt of a criminal nature from which, no appeal lay, I have not overlooked the fact that that case went to the House of Lords where the decision of the Court of Appeal was reversed, but the result of the decision of the House of Lords was that the order which it was alleged had been disobeyed was made without jurisdiction, and there could be no contempt in disobeying an order which was invalid. Now, I think the result of those cases is to show that contempt such as is alleged in this case, that is to say, comments upon a pending trial by persons, some of whom are parties to the suit and some of whom are not, is contempt of a criminal nature, and the question which we have to decide is whether an appeal is precluded by the words of Clause 15 of the Letters Patent of 1865. The material words are :- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being...in the exercise of criminal jurisdiction)....

(3.) It Seems to me clear on the English authorities that the order which the learned Judge was asked to make here was to be made in the excercise of criminal jurisdiction. Whether it could be said also to be made "in the course of a criminal trial" within Clause 25 of the Letters Patent is perhaps doubtful But it seems to me impossible to say that the order was made otherwise than in the exercise of Criminal jurisdiction. Mr. Coltman on behalf of the applicant has relied on a decision of this Court in Navivahoo V/s. Narotamdas Candas (1882) I.L.R. 7 Bom. 5. The contempt in that case was contempt of a civil nature, being disobedience to an order of the Court made in a civil suit, and the point was taken that no appeal lay under the Civil Procedure Code because the order in question was not one referred to in Section 588 of the Code. The learned Chief Justice no doubt says that that argument might have prevailed if the order in question had boon passed in the exorcise of the Court's original civil jurisdiction. He thought that the order was not made in the exercise of the Court's original civil jurisdiction and therefore he says an appeal lies. "under Section 15 of the Letters Patent which provides that an appeal shall lie in the ease of every judgment by a single Judge of the High Court not being a sentence or order passed in a criminal trial". The exact words of Clause 15 seem not to have been present to the mind of the learned Chief Justice. The words are not "a sentence or order passed in a criminal trial" but "in the exercise of criminal jurisdiction". The case is clearly distinguishable from the present case, because the contempt there was of a civil, and not of a criminal nature. I find it rather difficult to see why the order in that case was not made in the exercise of civil jurisdiction, but the case is not an authority which prevents us from holding that the order made by Mr. Justice Rangnekar was an order made under the criminal jurisdiction. That being so, I think the point taken by the learned Advocate General is right and that there is no appeal in this case.