Supreme Court of India

1. R.M. Ramaul vs State Of Himachal Pradesh And Ors. on 29 October, 1990

Equivalent citations: AIR 1991 SC 1171, 1991 CriLJ 1415, 1991 Supp (1) SCC
198
Bench: M Venkatachaliah, N Kasliwal

ORDER

1. In this complaint of contempt of Court, complainant alleges a wilful disobedience by

the H.P. Tourism Development Corporation of the directions of this Court made on 2-
12-1988, in CA 6144 of 1983 in that respondents despite the specific directions in the
order for restoration of complainant's seniority in service over and above two other
officers, viz., N.K. Sharma and H.R. Choudhary, the said Corporation had resorted to
hairsplitting technicalities in order to deny to the complainant the benefit of the order
of this Court. It is urged that if the complainant's seniority had been so restored in
accordance with the order the case of the complainant for promotion to the post of
Deputy General Manager would require consideration with effect from 28-5-1982 on
which date his admitted-juniors had been promoted entitling complainant also to all
the monetary benefits of such promotion. What the corporation-is said to have done is
that while it reviewed the promotions with effect from 28-5-1982 and granted the
promotion to the complainant, it treated the promotion for the period from 28-5-1982
up to 3-9-1986 - on which latter date complainant, even according to the Corporation
itself, had become entitled to and had been granted promotion - as a mere notional
promotion without any monetary benefits.

2. In our view complainant's grievance is a legitimate one. Though there was no

specific direction in the order of this Court to consider complainant's case for
promotion with effect from 26-5-1982 such a relief was implicit in the reasoning of the
order. Indeed, the Corporation in convening the D.P.C. and reviewing the promotions
and granting the notional promotion to the complainant for the period between 28-5-
1982 to 3-9-1986, had vitally conceded this position. The withholding of the monetary
benefits in respect of this period is inconsistent with what was decided in the
judgment and what complainant was clearly entitled to. Since there was no specific
direction in this behalf in the order, technically, there may be no case for punishment
for contempt; but we make it clear that the promotion for the period from 28-5-1982
to 3-9-1986 should be accompanied by the monetary benefits. If a specific direction is
necessary we issue it here and now. The appropriate monetary benefits shall be
granted within 2 months from today.

3. There is yet another fall-out from what is decided in the order. It is also appropriate
that the further promotions consistent with the seniority as declared by the judgment
should also be considered in view of the fact that complainant's junior in service had
been granted such promotion. Petitioner might also become eligible for consideration
for promotion to the post of and appointment as Additional General Manager in the
post that was specially created on 5-5-1987. His case for consideration for promotion
shall have to be reviewed as on 5-5-1987 on which day his junior, viz., N.K. Sharma
had been promoted. It is open to the authorities to put in to the scale the question
whether complainant's possesses the requisite eligibility. Complainant's case shall
accordingly be examined for the post of Additional General Manager and if the
promotion is granted it shall now necessarily have to be only on a notional basis as
the post is said to have since been abolished. But such notional promotion if granted
shall also be accompanied by the monetary benefits up to the date of the abolition of
the post. This consideration shall be bestowed within three months from today.

4. The contempt-petition is disposed of with foregoing directions.

Madras High Court

2. Vidya Charan Shukla vs Tamil Nadu Olympic Association ... on 3 January,
1991
Equivalent citations: AIR 1991 Mad 323, 1991 CriLJ 2722
Author: Mishra
Bench: Mishra, Govindaswamy, Kanakaraj

ORDER Mishra, J.

1. The respondent in Contempt Application No. 157 of 1990 has preferred this appeal
against an order passed in Sub Application No. 230 of 1990 in which learned trial
Judge has directed that the first defendant in C.S. No. 481 of 1990 continues to be the
President of the Indian Olympic Association and the resolutions, if any, purported to
have been passed appointing the appellant as President of the Indian Olympic
Association would be of no legal consequence and would have no legal effect and the
office premises of the Indian Olympic Association be restored by him to the first
defendant in the suit.

2. The Tamil Nadu Olympic Association represented by its General Secretary, the
second plaintiff, who has also been the Joint Secretary of the Indian Olympic
Association, has filed the suit impleading the first defendant described as the
President of the Indian Olympic Association and the second defendant described as
the Secretary General of the Indian Olympic Association and alleging that the
Association is a Society registered under the Societies Registration Act having its office
at New Delhi. The members of the Association consist of National Sports
Federations/Associations whose sport is included in the Olympic/Asian or
Commonwealth Games, National Sports Federations/Associations which represent
widely played Indian sports recognised by the Association, Olympic Associations of
States as well as centrally administered Union Territories, service Sports Central
Boards and Indian citizens who are member of the Olympic Committee. The
Association has its own constitution containing the Memorandum of Association and
Rules and Regulations which is the binding contract between the members of the
Association. The management of the Association is entrusted to the Executive Council
constituted under the Rules. Article VII of the Constitution provides that election
would be held once in four years at the Annual General Meeting to elect the Executive
Council Members from amongst the representatives of the members present and that
an officebearer of the Association would hold office as such for one term of four years
on obtaining simple majority votes in the election. In the election held on 27-11-1988
at Park Sheraton Hotel, Madras, the first defendant was elected as the President and
the second defendant was elected as the Secretary General and in addition as provided
under Article VII above, Executive Council Members were also selected and, "including
the two I.O.C. representatives, there are now 39 members of the Executive council
with whom the administration of I.O.A. is entrusted under the provisions of the I.O.A.
Constitution."

3. On 16-5-1990 however a notice was served in the office of the President of the
Association stating, "Notice is hereby given that a Requisitioned Special General
Assembly Meeting of the Indian Olympic Association under Article VI of the
constitution of the I.O.A. be convened at New Delhi, the head quarters of the I.O.A.
within one month from the date of receipt of this letter.

2. As required under Article VI of the Constitution the requisition has been signed
both by the President and Secretary General of 17 affiliated units of the I.O.A. Their
list is at Annexure I which is accompanied by the letters signed by them giving notice
for the requisitioned meeting. In addition 7 Presidents/Secretary Generals of the
affiliated units have also signed the tetter requisitioning the meeting. Their list is at
Annexure 11 accompanied by the letters signed.

3. The Agenda for the aforesaid requisitioned meeting will be to consider and pass the
following resolution and to take consequential action thereof:

"Resolved that this house has lost confidence in the present Executive Council of the
Indian Olympic Association and to Elect no Executive Council."

4. In case you fail to convene the said requisitioned meeting at New Delhi within the
specified period, the requisitionists shall hold the said meeting on 16th June 1990 or
on any day thereafter at National Stadium, New Delhi to consider the above noted item
of the Agenda."

4. The Executive Council according to the plaint, at a meeting held on 28-5-1990

decided that in view of certain facts (alleged in the plaint) the Special General Meeting
could not be convened. Yet, by a notice issued on 28-5-1990, the first defendant
convened a Special General Meeting of the Association on 15-6-1990 at Park Sheration
Hotel at Madras to consider and pass the following resolution as required by the
requisitionists.

"Resolved that this House has lost confidence in the present Executive Council of the
Indian Olympic Association and to elect New Executive Council leaving the legality of
the requisition to be decided by the General Assembly. The plaintiffs have not only
sought a declaration that the notice dated 28-5-1990 issued by the first and second
defendants on the basis of the requisition notices convening the Special General
Meeting of the Indian Olympic Association on 15-6-1990 is illegal, null and void, but
also a consequential injunction restraining the defendants from convening and
conducting the Special General Meeting on the said date or on any other day at any
other place and from considering and taking decision on the resolution mentioned in
the notice. The plaintiffs have also filed an affidavit and application in the said suit
seeking an order of injunction restraining the defendants from convening and holding
a Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel,
Madras or on any day at any place and from considering and taking any decision on
the resolution mentioned in the notice dated 28-5-1990. In this affidavit, the second
plaintiff K. Murugan stated, "I understand from the report published in Newspapers
that the I.O.A. represented by the Secretary General filed a suit in the Delhi High
Court for restraining the rival meeting convened by the rcquisitionists on 15-6-1990 at
Delhi for considering the same resolution and the said High Court has granted an
injunction and also appointed an observer for the Madras Meeting. The validity and
legality of the Madras Meeting is not the subject matter in that suit. Further we are
not parties to that suit. Hence I submit that the said order which has not considered
the validity of the Madras Meeting is not binding on any of us. In addition the said suit
has been filed without any authority of the General Assembly,"

and "I submit that the object granting the injunction would be defeated by the delay if
notice is to be ordered, since the defendants would try to evade notice, we undertake
to coming with the provision of 0.39, R. 3, I.P.C. immediately,"

5. The suit and the application for interim injunction were filed on 11-6-1990 and the
Judge's Summons under Order 14 Rule 8 of the O.S. Rules read with Order 39 Rules
1 and 2 and S. 151 of the Code of Civil Procedure were handed over to the learned
Counsel for the plaintiffs on the same day.

6. A further affidavit was filed by Thiru Murugan on behalf of the plaintiffs on 14-6-
1990 in which it was stated that they had filed the suit for a declaration that the
meeting notice issued by the first defendant in pursuance of the requisition letters
given by some member units of the Association was null and void and illegal and for a
permanent injunction restraining the defendants from convening and conducting a
Special General Meeting of the Association on 15-6-1990 at Park Sheraton Hotel,
Madras on or any day or place and that they had filed an application seeking for
interim injunction restraining the defendants from convening and conducting the said
meeting on 15th June.

"Since the Hon'ble Court was re-opened after summer holidays on 11 th only we could
not file the suit and the application earlier and seek for interim orders,"

and that "I submit that if this Hon'ble Court is not inclined to grant the interim order
of injunction restraining the holding of the Special General Meeting for any reason, I
pray that this Hon'ble Court may be pleased to order that the resolution viz., "Resolved
that this House has lost confidence in the present Executive Council of the Indian
Olympic Association and to elect new Executive Council."

shall be passed in the Special General meeting of the IOA to be held on 15th June
1990 at 12.15 p.m. at Park Sheraton Hotel, Madras by secret ballot only and that the
IOA President shall preside over the said meeting."

On that very day Learned Trial Judge ordered for Judge's summons under Order 14
Rule 8 of the O. S. Rules read with S. 151 of the Code of Civil Procedure and handed
over the same to the learned counsel for the plaintiffs. This time it said, why the Court
be not pleased to order that the resolution mentioned in the meeting notice dated 28-
5-1990 issued by the defendants be passed in the Special General Meeting of the
Association to be held on 15-6-1990 by secret ballot only and that the first defendant
would preside over in the said meeting and it seems, the defendants entered
appearance and the Court ordered, "Both applications were heard. It was admitted by
the learned Senior Counsel Mr. R. Krishnamurthy, appearing for R1/D1 that the
meeting has been convened to be held on 15-6-90 and almost all the persons had
come to Madras and in asmuch as it has been submitted in Appln. No. 2593/90 that
in the event of the meeting being held and this Court not granting stay of the Special
General Meeting to be held on 15-6-1990 at Madras, proper direction may be issued
for voting by secret ballot with regard to the resolution. It is to be seen in a suit filed in
the Delhi High Court, it appears the learned Judge of the Delhi High Court held that
the meeting convened OP the basis of the requisition was not valid but an order had
been passed appointing an observer for the meeting to be held on 15-6-1990 herein.
As submitted by the Learned Senior Counsel for R1, quite likely all the persons,
concerned could have come here and inasmuch as this applicant/plaintiff has filed
Application No. 2593/90 seeking for voting by secret ballot, I feel that there need not
be any order of stay or injunction restraining the respondent from convening or
holding the Special General Meeting, but there could be an order directing resolution
mentioned in the Meeting Notice to be put to vote by secret ballot, and inasmuch as
the observer is also appointed by the learned Judge of the Delhi High Court, I feel that
the ballot papers or voting papers that are being issued to the voting persons could be
signed before issue by the R1 who is the Secretary of the Association as well as the
observer appointed by the Delhi High Court and only such ballot papers or voting
papers signed by the Secretary of the Association and the observer are held to be valid.
The meeting convened as scheduled on 15-6-1990 is to be presided over by R1 who is
the President. Ordered accordingly.

6A. In the contempt application, on affidavit Thiru Murugan has alleged that on 15-6-
1990 all the member representatives numbering 124 assembled at the meeting hall at
12-15 p.m. and the meeting commenced as scheduled and the respondent/ appellant
herein however barged into the meeting hall with about 100 outsiders shouting that
Sri B. S. Adityan, the President should not preside over the meeting and, "The
President informed the members about the orders issued by this Hon'ble Court and
the Delhi High Court. The observer also read out order of this Hon'ble High Court and
said that the members must abide by the order.

The respondent and his men shouted that there will be voting only by show of hands
and they rushed towards the chairs occupied by the President, Secretary General and
the Observer. The said persons placed two chairs near the President and the
respondent occupied the same and declared that the resolution of No Confidence has
been passed and he has been elected as the President of I.O.A. When Sri B. S, Adityan
instructed the officials of I.O.A. to issue the ballot papers the respondent instigated his
supporters to go and seize the papers.

Apprehending violence the President Sri. B. S. Adityan gave a request to the

Commissioner of Police for a bandobust for peaceful voting. The President, Secretary
General, the observer and the members including the respondent and they were sitting
in the Meeting Hall till 4-30 p.m. In response to the request of the President, the Police
Officers came to the Meeting Hall and stood guard for the ballot papers and the ballot
box. Thereafter the officials started issuing the ballot papers signed by the Secretary
General and the observer.
As soon as a few votes were polled at the instigation of the respondent his supporters
rushed towards the Observer and the President and the ballot box and iried to assault
the President and the Observer and snatched away the ballot box and the ballot paper
box. The Police Officers pushed away the miscreants. One of the respondent's men
assaulted an Assistant Commissioner of Police who was standing as guard to the
observer.

Fearing further violence the Police Officer requested the Observer to go to a safer place
outside the hall. Pandemonium prevailed and in order to avert unpleasant occurrences
the President adjourned the meeting slating that further date will be announced after
obtaining orders from Court since the convenience of the observer has to be
ascertained.

The news reporters who were present from the morning and who were witnessing the
unruly behaviour of the respondent and his group have reported about all these facts
in the newspapers.

The respondent has now given a statement to the Press that the resolution of No
Confidence motion has been passed by majority of votes by show of hands and that he
has been elected as President."

7. In the sub-applications filed in the contempt application, it is stated that the order
of this Court would stand violated and any such person who is guilty of violating an
order or abetting the violation of such order would also be guilty of contempt of this
Court if.

"(1) The Special General Meeting were to be held other than under the Chairmanship
of the President of the Indian Olympic Association Thiru B. S. Adityam, (2) The voting
were to take place at such Special General Meeting other than by secret ballot; or (3) If
the ballot papers, in case a ballot were to be taken, were not signed both by Thiru
Radhir Singh, Secretary General, Indian Olympic Association as well as Thiru Avadh
Behari Rohatgi, former Judge of the Delhi High Court and observer appointed by the
Delhi High Court in the Special General Meeting to be held on 15-6-1990 at Madras."

It is submitted,

(i) That outsiders other than members of the Indian Olympic Association were present
inside the meeting hall where the requisitioned meeting was taking place;

(ii) That entry to these outsiders was denied by the members of the Indian Olympic
Association posted at the entrance door of the hall but by reason of Thiru V. C. Shukla
shouting to these members and asserting himself under cloak of his status as a
Member of Parliament and a former President of the Indian Olympic Association the
outsiders brought by him gained entry into the meeting hall.

(iii) That Shri Avadh Behari Rohtagi, former Judge of this Hon'ble Court and Observer
read out the order of this Hon'ble Court in CMP No. 6953 of 1990 to the entire
assembly before commencing voting by secret ballot.
(iv) That this Hon'ble Court's order required the poll to be conducted through secret
ballot but Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh and
persons who are outsiders pounced on Thiru Avadh Behari Rohtagi, former judge of
the Delhi High Court and assaulted him, tore off the ballot papers, took away the
ballot boxes and prevented this Hon'ble Court's order from being implemented.

(v) That thereafter the meeting was adjourned by (he President of the Indian Olympic
Association who had been directed to Chair the meeting by this Hon'ble Court and
whose adjournment therefore would bind the members present at the Special General
Meeting, but however Thiru V. C. Shukla today claims that he had held a meeting at
which he had been elected President of the Indian Olympic Association. 1( would
follow that any such meeting held by him without its being chaired by Thiru B. S.
Adityan, the President of the I.O.A. and after Thiru B. S. Adityan, President I.O.A. had
adjourned the meeting would be in total violation of the order of this Hon'ble Court.

(vi) To the extent that the so called meeting was not even purported to have been held
by the procedure of secret ballot, the express direction issued by this Hon'ble Court
has been flouted.

(vii) It would automatically follow that in view of the fact that the so called election
held by Thiru V. C. Shukla was not by secret ballot the question of the ballot papers
being signed both by Thiru Randhir Singh, General Secretary of Indian Olympic
Association as well as by Thiru Avadh Behari Rohtagi would not arise and this
direction automatically stands violated."

and it is said, "What follows out of the narration of the facts mentioned above is
that Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh have not only
flouted and violated the orders of this Hon'ble Court but have shown their total
contempt for the institution of the Judiciary thus seriously exposing the Judicial
organ of the State of Public ridicule. I seek the leave of this Hon'ble Court to implead
Thiru Mishra in this petition for contempt."

Stating that the Asian Games were to be held in Beijing, China on and from 22-9-1990
and all the arrangements for the Asiad including the selection of players, managers
had been made, the teams in each discipline selected by the respective Federation and
already forwarded by the present committee headed by Thiru B. S. Adityan to the
Asian Games Organisation Committee, were in the coaching camp and the President
and the Secretary General had to countersign the identification cards and alleging that
the only motive behind the blatant and open violation by the respondent/appellant, a
Member of parliament, former Cabinet Minister and a former Chief Minister, of the
orders of this court, which had been read out by Thiru Avadh Behari Rohatgi at the
commencement of the meeting with so many witnesses including the newspaper
reporters was to somehow or other usurp the office of president of the Indian Olympic
Association with the hope that the Govenment of India and the Ministry of Sports
would support him in his adventure so that he could be the president of the Indian
Olympic Association to represent India at the Asiad to be held in Beijing and the
respondent appellant on the very next day, broke open the lock of the office of the
Indian Olympic Association in the Jawahar Lal Nehru stadium and had physically
trespassed and occupied the office, plaintiff/applicant sought a direction that Thiru E.
S. Adityan continued to be the president of the Indian Olympic Association and that
the meeting, if any, purported to have been held by Thiru V. C. Shukla after the
adjournment of the Special General Meeting on 15-6-1990 and the resolution if any
purported to have been passed appointing Thiru V. C. Shukla as President of the
Indian Olympic Association would be of no legal consequence and would have no legal
effect.

8. The respondent/appellant however appeared and filed a counter-affidavit in the

contempt application. He has stated in the counter-affidavit that he came to know
about the orders of this Court only after the meeting was concluded and, "Curiously
when lot of publicity was being generated by this issue the newspapers which came
out on the 15th June Morning 1990 did not contain any report of the orders of this,
Hon'ble Court passed on 14-6-1990 itself."

And alleged that the first defendant in the suit had intentionally not brought to the
notice of the members the order passed by this Court before the meeting because of
two reasons. (1) Because the entire General Body of I.O.A. was aware of the closeness
of the Association between the Plaintiffs/Petitioners and Thiru B. S. Adityan (first
defendant in the suit) and the fact that the suit was a clear abuse of process of Court
and obviously collusive in nature, "If the orders were made known Thiru Adityan
would possibly have lost any remaining sympathy which the General body would have
for him and defeat him at the election. Therefore it suited his purpose to withhold
service of the order. If he were really eager to enforce the order, the same could easily
have been affixed at the entrance of the meeting hall or even xeroxed and handed over
to the members, neither of which were done".

Secondly, both Thiru Adityan and Thiru Murugan were part of the General Body in
1980 which amended the Constitution of I.O.A. to make voting by show of hands
mandatory, "Indeed it was by show of hands on a resolution moved by the Plaintiffs
among others that I am unseated from my Presidency in Trivandrum in 1987."

He has stated that the collusive nature of the suit would be further evidenced by his
name not figuring in the list of parties in the suit. He has alleged that Thiru Adityan
and his men including the plaintiffs had deliberately withheld the information about
the orders of this Court because Thiru Adityan knew that he would have possibly lost
even the remaining sympathy which the General Body would have for him and would
be defeated at the election and that it was he who had tried to create a pandemonium
with the sole purpose of calling off the meeting and declare himself elected by secret
ballot.

9. The plaintiff/respondents supported the allegation of contempt by filing a copy of

the order of the Delhi High Court in I.A. No. 4515 of 1990 in Suit No. 1871 of 1990, a
report of the observer appointed by the Delhi High Court and submitled in Suit No.
1871 of 1990 in the Delhi High Court, an extract of a newspaper report supported by
the affidavit of the Reporter and a copy of the First Information Report lodged by a
Police Officer.

10. The respondent/appellant supported his stand by filing an affidavit of one V. K.

Malhotra, who is the President of the Archery Association of India, a Member of
Parliament and one of the members of the Association and affidavit of one G. S.
Mandar, the President of the Wrestling Federation of India (Director General of Central
Industrial Security Force) and a member of the Association, who attended the meeting
and prepared the minutes of the meeting.

11. Thiru Murugan has filed a reply-affidavit and alleged, "No meeting at all was held
at the Park Sheraton Hotel on June, 15, 1990 at which any resolution of no confidence
was passed or V. C. Shukla elected President of the I.O.A. or where he was authorised
thereafter to nominate any executive Council. That is for ihe reason that the report of
the observer or any of the two other reports including the affidavit of the petitioner
herein, give a true and faithful account of what traspired at the meeting where persons
who held high offices or were office-bearers of sporting associations or federations
were prepared to resort to hooliganism, rioting and violence for the purpose of seizing
a powerful organisation and taking over control. The action of V. C. Shukla and his
supporters which is vividly described in these three reports would show that if they
are allowed to retain their advantage or benefit of their extra-legal actions including
their resorting to violence and rioting even for a day, the rule of law would suffer the
credibility of the proceedings of court would be seriously affected. It is obvious that the
minutes are fabricated ones. No meeting was in fact held on June 15, 1990 in the Park
Sheraton Hotel, that signatures were collected subsequently as the minutes and the
signatures have seen the light of the day for the first time only on 25th of June 1990.
Those fabricated minutes do not even speak to the presence of the observer or
anything that he had said and done on that day. A fraud had been perpetrated on this
Hon'ble Court by V. C. Shukla by pretending to have been elected at a meeting held on
that day in the Park Sheraton Hotel and by fabricating minutes of such a meeting. The
respondents are guilty of having filed forged documents before this Hon'ble Court and
the petitioner reserves his right to take criminal action by filing appropriate
proceedings u/S. 340 of the Criminal Procedure Code."

12. Learned trial Judge has disposed of the sub-application only saying.

"In disposing of this Sub Application it is not relevant or necessary to go into the
question of contempt, that I feel the contention put forward that there was no
intimation or information or knowledge about the order passed by this Court at the
meeting cannot at all be accepted. The learned counsel for the respondent submitted
that no reliance could be placed by this Court on the report of the observer and merely
because the observer happened to be a Retired Judge of the Delhi High Court,
importance need not be attached to them and according to the learned counsel, since
the said observer had been paid Rs. 20,000/- by way of cheque issued by the IOA
which was allowed to be encashed by V. C. Shukla, the report is a biased one. As
regards this contention I wish to point out that this Court in placing reliance not
because he happened to be a retired Judge of the Delhi High Court, but he happened
to be an observer appointed by the High Court whatever office he held before. I do not
think that the said observer could have wholly given a wrong version of the incident as
regards the order passed by this Court being made known to V. C. Shukla and others
by the observer as well as by B. S. Adityan. Since the resolution proposed to be moved
against Adityan, it was not proper for Mr. Adityan to be the President of the meeting.
Such an objection could have been raised and objection could have been given in
writing to Adityan and they would have requested the meeting to be postponed to get
further orders from this Court. Even under the Constitution of IOA the President shall
preside over the meeting of the Assembly and the Executive Council. Even assuming
for a moment that the order of this Court directing Adityan to be President of the
meeting was not made known, the Constitution IOA lays down that he shall be the
President of such meeting. When the requisitionists wanted him not to preside over
the meeting, as observed earlier, there could have been a requisition given to the
President not to preside over the meeting."

Learned trial Judge has found that on the facts pleaded before him, the plaintiff
respondents were entitled to come forward with the prayer that the alleged resolution
purported to have been passed by V. C. Shukla as the President of Indian Olympic
Association would be of no legal consequence and would have no legal effect and for a
further direction that the office premises of the Indian Olympic Association be restored
by him to B. S. Adityan.

13. The appellant first filed Contempt Appeal No. 5 of 1990 which was posted before
the First Bench of this Court. A preliminary objection was raised on behalf of the
respondents as to the maintainability of the contempt appeal. The appellant then filed
a petition in C.M.P. No. 9627 of 1990 praying therein, "Should this Hon'ble Court
deem that a contempt appeal as the one filed above is not maintainable, the appellant
prays that this Hon'ble Court, in the interest of justice, be pleased to order conversion
of this Contempt appeal as an appeal filed under Cl. 15 of the Letters Patent Act in the
interest of justice."

After hearing learned counsel for the parties, the First Division Bench allowed the
prayer and permitted the conversion of the contempt apeal into a letters patent appeal.
The issue as to the maintainability of the contempt appeal has already been concluded
by an order of this Court dated 14-8-1990. The impugned order however has been
stayed by a Bench of this Court by an interim order dated 14-8-1990 in C.M.P. No.
9042 of 1990. The situation as on this date is that the appellant is functioning as the
President of the Indian Olympic Association and it is stated that a new Executive
Council has been nominated by him which has since assumed office.

14. To complete the narration of facts, we may here state that at some stage of the
proceedings before this Court, certain Special Leave Petitions were preferred before the
Supreme Court by Sri Murugan and the Tamil Nadu Olympic Association and the
Supreme Court on 5-9-1990 passed orders during the pendency of this appeal to the
effect that the affairs of the Indian Olympic Association are in the very sorry state
indeed and urgently need looking into it observing, "Unless some remedial measures
are taken, it appears that it might be difficult to conduct the management of the
Association in a democratic manner in accordance with its constitution."

The Supreme Court passed no substantive order in the matter as it found that the
appeal was to be heard by this Court, but ordered, "There will however be an order
that neither Mr. V. C. Shukla nor Mr. Adityan shall represent the Indian Olympic
Association at the Asian Games commencing on September 22, 1990. It is clarified
that this order will not prevent either of them from going to attend the Games in their
private capacity or in any other capacity. The Government of India, if it think fit may
nominate any person eminent in the field of sports other than a party to the dispute in
this case to represent the Government and accompany the Indian Olympic Team. It is
clarified that such person shall, however, not claim in any manner to represent the
Indian Olympic Association but will accompany the team merely as a representative to
the Government of India.

15. Government of India however has given a letter on 20-6-1990 to Sri V. C. Shukla
Stating, ".....in order to avoid any deadlock in the functioning of Indian Olympic
Association (IOA) particularly in view of our participation in the forthcoming Beijing
Asian Games being held in September-October 1990, Government would deal with you
as President, IOA on interim basis, till such time fina! decisions are taken in respect of
any matters pending in court between you and others."

16. There was a suit filed in the Delhi High Court being Suit No. 1871 of 1990 in
which a petition I.A. No. 2515 of 1990 was also filed. The said suit and the petition
were filed by the Indian Olympic Association through its Secretary General that is to
say that second defendant in C.S. No. 481 of 1990 on the file of this Court. A learned
single judge of the Delhi High Court on 8-6-1990 disposed of the petition for interim
injunction by recording that the President of the Plaintiff Association that is to say the
first defendant in C.S.No. 481 of 1990 had already convened a meeting at Madras on
15-6-1990 and thus no parallel meeting should be held at Delhi and accordingly
ordered, "I am of the opinion that plaintiff has made a good prima facie case. The
balance of convenience also lies in favour of plaintiff as the President of Plaintiff
Association has already convened the meeting at Madras on June 15, 1990. Plaintiff
will suffer an irreparable loss and injury in case, a parallel meeting is held.

It is made clear that in the Special General Meeting to be held at Madras on June 15,
1990, the resolution with regard to loss of confidence in the present Executive Council
shall also be considered and put to vote. All the members shall be entitled to
participate in the meeting and shall have the right to exercise their votes.

In my view, an observed to be appointed by this Court, should be present at the

Special General Meeting to be held at Madras on 15th June 1990. I appoint Mr. V. P.
Singh, Senior Advocate, as Observer for this purpose. His tentative fee is fixed at Rs.
10,000/-. All his expenses shall be borne by the plaintiff Association."

It appears that by a subsequent order of the Court Mr. V. P. Singh was replaced by
Mr. Avadh Behari Rohtagi, a retired Judge of the Delhi High Court, who it is admitted,
was present on 15-6-1990 at the commencement of the meeting at Park Sheraton
Hotel. He has submitted a report dated 31-6-1990 in which he has stated that he
reached the venue of the meeting at 11-30 a.m. on 15-6-1990. The meeting was to
begin at 12-15 p.m. When however he reached, an order of the Court dated 14-6-1990
passed in C.S. No. 481 of 1990 was served on him. In that order, Learned Judge
directed that the voting on the resolution would be by secret ballot and ballot papers
would be signed by the Secretary General of the Indian Olympic Association as well as
by the observer appointed by the Delhi High Court and only such ballot papers as
were signed by them would be held to be valid. The Court had further directed that the
meeting to be held on 15-6-1990 would be presided over by Sri Adityan who was the
President of the Indian Olympic Association. Since the Delhi High Court had allowed
the Special General Meeting to consider and vote upon the resolution afore-quoted
which had been moved by certain members of the Association against the present set
of office-bearers headed by B.S. Adityan. There were about 123 members who were
divided into two groups, one headed by Adityan and the other headed by Shukla.
Before the resolution could be considered and put to vote, Vijay Kumar Malhotra, a
leading requisitionist announced that the requisi-tionists had no confidence in Adityan
and that they did not want him to preside the meeting and Mandher, President of the
Wrestling Federation of India, was requested to take the chair. Mandher took his seat
near Adityan and proposed name of V. C. Shukla for the office of President. Thereafter,
the report says, "At this stage 1 announced that this was illegal and brought to the
notice of the abuse the order of the Madras High Court served upon me. V. C. Shukla
came to me. I showed him the order. He read it. Similarly V. K. Malhotra came to me
and read the order. Others also saw the order. Everyone had come to know that the
Madras High Court had directed Voting on the resolution by secret ballot and Adityan
to preside at the meeting, After his name was proposed, Shukla came and set near us
where Adityan, President, Randhir Singh, Secretary-General, and I were sitting.
Shukla and Adityan began to talk. Adityan insisted on secret ballot as directed by the
Madras High Court. Shukla did not agree. He refused to recognise the Madras High
Court order. This talk between the two went on for the rest part of the day to find out
some solution or compromise formula. When no agreement was reached Adityan
announced that voting by secret ballot will take place. Ballot papers and ballot box
were brought. One or two persons cast their votes. But voting was riot allowed to go
on. The requisitionists tore the ballot papers and smashed from my hand. I was
pushed aside and manhandled. There was a pandemonium. The Police had to
intervence to restore order so that voting takes place."

According to this report, "The long and short of the entire sordid affair is that there
was no consideration of the resolution and there was no voting either by secret ballot
nor by show of hands. Instead there was confusion, chaos, fighting and shouting.
There was a good exhibition of muscle power and lung power..... From what I saw I
can say this. There was no election. No voting on the resolution. Voting had to take
place by secret ballot. No sooner voting process began all hell broke loose. It was a free
for all right with no holds barred. Such a State was not conducive to voting or election
on any sane discussion for that matter. It was impossible to conduct the meeting in
the confusion and chaos that prevailed. The requisitionists saw to it that voting does
not take place. The Madras High Court order was set at naught."

Sri Avadh Behari Rohtagi has said in his report, "Adityan complained that Shukla has
brought in people without accredition cards. Similar was the complaint of Shukla
against Adityan. I cannot say anything on this as there was trouble from the very
beginning and nothing was orderly."

17. From what we have already noticed, it can be said :

(1) Certain members of the Association wanted convening of Special General Meet-ipg
and accordingly gave notice dated 16-5-1990 to resolve that the House had lost
confidence in his Executive Council and to elect a new Executing Council. The notice
suggested that the meeting should be convened at New Delhi within the specified
period or else the requisitionists would hold the said meeting on 16-6-1990 or on any
day thereafter at the National Stadium, New Delhi to consider the above noted item in
the agenda.

(2) The second respondent representing the Association, filed a suit in the Delhi High
Court, being Suit No. 1871 of 1990 in which suit a prayer for injunction was made
against the requisitionists. The Delhi High Court on 6-6-1990 passed an order
restraining the requisitionists from holding any meeting at Delhi but directed that the
Special General Meeting to be held at Madras would be so held and the resolution with
regard to loss of confidence in the Executive Council would also be considered and put
to vote. The Delhi High Court appointed Sri Avadh Behari Rohtagi, a retired Judge of
the said Court as an Observer, who was present at the meeting on 15-6-1990 at
Madras Park Sheraton Hotel.

(2) After the order of the Delhi High Court that is to say on 10-6-1990, C.S. No. 481 of
1990 was filed in this Court by the plaintiffs, one being the Tamil Nadu Olympic
Association represented by Sri Murugan, its General Secretary and another being
Murugan in person, who is the Joint Secretary of the Indian Olympic Association.
Only B.S. Adityan, the President of the Indian Olympic Association and Randhir
Singh, the Secretary General of the Association were impleaded as party defendants.

(4) Between 11-6-1990 and 14-6-1990, more than one petitions for interim injunction
or direction were filed in C.S. No. 481 of 1990 and on 14-6-1990 learned trial Judge
passed the order in the presence of the defendants, who were represented by their
counsel that resolution mentioned in the meeting notice would be put to vote by secret
ballot and that the ballot papers or voting papers which would be issued to the voting
persons, would be signed before issue by the Secretary Genera] of the Association
(Second defendant in the suit) as well as the Observer appointed by the Delhi High
Court and only such ballot papers or voting papers signed by them would be held to
be valid and further that the meeting as scheduld on 15-6-1990 would be presided
over the first defendant Sri Adityan.

(5) On 16-6-1990 according to one version, supporters of Sri Shukla created

disturbances and chaos and according to the other version, Sri Adityan and his men
deliberately withheld information about the order of the Madras High Court and the
first defendant tried to create a pandemonium with the sole purpose of calling off the
meeting and declare himself elected by secret ballot.

(6) According to one version when Sri Adityan found that the supporters of Sri Shukla
were not allowing the voting by secret ballot, he adjourned the meeting. According to
the other version, in spite of the attempt of Sri Adityan and his supporters to somehow
forestall the meeting or to get himself declared as elected by a Sham secret ballot, the
no confidence resolution was adopted and Sri Shukla elected at the said meeting as
the President by show of hands and was authorised to nominate the other office-
bearers.

18. Thus the meeting of the Association either ended in the pandemonium without any
vote of no confidence or election of the meeting adopted the resolution of no confidence
a majority vote by show of hands and authorised Shukla to nominate other members
of the Executive Council. In either case, this Court's direction was not carried out.
Whether it was on account of the supporters of Sri Shukla interfering or on account of
Sri Adityan deliberately withholding the information about the order of this Court and
whether the alleged meeting was adjourned after pandemonium by Adityan or was
held under the Presidentship of Sri Mandher in which Sri Shukla was elected as the
President by show of hands, Sri Shukla admittedly has assumed the office of
President.

19. Our task in the instant case however is limited to first retracing or exploring the
jurisdiction of the Court to pass an order of the nature of the impugned order which
on the one hand is a sort of declaration and on the other an order of mandatory
injunction against the appellant and examining whether the facts of the case
warranted a direction of this nature or not.

20. There are powers of this Court which are spelt out in various provisions of the
Constitution of India and the statutes framed by the Parliament or the competent
Legislature. But this Court's power as the Court of Record has been recognised since
its creation and left unaltered by Art. 215 of the Constitution which states, "Every
High Court shall be a Court of Record and shall have all the powers of such a Court
including the power to punish for contempt of itself."

This provision like Art. 129 of the Constitution of India which similarly states about
the Supreme Court being a Court of Record and powers of such a Court including the
power to punish for contempt itself is generally recognised as the Court's power to
punish for its contempt although it is clear that the power to punish contempt for
itself is Only one of such powers of the High Court as a Court of Record. Framers of
the Code of Civil Procedure, 1908 like the framers of the Constitution of India were
also aware of such special jurisdiction of the court and provided two savings, one in  S.
4 thereof and the other S. 151 thereof to recognise such a special and inherent
jurisdiction of the Court. S. 4 of the Code of Civil Procedure States, "(1) In the absence
of any specific provision to the contrary, nothing in this Code shall be deemed to limit
or otherwise affect any special or local law now in force or any special jurisdiction or
power conferred, or any special form of procedure prescribed, by or under any other
law for the time being in force. (2) In particular and without prejudice to the generality
of the proposition contained in sub-sec. (1), nothing in this Code shall be deemed to
limit or otherwise affect any remedy which a Land holder or landlord may have under
any law for the time being in force for the recovery of rent of agricultural land from the
procedure of such land."

Section 151 of the Code states, "Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the Court."

21. Similar provisions may be found in Ss. 5 and 482 of the Code of Criminal
Procedure, 1973 wherein again it is stated, "S. 5. Nothing contained in this Code shall
in the absence of a specified provision to the contrary affect any special or local law for
the time being in force, or any special jurisdiction or power conferred, or any special
form of procedure prescribed, by any other law for the time being in force.
S. 482. Nothing in this Code shall be deemed to limits or affect the inherent powers of
the High Court to make such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice."

22. We do not think it necessary in the instant case to make any comparative study of
the Civil and Criminal Jurisdiction of the High Court or the powers that this may
exercise in a civil or criminal proceeding because in the instant case, we are concerned
with a civil proceeding pending in this Court in which a certain order was passed and
since that order has been allegedly violated, a application contempt has been filed
followed by a sub-application therein under S. 151 of the Code of Civil Procedure in
which application the impugned order has been passed. We may however state one
contention raised on behalf of the appellant that a contempt proceeding being a
criminal proceeding, the rules that are applied to a criminal proceeding have to be
applied in the contempt case filed on behalf of the plaintiff/respondents and thus in
the sub-application also, the same rules should be applied. Such a contention
however is nothing but a misapprehension and a mistake in understanding the true
nature of a contempt proceeding. A contempt proceeding is a proceeding of special
jurisdiction of a Court of Record and a contemner is not an accused in a criminal case
although some limes he is so described. The Courts have extended the rules of proof
beyond, reasonable doubt and such other rules of procedure in a contempt proceeding
only to emphasise that as Courts of law and Courts of Record, they must act fairly and
give full opportunity to the contemner, who may not] establish his innocence but show
that the allegations levelled against him are not free from doubt. In that sense
contempt proceedings are described as quasi-criminal proceedings. Otherwise they are
proceedings of a summary nature and the Courts evolve their own procedure to
dispose of such proceedings.

23. Apart from the provisions in Art. 215 of the Constitution of India, the Code of Civil
Procedure and the Code of Criminal Procedure saving the inherent jurisdiction of the
Court including its contempt jurisdiction, Art. 225 of the Constitution is another
provision which emphatically saves the inherent jurisdiction of the High Court, it
states, "Subject to the provisions of this Constitution and to the provisions of any law
of the appropriate Legislature made by virtue of powers conferred on that Legislature
by this Constitution, the jurisdiction of, and the law administered in, any existing
High Court, and the respective powers of the Judges thereof in relation to the
administration of justice in the Court, including any power to make rules of Court and
to regulate the sittings of the Court and the members thereof sitting alone or in
Division Courts, shall be the same as immediately before the commencement of this
Constitution."

This not only saves the existing jurisdiction of this Court, but also saves the inherent
jurisdiction. As a result of these provisions, it can be slated without any hesitation
that as the incidence of Court of Record, this Court has got the power to determine the
question as to its own jurisdiction and ii has inherent power to punish for its
contempt summarily.

24. In Govindarajulu v. Imperial Hank of India, AIR 1932 Mad 180, when a learned
single Judge of this Court was confronted with an argument that if an injunction
cannot be passed under the provisions of Order 39, Rule 1 or 2 of the Code of Civil
Procedure, it would not be permissible to seek the power under Section 151 of the
Code in order to justify such an order, accepted the contention that an injunction to
restrain the respondent from executing a certain decree could not be granted in
exercise of the inherent power of the Court (which has been subsequently overruled by
the Supreme Court), but proceeded to consider the jurisdiction of this court as a Court
of Record and said, "..... So far as a Court which is restricted to the terms of the
Code of Civil Procedure it concerned, it has been held by Phillips, J.
in Varadacharyulu v. Narasimhacharyulu AIR 1926 Madras 258 : 92 Ind Cas 615,
which I had occasion to follow in Ayyaperumal Nadar v. Mulhuswami Pillai, AIR 1927
Madras 687 : (102 Ind Cas 700) that if an injunction cannot be passed under the pr
visions of O. 39, Rule 1 or R. 2, it is not permissible to seek the power under Section
151 of the Code in order to justify such an order. It has however been argued now that
a High Court is not resticted to the terms of the Code, but possesses an equitable
power, otherwise derived, to control the proceedings in other Courts. There can be no
doubt that in England a power of this character exists and a discussion of the nature
of it will be found in Ellerman Lines Ltd. v. Read (1928) 2 KD 144. In that case the
question arose as to whether a British subject could be restrained from enforcing a
foreign judgment, in execution, and the court of appeal answered the question in the
affirmative, the principle upon which the matter was decided being clearly explained in
the judgment of Atkin, L.J., namely, that the Court in granting injunctions does not
seek to assume jurisdiction over the foreign Courts or arrogate to itself some
superiority which entitle it to.....dictate to the foreign Court, or that it seeks to criticize
the foreign Court or its procedure :

"The English Court has regard to the presonal altitude of the person who has obtained
the foreign judgment. If the English Court finds that a person subject to its
jurisdiction has committed a breach of co-venent, or has acted in breach of some
fiduciary duty or has in way violated the principles of equity and conscience, and that
it would be inequitable on his part to seek to enforce ajudgment obtained in breach of
such obligation, it will restrain him, not by issuing an edict to the foreign court, but by
sayying that he is in conscience bound not to enforce that judgment."

I do not propose to go so far as the learned Judges who decided Ganga Singh v. Pirthi-
chand Lal, AIR 1922 Patna 34, and who appear to have based their decision as to the
power of a Court (not necessarily a High Court) to issue an injunction in certain
circumstances purely upon English precedents and without any reference to the
terms of the Code of Civil Procedure. But there is authority for the view that the High
Courts, over and above the powers which they enjoy under that Code possess an
equitable jurisdiction derived from the old Supreme Court to issue an injunction in
appropriate cases. This is the basis of the decision in Pariakaruppan Chettiar v.
Ramaswami Chettiar AIR 1928 Madras 497 where Ramesam and Devadoss, JJ. held
that the Chartered High Courts have such a power following Rash Behary Day v.
Bhowani Churn Bhose (1907) ILR 34 Cal 94) and Mungle Chand v. Gopal Ram (1907)
ILR 34 Cal 101. In that former of these two decisions Woodroffa, J. who certainly is a
high authority on question of procedure, gave it as his opinion that a High Court had
and has, independently of the Civil Procedure Code, power to make an order of the
nature sought, and he answered in the negative the question whether there was
anything in the Civil Procedure Code which took away that power. That case was
decided under the old Code, but I do not think ihat there is anything either in S.
151 or any other provision of the new Code which would deprive a High Court of
powers derived independently of it. Another case Singnaravelu Mudali v.
Balasubramania Mudali AIR 1926 Madras 1126, decided by Ramesam, J. has been
cited to me as an authority in favour of the existence of the power, but I observe that
he was able to bring the injunction within the terms of R. 2, O. 39 so that the
remaking observations in the learned Judge's Judgment are, I think merely obiter,
though, as I understand them, he was of opinion that a power exists apart from the
terms of that rule. It appears to me however that Periakaruppan Chettiar v.
Ramaswami Chettiar AIR 1228 Madras 491 is sufficient authority for the general
proposition that this Court is not bound by the terms of the Code in issuing
injunctions in appropriate cases. It appears to me that a case of the present for the
exercise of such a power. We have two proceedings going on at the same time, one the
execution of the decree and the other a proceeding which may eventuate in the decree
being set aside. It is quite clear that these two proceedings, if allowed be to on
independently may lead to incompatible and perhaps unfortunate consequences. I
think accordingly that, in general, there is justification for a Court exercising the
power to restrain the holder of the decree against which such proceedings are pending
from exercising it."

25. In Sukhdev Singh v. Teja Singh, AIR 1954 SC 186 : (1954 Cri LJ 460) a clear
pronouncement of the Supreme Court is available as to the nature of the contempt
jurisdiction of this Court. One of the arguments advanced before the Supreme Court
was that a contempt being punishable under the Contempt of Courts Act, 1952 or an
offence punishable by a law consequently triable under the Criminal Procedure Code.
As Section 5 of Code of Criminal Procedure made it applicable not only to the trial of
offences under the Indian Penal Code but also to the trial of offences against other
laws. The Supreme Court rejected the said contention saying, (Para 3) "We are unable
to agree. In our opinion, the power of a High Court to institute proceedings for
contempt and punish where necessary is a special jurisdiction which is inherent in all
Courts of Record and S. 1(2) of the Code expressly excludes special jurisdiction from
its scope."

Section 5 of the Code of Criminal Procedure, 1973 is similar to Section 1(2) of the
1898 Code. The Surpeme Court then proceeded to examine as to what this "special
jurisdicton" is and noticed that the term "special jurisdiction" is not defined in  the
Criminal Procedure Code but the words "special law" defined in Section 41 of the
Indian Penal Code would mean "a law applicable to a particular subject" and the said
(Para 3) "..... In the absence of any specific definition in the Criminal Procedure Code,
we think that that brings out the ordinary and natural meaning of the words "special
jurisdiction" and covers the present case. Contempt is a special subject and the
jurisdiction is conferred by a special set of laws peculiar to Courts of Records."

Making thereafter a study of the law on the subject, the Supreme Court proceeded to
take notice of the view of the Courts in India and referred to several authorities on the
subject and stated (page 5) "This has long been the view in India. In 1867, Peacock
C.J., laid down the rule quite broadly in these words In 'In re Abdool: (1867) 8 Suth
WR (Cri) 32 at P. 33'.
"There can be no doubt that every Court of Record has the power of summarily
punishing for contempt."

It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin
of the power in the case of the Calcutta, Bombay and Madras High Courts to the
Common Law of England : See 'Surendranath v. Chief Justice and Judges of the High
Court of Bengal', (1982-83) 10 Tnd App 171 at p. 179 (PC) but it is evident from other
decisions of the Judicial Committee that the jurisdiction is broader based than that.
But however that may, be Sir Barnes Peacock made it clear the words "any other law"
in Section 5 of the Criminal Procedure Code do not cover contempt of a kind
punishable summarily by the three chartered High Courts.

Now it is relevant to note in this connection that whatever the origin of the jurisdiction
may be in the case of those three courts, the Charter of ]974, which established the
Supreme Court of Bengal, while providing in clause 4 that the Judges should have the
same jurisdiction has the Court of King's Bench in England, also expressly stated in
clause 21 that the Court is empowered to punish for contempt.

When the Supreme Court of Bengal was abolished, the High Courts Act of 1861
continued those powers to the Chartered High Courts by Sections 9 and 11 and clause
2 of he Letters Patent of the year 1865 continued them as Courts of Record. Despite
this, in 1883 the Privy Council did not trace this particular jurisdiction of the Calcutta
High Court to clause 15 of its charter but to the Common Law of England. But what is
the Common Law? It is simply this: that the jurisdiction to punish for contempt is
something inherent in every court of record.

Sulaiman, J. collected a number of English authorities at pages 631 to 632 of his

judgment In re Abdul Husan Jauhar, AIR 1926 All 623 (SB), and concluded thus:

"These leading cases unmistakably show that the power of the High Courts in England
to deal with the contempt of inferior courts is based not so much on its historical
foundation as on the High Court's inherent jurisdiction."

Apparently, because of [his the Privy Council held in 1853 that the Recorder's court at
Serrc Leona also had jurisdication to punish for contempt, not because that Court had
contempt, not because that court had inherited the jurisdiction of the English courts
because il was a Court of Record. Their Lordship's language was this:

"In this country every Court of Record is the sole and exclusive judge of what amounts
to a contempt of court ..... and unless there exists difference in the constitution of the
Recorder's Court at Sierre Leion the same power must be conceded to be inherent in
that Court..... We are of opinion that it is a Court of Record and that the law must be
considered the same as in the country."

The 1884 edition of Belchamber's Practce of the Civil Courts also says at page 241
that :

"Every superior Court of Record whether in the United Kingdon, or in the colonial
possessions or dependencies of the Crown has 'inherent' power to punish contempts,
without its precincts, as well] as 'in facie curiae' ..... So also 7 Halsbury's Laws of
England (Hailsham edition) page 2.

"The superior courts have an 'inherent jurisdiction' to punish criminal contempt

etc....."

But reverting to the developments in India, the High Court of Allahabad was
established in 1866 under the High Courts Act, 1861 and was continuted a Court of
Record. In 1906 the Privy Council remarked at page 108 of its judgment in -- 'In the
matter of Sashi Bhushan Sarbadhicary (1907) 1LR 29 All 95 : (1907-5 Cri LJ 57) (PC)
"There is also no doubt that the publication of this libel constituted a contempt of
Court which might have been dealt with by the High Court in a summary manner by
fine or imprisonment or both."

After this came the Goverment of India Act, 1915. Section 106 continued to all High
Courts then in existence the same jurisdiction, powers and authority as they had at
the commencement of that Act, and Section 113 empowered the establishment of new
High Courts by Letters Patent with authority to vest in them the same jurisdiction,
powers and authority "as are vested in or may be conferred on any High Court existing
at the commencement of this Act."

The Supreme Court has thereafter referred to various judgments of the Indian Courts
including the Special Bench judgment of the Lahore High Court in Habib, in the
Matter of AIR 1926 Lahore 1 ; (1925-26 Cri LJ 1409) In the Matter of Muslim Outlook,
Lahore AIR 1927 Lahore 610 : (1927-28 Cri LJ 727) Matter of Har Kishan Lal AIR
1937 Lahore 497 : (1937-38 Cri LJ 883), a Special Bench Judgment of the Allahabad
High Court in In re Abdul Hasain Juhar AIR 1926 All 623 and a Full Bench of the
Patna High Court in Emperor v. Murali Manohar Prasad AIR 1929 Patna 72 : (1929-30
Cri LJ 741) and other cases and stated :--

"Finally in -- 'Parashram Detaram v. Emperor AIR 1945 PC 134 at p. 136 the Privy
Council said that, "this summary power of punishing for contempt..... is a power
which a court must of 'necessity' possess".

and added, We have omitted references to the Bombay and Madras decisions after
1883 because the Judicial Committee settled the powers of the three Chartered High
Courts. What we are at pains to show is that, apart from the Chartered High Courts,
practically every other High Court in India has exercised the jurisdiction and where its
authority has been challenged each has held that it is a jurisdiction inherent in a
Court of Record from the very nature of the Court itself. This is important when we
come to construe the later legislation because by this time it was judicially accepted
throughout India, that the jurisdiction was special one inherent in the very nature of
the court".

The Supreme Court has thereafter referred to Art. 215 of the Constitution,
the Contempt of Courts Act, 1926, which was repealed by the Contempt of Courts Act,
1952 and said.
"In any case, so far as contempt of a High Court itself is concerned, as distinct from
one of a subordinate court, the Constitution vests these rights in every High Court, so
no Act of a legislature could take away that jurisdiction and confer it afresh by virtue
of its own authority."

and concluded.

"We hold, therefore, that the Code of Criminal Procedure docs not apply in matters of
contempt triable by the High Court. The High Court can deal with it summarily and
adopt its own procedure. All that is necessary is that the procedure is fair and that the
contemner is made aware of a the charge against him and given a fair and reasonable
opportunity to defend himself."

26. In Manohar Lal v. Seth Hiralal , however, the inherent jurisdiction of the Court to
make orders ex debito justitiae was recognised by the Supreme Court in these words,
(at p. 537 of AIR).

"It is true that the High Courts constituted under charters and exercising ordinary
original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain
parties in a suit before them from proceeding with a suit in another court, but that is
because the chartered High Courts claim to have inherited this jurisdiction from the
Supreme Courts of which they were successors. This jurisdiction could be saved by S.
9 of the Charter Act (24 and 25 Vict. C. 104) of 1861 and in the Code of Civil
Procedure. 1908, it is so expressly provided in S. 4. But the power of the Civil Courts
other than Chartered High Courts must be found within S. 94 and O. 39, Rr. 1 and 2
of the Civil Procedure Code.

The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules
for guidance in rcpect of all situations nor does it seek to provide rules for decision of
all conceivable cases which may arise. The civil courts are authorised to pass such
orders as may be necessary for the ends of justice, or to prevent abuse of the process
of court, but where an express provision is made to meet a particular situation the
Code must be observed, and departure therefrom is not permissible. As observed in
(1935) 62 Ind App 80 : AIR 1935 PC 85:

"It is impossible to hold that in a matter which is governed by an Act, which in some
limited respects gives the Court a statutory discretion, there can be implied in Court,
outside the limits of the Act a general discretion to dispense with the provisions of the
Act."

Inherent jurisdiction of the court to make orders ex debilo justitiae is undoubtedly

affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to
nullify the provisions of the Code. Where the Code deals expressly with a particular
matter, the provision should normally be regarded as exhaustive."

27. Thus this court's special jurisdiction as well-as inherent jurisdiction to make
orders ex debito justitiae on the one hand and to punish for its contempt on the other,
cannot be doubted and if a jurisdiction exists in a court, the court always has the
right and duty to exercise that power as effectively as possible as it is always a
inherent jurisdiction of the court to make its power effective even though there is no
specific provision of law to cover that particular power.

28. Article 215 of the Constitution has made no distinction between a civil contempt
or a criminal contempt and covers the whole field of litigation, civil or criminal and any
thing that tends to curtial or impair the freedom of the limbs of the judicial
proceedings. The courts in their attempt to identify the nature of contempt have
noticed however three different sorts of contempt viz., (1) scandalising the court itself.
(2) abusing parties who are concerned in causes before it and (3) prejudicing mankind
against persons before the case is heard. We need not however wander into this
areana as the Parliament has enacted the Contempt of Courts Act, 1971 and defined
"contempt of Court" to mean civil contempt or criminal contempt, 'civil contempt" to
mean wilful disobedence to any judgment, decree, direction order, writ or other
process of a court or wilful breach of an undertaking given to a court" and, .....
"Criminal contempt" to mean the publication, whether by words, spoken or written or
by single or by visible representations, or otherwise of any matter or the doing of any
other act whatsoever which scandalises or tends to scandalise or lowers or tends to
lowes the authority of any Court or prejudice or interferes or tends to interfere with
the due course of any Judicial proceedings or interferes or tends to interfere with or
obstructs or tends to obstruct the administration of justice in any other manner. The
present appeal is concerned with the civil contempt only although it is conceded before
us that there are several allegations in the contempt application, which make out a
case of criminal contempt. Civil contempt is thus essentially concerned with the
enforcement of judgment, decree, direction, order, writ or other process of a Court.
The administration of justice can only be effective if it has the means to enforce the
court's judgment and orders. That is why civil contempts are also called contempt in
procedure. Courts also do not easily resort to the contempt procedure. Contempt is a
blunt weapon. It is used sparingly and only in cases where when it is found difficult to
generate obediene and respect for the court or when a court attempts to secure
obedience to its. orders, directions, etc., or to elicit respect to it. It rarely does any
such thing to grandiose its Officers on the man power including the judges. It does so,
first to undo the wrong done and secondly to ensure that the administration of justice
is not brought into a scorn or ridicule because there is no interest of the court, which
is not public interest. If violations of the Courts' orders will be ignored, there will be
nothing left save for each person to take the law into his own hands. Loss of respect
for the Courts will ultimately result in the destruction of the rule of law and ultimately
the society. Still courts before seeking enforcement of their order, want to be satisfied
first to whom the order, writ or direction was addressed, whether to whom the order
was addressed knew about the court's order or not and whether such a person had
willfully disobyed the order of the court or not. ,

29. One of the contentions before us has been that the order/direction/injunction of a
court in a Civil Proceeding is directed only to the party to a proceeding and its
implementation therefore is required by such a party alone. A stranger or a third party
may be involved in contempt only if he is found aiding or abetting or otherwise
obstructing the enforcement of the Court's order. There is and there can be no dispute
to the rule that a person cannot be held guilty of contempt in infringing an order of the
Court he knows not.
30. Order 39 Rules 1 and 2 of the Code of Civil Procedure provide for temporary
injunction in any suit on proof that any property in dispute is in danger of being
wasted, damaged or aliented by any party to the suit or wrongfully sold in execution of
a decree or that the defendant threatens or intends to remove or dispose of his
property with a view of defrauding his creditors or threatens to dispossess the plaintiff
or otherwise cause injury to the plaintiff in relation to any property in dispute in the
suit and in any suit for restraining the defendant from committing a breach of
contract or other injury of any kind, to restrain the defendant from committing the
breach of contract or injury complained of or any breach of contract or injury of a like
kind arising out of the same contract or related to the same property or right.

31. We have already noticed that a Court's power to grant injunction is not confined to
Order 39, Rules 1 and 2 of the Code of Civil Procedure. In Appropriate cases, the
Court can grant injunction exercising its inherent power. Yet, a departure from the
rule that any order or direction in the nature of injunction should be directed to the
parties to the suit or litigation before it cannot easily be allowed. That is why the first
thing to know in such a case is who the contemner is, a party to the proceeding or a
stranger. In addition to holding those who have been expressly enjoined by an
injunction to have committed a contempt if they disobey the Older, a person who is
not a party to the action, who knowing of an injunction, order or direction, aids and
abets the defendant in breaking it is also a contemner is a rule which has since
received wide recognition by almost every court. The rule stated in Seaward v.
Paterson (1897-1 Ch 545) has been so often repeated that it has almost become a
common knowledge that a person, who is not enjoined by the Court's order is not
bound by the injunction order or direction. That was a case in which an injunction
had been granted restraining Paterson, his agents and servants inter alia from doing
or suffering to be done which may interfere with the full and quiet enjoyment of the
plaintiff or his under tenants of the premises adjoining or neighbouring to the first,
second and third floors of certain premises. In contravention of this injunction,
Paterson allowed boxing matches to be held on his premises. The motion to commit
was moved against him and other persons against whom it was alleged, had aided and
abetted the breach. The Court of Appeal in that case held.

"There is no injunction against him -- he is no more bound by the injunction granted

against Paterson than any other member of the public. He is bound like other
members of the public, not to interfere with, and not to obstruct, the course of justice;
and the case, if any, made against him must be this not that he has technically
infringed the injunction, which was not granted against him in any sense of the word,
but that he has been aiding and abetting others in setting the court at defiance, and
deliberately treating the order of the court as unworthy of notice. If he has so
conducted himself, it is perfectly idle to say that there is no jurisdiction to (punish)
him for contempt as distinguished from the breach of the injunction, which has a
technical meaning."

In this case the argument that Murray had no notice of the injunction since he was
not served with a copy of the order until after the boxing matches had been held, was
rejected because the Court was satisfied that he did in fact know of the terms since he
had been present during a great part of the trial and had been informed by Paterson of
the result immediately afterwards. His other argument that he was a mere spectator
and could not therefore be considered as an aider or abetter was also rejected because
it was shown that far from being a mere spectator, he was in fact acting as a promoter.
The Court however accepted in that case that being a mere spectator was not enough
per se to prove that he was aiding and abetting the breach.

32. In Thorne RDC v. Bunting (No. 2) (1972) 3 All ER 1084, a Bench of the Court of
Appeal considered a case of breach of undertaking and liability of third parties for
contempt. Observing on facts, Russell LJ, held.

"The mother and son had submitted to orders about their registrations limited to the
specific and small portions of the relevant land that belonged to the council. The
undertaking which the father submitted to (although it would seem apparently that it
went further than could have been obtained if the matter had been fully fought out)
extended to much more land; that is to say, to other land not the property of the
council. The result of the orders against the mother and son and the undertaking by
the father has been, of course to clear from the registration the lands in the whole area
in fact belonging to the council. The father has done his best to fulfil his undertaking
in respect of the rest of the land by saying "so far as I made it provisional common
land by the original application No. 807, then in respect of this land 1 withdraw it, and
in so far as 1 was party to the applications in respect of rights 2279 and 2281. I am
prepared to write a letter, take whatever step you require on my part, to assist the de-
registration in respect of the rights provisionally registered in relation to this other
land'. But the registration authority say. 'Well, in respect of this other land, we cannot
de-register from these rights registered provisionally under 2279 and 2281 because
you, the father, are the only person who created or caused their original registration.
We are not prepared to act under the discretion given to us by a particular sub-
section. We are not prepared to delete the registration of these rights in respect of this
wider area of land; and consequently we are not prepared to take the steps which will
make this wider area of land cease to be common land. So far as we are concerned,
therefore, it will have to wait until the Commons Commissioners get round to deciding
how much (if any) of the whole of this area is in fact common land and I, suppose,
what common rights there are attached to any part of it," and then said the crucial
point, "It is said here is the father; he admittedly has done his best to comply with his
undertaking. Here are the mother and son who are under no obligation under any
order of any court to take any step in relation to the withdrawal of registration Nos.
2279 and 2281 in connection with land in the total area other than land belonging to
the council."

Russell I...!., said.

"I am hound to say, at a very early stage in the hearing of this appeal, it came to me as
an astonishing proposition that in a case where no breach of the father's injunction
could be asserted and no relevant order was in existence against the mother and son,
anybody could say that the mother and the son, by not doing that which they were
under no possible obligation to do, were in contempt of court."

In this judgment, Seaward v. Paterson's case (1897 - 1 Ch 545) (supra) on aiding and
abetting the breach of injunction and some other cases were referred to by the learned
judge but said, "We have had our attention drawn to a phrase, six lines in an old note
under the heading 'Rules of Court' in Butler's Case (1696) 2 Salk 596. We have been
referred to some passages in the judgments delivered for the benefit of the House of
Lords in Miller v. Knox (1838) 4 Bing NC 574, relating to people aiding the Sheriff's
execution. We have been referred to a case of aiding and abetting breaches of an
injunction, Seaward v. Pater-son (1897) 1 Ch 545 to another one of aiding and
abetting, Phonographic Performance Ltd, v. Amusement Caterers (Peckam) Ltd. (1963-
3 AH ER 493); and to another one in connection with aiding and abetting, or the
situation or directors, Filiot v. Kinger (1967) 3 All ER 141. I cannot find anything in
these cases which justifies the conclusion that, in a case like this, there can be any
conceivable question of charging either the mother or the son with contempt of court."

Therein learned Judge made a further relevant observation.

"Counsel for the council has fought doughtily, wielding general propositions based on
six lines in the Salkeld report (In Butler's case 1696-2 Salk 596) that if anybody docs
anything which tends to deprive a plaintiff of the fruits of an order, they are in
contempt of court. All I can say is, I cannot see it at all. It will be observed, as 1
ventured to observe in the course of the hearing, that what arc the fruits of the order
depends on the order. They may be desert apples or they may he crab apples; and
here the only undertaking the council got out of the father was ihat he would take
some steps which by themselves, if other people did not do something voluntarily to
aid him, would not achieve the ultimate aim that the council were looking for; that is
to say, to get all this land totally deregistered. But the trunk of the fruit tree was a
weak one, although it seeks to have been rather stranger than in law the council were
entitled to obtain against the father."

33. In the case of Northern Counties Securities v. Jackson & Steeple (1974) 2 All ER
625, a judgment of the Chancery Division, Walt on J. delivered adjudgment in a case
in which a certain undertaking to use best endeavours to obtain quotation for and
permission to deal in shares and issue the same on bahalf of the company, was an
issue, but shareholders were charged for contempt. Learned Judge noticed the
arguments.

"Counsel for the plaintiffs argued that, in effect, there are two separate sets of persons
in whom authority to activate the company itself resides. Quoting the well-known
passages from Lord Haldane in Lennard's Carrying Co Ltd. v. Asiatic Petroleum Co
Ltd. (1914-15) All ER Rep 280 he submitted that the company as such was only a
juristic figment of the imagination, lacking both a body to be kicked and a soul to be
damned. From this it followed that there must be some one or more human persons
who did, as a matter of fact, act on behalf of the company, and whose acts therefore
must, for all practical purposes, be the acts of the company itself. The first of such
bodies was clearly the body of the directors, to whom under must forms of articles (see
art 80 of Table A, or art 86 of the defendant company's articles which is in similar
form) the management of the business of the company is expressly delegated.
Therefore, their acts are the company's acts; and if they do not, in the present
instance, cause the company to company with the undertakings given by it to the
court, they arc themselves liable for contempt of court. And this, he says, is well
recognised : See RSC Ord 45, R. 5(1), where under disobedience by a corporation to an
injunction may result directly in the issue of a writ of sequestration against any
director thereof. It is of course clear that for this purpose there is no distinction
between an undertaking and an injunction (see the Supreme Court Practice 1973) Vol.
1 P. 685.

This is, indeed, all well established law, with which counsel for the directors did not
quarrel and indeed I think his first proposition asserted. But, continues counsel for
the plaintiffs, this is only half of the story. There are some matters in relation to which
the directors are not competent to act on behalf of the company, the relevant authority
being 'the company in general meeting', that is to say, a meeting of the members. Thus
in respect of all matters within the competence -- at any rate those within the
exclusive competence of a meeting of the members, the acts of the members are the
acts of the company, in precisely the same way as the acts of the directors are the acts
of the company. Frgo, for any shareholder to vote against a resolution to issue the
shares here in question to the plaintiffs would be a contempt of court, as it would be a
step taken by him knowingly which would prevent the company from fulfilling its
undertaking to the court. Counsel for the plaintiffs admitted that he could find to
authority which directly assisted his argument, but equally confidently asserted that
there was no authority which precluded it.

Counsel for the directors indicted the argument of counsel for the plaintiffs as being
based on a nominalistic falacy. His precise proposition was formulated as follows:

"Whilst directors have special responsibilities as executive agents of the company to

ensure that the company does not commit a contempt of court, a shareholder when
the position has been put before them generally who chooses to vote against such
approval will not himself be in contempt of Court.

Putting this into less formal language, what counsel for the directors submitted was
that although it is perfectly true that the act of the members in passing certain special
type of resolutions binds the company, their acts are not the acts of the company.
There would, he submitted, be no real doubt about this were it not for the use of the
curious expression 'the company in general meeting' Which, in a sense, drags in the
name of the company unnecessarily. What that premise really means, he submitted, is
the member (or corporators) of the company assembled in a general meeting', and that
if the phrase is written out in fall in this manner it becomes quite clear that the
decisions taken as such a meeting, and the resolutions passed threat are decisions
taken by, and resolution passed by the members of the company, and not the
company itself. They are therefore in the postion of strangers to the order and not in
contempt by their act in voting as they please, whatever its effect may be."

Having so put the contentions, the learned Judge said.

"In my judgment, these submissions of counsel for the directors are correct. I think
that in a nut shell the distinction is this. When a director votes as a director for or
against any particular resolution in a directors' meeting, he is voting as a person
under a fiduciary duty to the company for the proposition that the company should
take a certain course of action. When a shareholder is voting for or against a
particular resolution he is voting as a person owing no fiduciary duty to the company
who is exercising his own right of properly to vote as he thinks fit. The fact that the
result of the voting at the meeting (or a subsequent poll) will bind the company cannot
affect the position that in voting he is voting simply as an exercise of his own property
rights.

Perhaps another (and simpler) way of putting the matter is that a director is an agent,
who casts his vote to decide in what manner his principal shall act through the
collective agency of the board of directors; a shareholder who casts his votes in general
meeting is not casting it as an agent of the company in any shape or form. His act,
therefore, in voting as he pleases cannot in any way be regarded as an act of the
company".

Having so stated the law, the learned Judge treated the shareholders, who acted in the
face of the given undertaking, as third parties, unless found aiding and abetting could
not be charged for contempt. In this case, the learned Judge accepted the proposition
as a general statement of law that where a court makes an order directing a party to
an action to observe or do some act, this does not impose an obligation on someone
who is not a party to the action to do anything, but observed, "If applied to the
directors of the company subject to such an order of the court it is misleading. The
directors, although not in express terms parties to the action, do come under an
obligation to procure that the company acts in conformity with the order of the court,
for the simple reason that if they did not there would never by any effective remedy of
this nature against a company..... I have no doubt that where conditional contract is
entered into-conditional, for example, on the shareholders approving an increase in
the capital of the company there is, in general, no duty on the company to procure the
fulfilment of the condition....."

There is yet another observation in the judgment, "It would, of course, be otherwise if
one could envisage any circumstances in which an order was made by the courts on a
company to do something, for example to increase its capital (as distinct from using its
best endeavours to increase its capital), which must of necessity involve the
shareholders voting in a particular manner. But I at any rate cannot envisage any
ordinary situation (as distinct from for example, situation where all the shareholders
were before the court and bound by the order) where such an order would ever be
made."

In other words, Walton, J treated the undertaking on behalf of the company to be one
depending upon the precise condition and the precise construction of the nature of the
order and undertaking and the conditions of contract under which the directors of the
company functioned, but found it rather difficult to anticipate a situation in which any
order could be passed in the absence of the shareholders as party to the proceeding to
bind them.

34. In Z Ltd. v. A (1982) 1 All ER 556 Lord Denning read 3 judgment on behalf of the
Court of Appeal adopting a device as parties in the case were cancelled by the letters of
the alphabet, and stated the guidelines on the issue of assets under a special direction
called mareva injunction effecting bank accounts and other assets and observed,
"Once granted, a Mareva injunction has immediate offect on every asset of the
defendant covered by the injunction, because it is a method of attachment, which
operates inrem in the same manner as the arrest of a ship and because any authority
which third parties may have to deal with the asset in accordance with the
instructions of the defendant is revoked once such third parties have notice of the
injunction."

35. The case of Attorney General v. Newspaper Publishing PLC, (1987) 3 WLR 942 is a
judgment of the Court of Appeal of England which states the legal position and
development of law with regard to violation of an order of injunction and contempt,
Three judges constituting the bench Sir John Donaldson, M. R. Lolyd and Balcombe L.
JJ. delivered their separate judgments and answered questions which appear to be
relevant for this case. They recoreded opinion in an appeal by the Attorney-General
against the decision of Sir Nicolas Browne-Wilkinson V. C., on a point of law, "Whether
a publication made in the knowledge of an outstanding injunction against another
party, and which if made by that other party would be in breach thereof, constitutes a
criminal contempt of court upon the fooling that it assaults or interferes with the
process of justice in relation to the said injunction."

In the first judgment, it is said, "I now return to the judgment of Sir Nicolars Browne-
Wilkinson V.C. "(a) In no case (apart from Smith-Barry v. Dawson, the Irsh case) has a
third party, C., been held to be in contempt of an order restraining a named person, B
from doing an act unless C has been privy or party to the doing of an act which is a
breach of precise terms of the order."

If Smith-Barry v. Dawason, (1891) 27 LR Ir 558 is accurately reported, there was some

confusion between the species of contempt which consists of disobeying, or assisting
in the disobedience of an order of the court and that which consists of interfering with
the due administration of justice, and this may have stemmed from the fact that no
argument was addressed on behalf of the alleged contemnors. Mr. Smith Barry had
been declared by a final judgment, to which the alleged contemnors were not parties,
to be entitled to possession and to quiet enjoyment of his patent rights to hold a
market in the Fair Green. The alleged contemnors had held a rival market in the Fair
Green with knowledge of that decision and of the fact that an injunction had been
granted against the defendant in the action prohibiting him from holding such a
market. Hedges E. Chatertn said, at pp. 559-560 that the alleged contemnors were;

"In my opinion, in just the same default as the original defendants would have been if
they had done similar acts. (But) the cases cited clearly establish the right to have
these attachments issued, and nothing can be more in point than the Killiney
Foreshore case (unreported). But even without any of these authorities, ordinary
commonsense would show that persons cannot be allowed to set at definance the
order of the court because they do not happen to be named in the injunction."

If in an action between A and B for the possession of a dwelling house, B is ordered to

give up possession and to refrain from retaking possession, As remedy, if someone, C,
subsequently tries to dispossess him, is an action against C, not proceedings for
contempt of court in disobeying an order to which C was never a party and in the
breach of which he was not assisting. So long as the full importance of Sir Nicolas
Browne-Wilkins on V.C.'s words "contempt of an order" are appreciated, I consider
that this represents the law. The Attorney-General does not allege that the defendants
are up contempt of the orders made in the Guardian and Observer actions or assisted
in doing an act which is a "breach of the precise terms of the order," i.e. terms which
restrained conduct by the Guardian and the Observer, their servants, agents, etc. He
claims that, given the fact that these orders had been made with a view to preserving
the subject matter of the dispute, destruction of that subject matter is an interference
with the due administration of justice and so a contempt of court.

"(b) Under English law an injunction can only properly restrain a party to the
proceedings from doing an act, although it may restrain him from doing the act 'by
himself, his servant or agent.'"

This appears to be a wholly correct statement of the law (Marengo v. Daily Sketch and
Sunday Graphic Ltd., (1948) 1 All ER 406 hut it is capable of being misleading. The
form of order now usually adopted which enjoins the defendant "by himself, his
servant or agent" does not enjoin the servants or agents at all. All that the additional
words do is to serve as a warning to such servants and agents that they should not
assist in the doing of the prohibited act. If they do so, they will not have disobeyed the
order, but they will have interfered with the due administration of justice and may be
liable to be proceeded against on that account.

That this is the position is made even clearer by the two motions Lord Wellesley v. Earl
of Mornington (1848) 11 Beav. 180 and Lord Wellesaley v. Earl of Mornington (No. 2)
(1848) 11 Beav, 181. There the injunction Order omitted any reference to servants or
agents. Lord Langdale M. R. dismissed the first motion to commit Mr. Batley, the
Earl's land agent, who had cut down some trees which the Earl had been forbidden to
cut. He did so because the motion was based upon an allegation that Mr. Batley had
acted in breach of the order. As Lord Langdale M. R. pointed out, the order was not
addressed to Mr. Batley and he was not enjoined thereby. However, the second motion
accused Mr. Batley not of breaching the order, but of knowingly assisting in a breach
of the order and thereby obstructing the process of the court. As Lord Langdale M. R.
put it at p. 183:

"If the matter had been pressed, I should have found it my duty to commit Mr. Bailey
for his contempt in intermeddling with these matters....."

(c) As a result of (a) and (b) above, there is no English case in which a third party, C,
has been held in contempt for doing any act which does not constitute a breach by the
defendant enjoined, B, of the precise terms of the Orders."

I am not sure whether this adds anything to (a) and (b). Whilst it certainly records that
no one has been able to find a reported decision involving a finding of contempt by C,
where the act complained of was intimately related to an order against B but did not
involve assisting in doing that precise act, I am not sure of its significance, save that it
underlines the fact that this is a novel situation. There is at least one case in the
books which, if C had acted differently, would have raised the point. This is Galaxia
Maritime S.A. v. Mineral import -- export (1982) 1 W.L.R. 539, where A obtained a
Mareva injunction against B ordering B not to remove his assets from the jurisdiction
including, in particular, cargo loaded on C's ship. C. for his own purposes --he wished
to have the use of his ship and to allow the crew to get home for Christmas - -and
regardless of the wishes of B wished to remove his ship from the jurisdiction with or
without the cargo. Capplied successfully for the injunction to be discharged and
seems, to have assumed, as the court also assumed, that absent permission from the
Court or the discharge of the injunction, the ship could not sail. I think that C was
right, but had the ship sailed with the cargo, it cartainly could not have been said that
he was in breach of the precise terms of the order which prohibited B exporting the
cargo and still less that B would have been in breach.

"(d) The plaintiff in the proceedings, A, an apply for the committal of C even though the
act of C is a criminal contempt,"

This is an historical anomaly arising out of the classification of contempts as civil and
criminal. If instead, they are classified as contempts involving (a) disobedience or
assisting in the disobedience of orders and (b) other conduct interfering with the
administration of Justice, there is no problem. A can apply in category (a) and the
Attorney-General can apply in category (b). In any event it appears to cast no light
upon what has to be decided in this appeal.

"(e) The principle underlying the law that C is in criminal contempt if he is party to a
breach of the Order is that the court will not allow its order to be knowingly flouted,
thwarted or frustrated by any person even though he be a stranger to the action."

This is quite correct bul, I think, nihil ad rein. The three newspapers were not parties
to breaches of the actual orders in the Guardian and Observer actions which
prohibited publication by those newspapers. In publishing as they did, they were
intending to serve their own interests or their view of the public interest and certainly
not the interests of the Guardian and Observer.

Based on these propositions of law, Sir Nicolas Browne-Wilkinson V.C. said that it
seemed to him that the Attorney-General was seeking to widen the application of the
law of criminal contempt, albeit in accordance with established principle. This I am
unable to accept. "I he law of contempt is based upon the broadest of principles,
namely, that the courts cannot and will not permit interference with the due
administration of justice. Its application is universal. The fact that it is applied in
novel circumstances, for example to the punishment of a witness after he had given
evidence (Attorney-General v. Butterworth, (1963) 1 QB 696), is not a case of widening
its application. It is merely a new example of its application. In that case, as here, the
trial judge, Nocatta, J., relied upon the fact that there was no such case in the books,
but the court held that that was a distinction of fact, not principle; per Donovan, L..I.
at pp. 724-725.

Next, and this is really the final stage in his reasoning a part from the practical
considerations with which I must deal hereafter, Sir Nocolas Browne-Wilkinson V. C.,
said, anti, p. 955 F-F;

"the question which I have to decide whether, due to the chance that there is in
existence an order of the court preventing the Guardian and the Observer from
publishing, the appropriate sanction is contempt of court."
At the risk of appearing to be a carping critic and I repeat my tribute to the clarity of
his Judgment -- I think that the Vice-Chancellore misdirected himself in thus
formulating the question. Contempt of court is not a sanction. Contempt of court is
lawful conduct, the sanction for which is imprisonment, attachment, a fine or an order
to pay costs. So the question should at least be rephrased to read:

"Whether, due to the chance that there is in existence an order of the court preventing
the Guardian and the Observer from publishing, the conduct of 'The Independent'.
'The London Evening Standard' and 'The London Daily News' was unlawful as
constituting an interference with the due administration of justice."

But even this is not correct. "Chance" is not the right word. The existence of the
restraining orders against the Guardian and the Observer was a fact. It was only a
chance in the sense of being what I believe is known across the Atlantic as a
"happenstance" - a past circumstance which was not created by any of the principal
actors. So I would substitute "fact", for "chance", whilst at the same time appreciating
that I have to consider whether it is a very material fact, one which made any real
difference.

This brings me to the very interesting and, as 1 think, crucial decision is In re X (A

Minor) (Wardship : Injunction) (1984) I WLR 1422. There Balcombe, J. made an order
prohibiting publication of information about the word by the "News of the World",
which was a party, and any other person who should have notice of the order. It was
effective in fact and I am wholly satisfied that it was also effective in law. What is
interesting is why it was effective in law.

As Sir Nicols as Browne-Wilkinson V.C. pointed out, English civil courts not in per-
sonam. They adjudicate disputes between the parties to an action and make orders
against those parties only. This is true even in proceedings under R.S.C. Ord. 113,
which permits proceedings against "Persons unknown." They become parties. What is
not permissible is to make an order against a stranger to the action. In Ivason v.
Harris, (1802) 7 Vas. Jum. 251 256, Lord Eldon L.C. said:

"I have no conception, that it is competent to this court to hold a man bound by an
injunction, who is not a party in the cause for the purpose of the cause."

Yet that is what Balcombe, J. purported to do. To say that the jurisdiction of the court
in wardship involves a peculier parental or administrative responsibility to which the
disposal of controverted questions is only incidental is no explanation. This only
means that this jurisdiction is unusual in the extent to which it involves extended
judicial supervision throughout the wardship, which may last for years.

I sympathise with the position in which Balcombed, J. found himself. The proper
discharge of the wardship by the court in the exercise of the ancient duties of parents
patrieae made it essential that there should be no publication and he had to find a
way of achieving this result. But had any newspaper, other than the "News of the
world", published details of the ward and had the Attorney-General sought to commit
it or its editor for contempt consisting of disobediance of the order, the motion would
have been dismissed, it would have been a reply of Lord Wellesley v. Earl of
Mornington, (1848) 11 Boav. 180, which would have been indistinguishable. The fact
that the order was addressed to the alleged contemnor would rightly have been
disregarded as done without jurisdiction. But if the Attorney-General had moved
instead upon the ground that the publication interfered with the administration of
justice (Lord Wellesley v. Earl of Mornington (No. 2), (1848) 11 Beav. 181), he would
have succeeded and the fact that publication had taken place notwithstanding the
warning conveyed by the form of the order would have been an aggravating
circumstance."

36. Lloyd, L.J., in his separate judgment agreed with the proposition that in no case
other than the Irish case of Smith-Barry v. Dawson, (1891) 27 LR Ir 558, has as third
party, not subject to the Order of the court, been held liable for contempt for doing an
act which is prohibited except by aiding the person enjoined, and the proposition that
while it is open to the court to extend the law, nevertheless the court should be wary
of doing so, since the liberty of the subject is involved, but made his independent
comments upon whether to apply the law of contempt to a person who is not a party
to the order in question would not only widen the application of the law, but also
infringe a fundamental principle that the courts do not make orders against all the
world and said that the court acts in personam. Accordingly its orders only operate in
personam, never in rem and to hold that a person who is not party to the order and
not party to the breach of the order as aider and abetter may nevertheless be liable for
contempt on the ground that he has contravened or frustrated the spirit of the order
will not be proper. Referring to Sweaward v. Paterson (1897-1 Ch 545) (supra) and
other cases, learned Judge held, ..........

"Although there are dicta in Sweaward v. Paterson, (1897) 1 Ch. 545 and Lord
Wellesley v. Earl of Mornington, 11 Beav. 180 which may be said to support a wider
principle, I regard those cases and having decided, and decided only that a person
may be liable in contempt if, with knowledge of the order, the aids and abets a breach
of the order by the person enjoined. The same is true of Z Ltd. v. A-Z and AA-LL,
(1982) QB 558. It was held in that case that the bank would be liable for contempt if,
with knowledge of the Mareva injunction, it enabled its customer to act in breach of
the terms of the injunction, even though the injunction had not been served on the
customer. The customer could not, of course, be liable in contempt himself until
notice of the injunction had been properly served. But he could breach the injunction
as soon as it was granted, and the bank could therefore be liable in contempt for
aiding and abetting that breach....I would only add, before leaving the cases, that it
would be an improvement of this branch of the law if aiding and abetting a breach of a
court order were re-classified as a civil contempt rather than a criminal contempt. The
best course would no doubt be to abolish what remains of the distinction altogether,
in accordance with the recommendation of the Phillimore Committee, Report of the
Committee on Contempt of Court (Crand. 5794). But if the distinction is to remain, it
does not make sense that a stranger to the order, who aids and abets a breach, should
be criminally liable while the person to whom the order is directed and who himself
commits a breach should only he liable for civil contempt. That is the sort of nonsense
which does no credit to the law, as was pointed out forcibly enough by Lord Atkinson
nearly 75 years ago in Scott, (1913) AC4I7".
Coming to the third step to apply the law of contempt to a person who is not a party to
the order in question he said, "It is when he comes to the third step in his reasoning
that I begin with great respect, to part company from Sir Nicolas Browne-Wilkinson
V.C.I accpet, of course, that it is a fundamental Principle with certain very limited
exception, of which the best established is wardship, that our courts act in personam.
As Lord Eldon L.C. said in Iveson v. Harris, (1802) 7 Ves. Jun. 251, 256:

"I have no conception, that it is competent to this court to hold a man bound by an
injunction, who is not a party in the cause for the purpose of the cause".

That dictum was repeated with approval by Lord Uthwatt in Marengo v. Daily Sketch
and Sunday Graphic Ltd., (1948) I All ER 406, 407; see also, Brydges v. Brydges and
Wood (1909) P 187, 191.

But the question here is not whether a third party is bound by the injunction, but
whether he can be liable for contempt even though he is not bound by the injunction.
He cannot be liable in contempt for breach of an order to which he is not a party; nor,
on the facts of the present case, could the respondents be liable for aiding and
abetting a breach. But it does not follow that they may not be liable for interfering with
the course of justice. Thus, to take a wholly improbable example in order to illustrate
the point; suppose a party to certain proceedings assaults or abuses the judge;
suppose the judge make an order against him in the proceedings prohibiting him from
repeating his abusive conduct. If a stranger comes to court and abuses the judge in
like manner, it will surely not be a defence to a charge of contempt that he was not a
party to the order. His conduct amounts to a contempt of court independently of any
order made in the proceedings. Nor would holding such a man liable for contempt
create any undesirable uncertainty or injustice. He is assumed to know that abusing
the judge is a contempt of court. Ignorance of the law will afford him no more excuse
in this than in any other branch of the criminal law.

It may be said that abusing the judge is an obvious contempt, whereas interfering with
the course of justice, in particular proceedings is much less precise. This is true,
Moreover I would accept that not all acts which are calculated to interfere with the
course of justice will necessarily ground a charge of contempt. The act must be
sufficiently serious and sufficiently closely connected with the particular proceedings.
But in the present case the conduct relied on by the Attorney-General is not marginal.
It is not a mere prejudging of the issue to be decided in the particular proceedings. It
is not a mere usurpation of the court's function. It is the destruction, in whole or in
part, of the subject matter of the action itself. The central issue in the Guardian action
is whether "The Guardian" should be restrained from publishing confidential
information attributable to Mr. Wright. Once the information has been published by
another newspaper, the confidentiality evaporates. The point of the action is gone. It is
difficult to imagine a more obvious and more serious interference with the course of
justice than to destroy the thing in dispute".

37. Balcombe L.J., in his judgment has also accepted that a third party may be
charged for criminal contempt but not civil contempt and stated his opinion in these
words, "Although I hope I have made it clear in the earlier part of this judgment that
the reason why I consider that the publications of the respondents are capable of
constituting criminal contempt of court is because they interfered with the
administration of justice and not because they disobeyed orders made in the
Guardian/Observer actions which were not addressed to them, I am conscious that
this conclusion is reached by a sophisticated argument which may not be readily
appearent to the layman. It seems to me that it would be preferable, in an appropriate
case, where it is apparent that the subject matter of an action (e.g. confidential
information or a secret process) could be destroyed by its publication by any person,
whether a party to the action or not, for the court to make its initial protective order in
terms which make it clear to third parties that they, too, must not destroy that subject
matter. The question is whether the court has power, in an appropriate case, directly
to order third parties not to destroy the subject matter of the action. The general
principal was stated by farewell LJ. in Brydges v. Brydges and Wood (1909) P. 187,
191:

"But the court has no jurisdiction, inherent or otherwise, over any person other than
those properly brought before it as parties or as persons treated as if they were parties
under statutory jurisdiction (e.g., person served with notice of an administration
decree or in the same interest with a defendant appointed to represent them), or
persons coming in and submitting to the jurisdiction of their own free will, to the
extent to which they so submit (e.g., creditors of a bankrupt executor, who has carried
on business under a power in the will, coming in to claim against the testator's estate
in order to obtain subrogation to the executor's right of indemnity). But the courts
have no jurisdiction to make orders against persons not so before them merely
because an order made, or to be made, any or will be ineffectual without it. Even in
the case of an injunction Lord Eldon says in Inveson v. Harris, (1802) 7 Vcs. Jun. 251,
256: I have no conception, that it is competent to this court to hold a man bound by
an injunction, who is not a party in the cause for f he purpose of the cause. The old
practice was that he must be brought into court, so as according to the ancient laws
and usages of the country to be made a subject matter of the writ".

See also Ranson v. Platt, (1911) 2 KB 291 and Marango v. Daily Sketch and Sunday
Graphic Ltd. (1948) 1 All ER 406. The last case, being a decision of the House of
Lords, is clearly binding on this court, unless there is any relevant exception to the
general rule. That there is at least one exception appears from a case of my own at
first instance, In re X (A Minor) (Wardship: Injunction) (1984) 1 WLR 1422. In that
case I held that, in the exercise of the wardship jurisdiction, there was power to make
an order (prohibiting the publication of information about the ward) binding on the
world at large, when persons who were potentially subject to that order had not been
parties to the proceedings in which the order was obtained, with all respect to Sir
John Donaldson M.R., that was the ratio of decision, and I still believe it to have been
correct. It is true that I then said that I was satisfied that, if it were not an exercise of
the parental jurisdiction in wardship, there would be no such power, but the question
whether there might be other exceptions to the general rule was not then before me. I
believe that there can be another exception to the general rule which would enable the
court to make an order, binding on fhe world at large, in the circumstances of the
present case, where such an order may be appropriate to preserve the subject matter
of an action pending trial. The law of contempt is but one example of the court's ability
to regulate its own procedure so as to ensure that justice prevails. The rule that courts
normally act only in personam is but another example of the same process. If the
court needs to ensure that the subject matter of an existing action be preserved
against all comers pending the trial of the action, then in my judgment the court can
obtain the desired result by introducing another exception to the general rule that the
court acts only in personam. I can find nothing in the cases to which I have referred,
in which the general rule is stated, to say that the rule is wholly without exception,
and it is not without significance that the Canadian courts have felt themselves able to
make such orders".

38. Courts in United Kingdom, it appears, understand the distinction between civil
contempt and criminal contempt as we understand in India and accept a broad
classification, which has been recognised by our Courts as well as the Contempt of
Courts Act, 1971. But their thinking has since developed and they appear to approach
the problem with a reclassification as (a) a conduct which involves a breach, or
assisting in the breach of a Court order and (b) any other conduct which involves an
interference with the due administration of justice, either in a particular case, or more
generally, as a continuing process, the first category being a special form of the latter,
such interference being a characteristic common to all contempts. The distinction
between the two categories is that in gereral conduct which involves a breach, or
assisting in the breach, of a court order is treated as a matter for the parties to raise
by complaint to the court, whereas other forms of contempt are in general considered
to be a matter for the Attorney Advocate General to raise. In doing so, he acts not as a
government minister or legal adviser, but as the guardian of the public interest in the
due administration of justice, In the case of the former, the Courts do not only intend
to punish in the form of committal, attachment or fine, but also strike out all or part of
a claim or refuse to entertain the whole or part of a defence. Courts in United Kingdom
also maintain that an injunction can only restrain a part of a proceeding from doing
an act although it may restrain him from doing the act from himself or his servants or
agents and a third party is not held to be in contempt of an order restraining a named
person except that person, who aids and abets the commission of the breach. Rarely,
any exception was made like in the case of Mareva injunction. They however took
notice of the violation at the hands of the third party as a conduct interfering with the
administration of justice and treated it as a criminal contempt. As noticed in the
citations above, the law of contempt in United Kingdom is based upon the broadest of
the principle viz., that the Courts cannot and will not permit the interference with the
due administration of justice. Its application is universal and it is applied in novel
circumstances, Facts of a given case alone justify new example of committal action. In
the wardship injunction afore referred to, one such exception had been made. We find
that the above rules has been confined to United Kingdom but it has been extended by
the Canadian Courts also, at least once stated by the Viscount Haldane L.C. in SCOTT
v. SCOTT, (1913) AC 417, 437, "white the broad principle is that the Courts of this
country must, as between the parties, administer justice in public, this Principle is
subject to apparent exceptions, such as these to which I have referred to. But the
exceptions are themselves the outcome of a yet more fundamental principle that the
chief object of courts of justice must be to secure that justice is one. In the two cases
of wards of court and of lunatice. the court is really silling primarily to guard the
interests of the ward or the lunatic. Its jurisdiction is in this respect parental and
administrative and disposal of controverted questions is an incident only in the
jurisdiction. It may often be necessary, in order to attain its primary object, that the
court should exclude the public. The broad principle which ordinarily governs it
therefore yields to the paramount duty, which is the care of the ward or the lunatic.
The other case referred to, that of litigation as to a secret process, where the effect of
publicity would be to destroy the subject matter, illustrates a class which stands on a
different footing. There it may well be that justice could not be done at all if it had to
be done in public. As the paramount object must always be to do justice, the general
rule as to publicity, after all only the means to an end must accordinly yield. But the
burden lies on those seeking to displace its application in the particular case to make
out that the ordinary rule must be as of necessity saperseded by this paramount
consideration. The question is by no means one which, consistently with the spirit of
our jurisprudence, can be dealt with by the Judge as restingin his mere discretion as
to what is expedient. The latter must trest it as one of principle, and as turning, not on
convenience, but on necessity."

39. In the case of S. N. Bannerjee v. Kuchwar Lime and Stone Company Ltd., AIR
1938 PC 295 : 68 Cal LJ 488, the Privy Council in an appeal from a decision of the
High Court, Patna applied the rule of law as stated in Sfaward v. Patfrson (1897-1 Ch
545) (supra) and stated.

"The respondents, however, contended that even if the Secretary of State was not
himself guilty of direct disobedience to the injunction which had been granted, yet the
other two appellants were guilty of contempt upon the principles set out in Avery v.
Andirews, (1882) 51 U Ch 414 and Sfaward v. Pa'terson, (1897) 1 Ch. 545. In terms,
however, those cases limit the offence of contempt by a person not a party to the
injunction to cases where they aid and abet the party enjoined in its breach. Where, as
here, that party has not broken the injunction it is impossible to hold that anyone has
aided or abetted them in breaking it.

The respondents sought to avoid this difficulty by maintaining that the doing by
anyone of an act which was forbidden by the injunction was itself an offence.

Their Lordships can find no authority for so wide a proposition. It is certainly not
enunciated or indeed hinted at in the cases referred to nor do they think it is sound in
principle."

40. A Special Bench of the Patna High Court in Pratap Udal Nath v. Sara Lal, AIR
1949 Patna 39 considered a case of disobedience of an injunction decree and held that
equity acts in personam and reiterated the aforementioned law in Sfaword v. Paterson
(1897-1 Ch 545) in these words, "Equity acts in personam, and an injunction is a
personal matter. The Ordinary rule is that it can only be disobeyed in contempt by
persons named in the writ. None of the opposite parties in present case were
defendants in the suit or named in the decree. Mr. B. C. De, for the petitioner seeks to
overcome this difficulty upon the principle laid down in Avery v. Andrews, (1882) 51 U
Ch 414 : 46 LT 279 and Sfaward v. Paterson, (1897) 1 Ch 545 : & 6 LJ Ch 267 to the
effect that persons not party to the injunction may be proceeded against for contempt
for aiding and abetting the breach.

There can be, however, no question of aiding and abetting where there is no principal
offender. There is no one whom the opposite party can be said to have aided and
abetted. The principle, in my opinion, is not therefore applicable; and it seems to me
that the decision of the Privy Council in the case of S. N. Banerji v. Kuchwar Lime &
Stone Co. Ltd., ILR 17 Pat 770 : AIR 1938 PC 295 is conclusive upon that point."
41. In P. K. Kripalani v. Mahabir Ram Saha, , where a sub-tenant resisted the
execution of the order, a Division Bench of the Calcutta High Court said that
committal for contempt is a serious matter and the jurisdiction nust be exercised with
scrupulous care only in a case which is clear and beyond reason doubt. Such an order
should never be made if the case is doubtful. It is for the petitione: making for the
committal of another for contempt to justify clearly that the order should be passed. If
he fails to do so, no order should be made. Bench also said that a person bona fide
claiming to be rightfully in possession of property, is entitled in law to resist a court
officer from ousting him in execution of an order of Court passed in a proceeding to
which he was not a party. The Court held, (at p. 453 of AIR).

"The rule clearly is that the wilful disobedience to an order of a court requiring a
person to do an act, other than the payment of money is a contempt : Halsbury's Laws
of England (2nd Ed.) Vol. VII p. 30 Art. 42. But that rule does not, in our view, help
the petitioner in the present case, and this for two reasons. First, in order that the rule
may apply there must be an order on a person to do an act and in this case there is no
such order. All that the order of Roxburgh, J. does is to direct the bailiff to deliver
possession : it does not direct any other person to do any act. There is no question
here, therefore, of any person disobeying an order, unless it is the bailiff. The case of
Iberian Trust Ltd. v. Founders Trust & Investment Co. Ltd., (1932) LR 2 KB 87, 95
may be usefully compared with the case in hand. That was also a case of contempt for
not carrying out an order of the court and it failed on the ground that there was no
order on the defendant, the alleged contemnor.

Luxmoore, J. Said:

Now, turning back to Rowlatt, J.'s order, what is it that the defendant company have
been ordered to do which the company and its directors have failed to do? In terms,
the order does not direct the defendant company to do anything, it says: "that the
plaintiffs to have a return of the said shares within fourteen days". Am I to spell out of
that an order on the defendant company to do something ? I think not. if the Court is
to punish any one for not carrying out its order the order must in umahiguous terms
direct what is to be done.

Secondly, the opposite party No. 2 being no party to the proceedings resulting in the
order of Roxburgh, J., that order could not have directed him to do anything. As Lord
Eldon pointed out in Ivcson v. Harris, (1802) 7 Ves. 251, it was not competent to the
Court, "to hold a man bound by an injunction, who is not a party "in the cause for the
purpose of the cause." See also S. N. Bannerjee v. Kuchwar Lime & Stone Co. Ltd.,
(1939) 43 Cal WN 197 : (A1 R 1938 PC 295). The order of Roxburgh, J. not being
therefore an order on the opposite party No. 2 there is no question of his disobeying
that order or committing contempt by any disobedience thereof. It may be that if the
opposite party No. 2 is a tenant of opposite party No. 1, as he claims to be, the order
may have been binding on him in certain circumstances under R. 35 of O. 21 of the
Code of Civil Procedure, as was held in Yusuf v. Jyotish Chandra Banerji, (1932) ILR
59 Cal 739 : (AIR 1932 Cal 241). But this would not make the Order an Order on the
opposite party No. 2 for the order is binding on him only in the sense that it may have
been executed by removing him from possession notwithstanding that he was no party
to the proceeding in which the order was made. This therefore is not a case in which
the opposite party No. 2 can be said to have committed contempt by disobeying an
order of Court."

The Calcutta Court thereafter posed a question, can it then be said that the opposite
party No. 2 is guilty of contempt by obstructing the course of justice and settingthe
process of the Court at naught ? and answered, .

"If he did so he would undoubtedly be guilty of contempt and this although he was no
party to any proceeding in court which was obstructed thereby; Cooper, v. Asprey,
(1864) 3 B & S 932. It is contended on his behalf that he cannot be said to have done
that in this case as no interference with the process of the Court. Possession was
retaken from the petitioner after it had been delivered to him by the plaintiff, after, as
it was put, the force of the order had expired and therefore there was in this case in
any event, no obstruction to the course of justice whatever other offence or civil wrong
the retaking might have amounted to. On that facts of the present case it does not
seem to us that the argument is tenable. What happened was that the opposite party
No. 2 was present all along when the plaintiff was delivering possession to the
petitioner and he offered no resistance then nor attempted to retake possession till the
bailiff had turned his back. It is quite obvious that the opposite party No, 2 only lay by
so as to mislead the bailiff into believing that there was no opposition to possession
being delivered to the petitioner. The retaking of possession followed so soon after the
delivery of possession as in reality and substance to amount to being part of the
delivery of possession and therefore to obstructing the bailiff in carrying out the order.
A person who retakes possession of land from a party who had recently obtained
possession of it by a writ has been held to be guilty of contempt ; Oswald on Contempt
(34d Ed. p. 88, relying on In re Higg's Mortigage, Goddard v. Higg, 1894 WN 73. Again
in Lacon v. De Grost, 1893 10 TLR 24 it appears that the Sheriff had been able, after
much trouble, to execute a writ it and deliver possession of certain premises to the
party entitled to possession under an order of court, but immediately after the Sheriff
had gone away, the defendant and his men retook possession with the help of a
riotous mob from the party to whom possession had been delivered by the Sheriff and
they were held liable in contempt. Learned counsel for the contemnors had argued
that "the writ in fact had been executed, and so there "was no ground for a proceeding
for contempt". Baron Pollock said, in his judgment in this case.

In case like this, where judgment had been given that the plaintiff shall recover
possession of premises and a writ has been issued to the Sheriff to deliver possession;
if the officer has been apparently put in possession and the difendent chooses at some
later time to change his mind and come back to the premises and by craft or force to
again obtain possession, it was right that an attachment should be issued against him
on the ground that he had not really given up possession. Whenever, the writ being
put in force, the defendant or anybody who assists him does not fully and honestly
give up possession, but only colourably does so, the Judge applied to may and ought
to find that the process of the court had not been obeyed, and that there had been
contempt of court. In the present case the practical test was this; if the Sheriff's officer
had known what was intended he certainly would not have left the premises.

We are clearly of the opinion that in this case also, if the bailiff had suspected the
intention of the opposite party No. 2, he would not have left when he actually did. The
act of this opposite party, therefore, was as if he had in reality ousted the bailiff from
possession. Prima facie it would therefore appear that he was guilty of contempt. It
makes no difference that he was no party to the action, for a stranger has no more
right than a party, wilfully and wrongfully to oust the court's officer from possession or
prevent him from carrying out the Court's order."

42. A Division Bench of the Orissa High Court in Santosh v. Birachandra, also
reiterated the same view saying that the offence of contempt committed by
disobedience to order of injunction by a person not a party to the injunction is limited
to case a where he aids and abets the party enjoined in the breach and on the facts of
the case, held (Para 10):

"Admittedly, the appellant Sarpanch was not a party to the order of injunction passed
by the Subordinate Judge on April 8, 1962 in Miscellaneous Case No. 33 of 1962 in
Connection with the arbitration case against the Union of India and the State of
Orissa, who alone were parties in the said proceedings. The question is can it be said
that the appellant Sarpanch had in any way aided or abetted the persons so inhibited
in breaking the injunction? Our answer is 'No'. The name of the appellant Sarpanch
was not mentioned in the order of injunction. In view of the position that the
injunction was issued by the Court against the Union of India and the State of Orissa
alone in respect of the plots in dispute and further that the injunction order made no
mention of their servants and agents, the appellant Sarpanch cannot be found guilty
for disobeying the injunction."

43. One of the earlier judgments of the Calcutta High Court in Kailas Chandra v.
Sadar Munsif, Silchar, AIR 1925 Cal 817, considered a case of an injunction with
respect to a meeting of a company, which had been announced to take place on a
certain day. Previous to that day, a suit was instituted for declaring that the petitioner
and certain other persons are not competent to act as shareholders. A temporary
injunction was asked for restraining the defendants from acting as shareholders of the
company. The Court passed an injunction not restraining the shareholders in question
from voting at the meeting, but restraining the company from holding a meeting until
further orders. The order was not served on the petition. On the day of the meeting,
some of the shareholder including the petitioner porceeded to a private house and held
a meeting whereby they purported to appoint directors, etc. The petitioner was not a
party to the suit. The Court on such facts held, "These are the facts and one has only
got to state them to see that there has been an error at every stage in these
proceeding.....There are proper ways in which a meeting of a company can be called
either by the directors in accordance with the provisions of the Articles of Association
or by the shareholders on requisition, also in accordance with the provisions of the
Articles of Association. There is only other way of which I know, apart from any special
Articles of Association, that a meeting of a company can be called and that is by a
direction of a court to the Liquidator in winding up proceedings. The mere fact that
certain persons who happened to be shareholders of the company met together at a
private house and purported to pass resolution appointing directors and so on does
not make that a meeting of the company. For a meeting to be a meeting of the
Company it must be a meeting convened, in one of the ways to which I have referred
and convened strictly in accordance with the Article of Association. The result is that
the order of the 27 June, 1924 was wrong and there was no breach of that order as no
meeting of the company was held on the 18th of May 1924 as the Munsif seems to
have thought".

44. In Narain Singh v. Hardayal Singh, , the Court found the Executive Officer of a
Municipal Committee guilty of contempt of the disobediance of an order passed
against the Municipal Committee basically on the principle as Courts in England
punish for contempt strangers aiding and abetting breaches of prohibitory orders,
thereby obstructing the course of justice, but referred to 12 Amn. Jur. para 26 which
states, "The violation or disobedience of an injunction order issued by a Court having
jurisdiction in the matter, when committed by a party to the injunction suit or by a
third party having actual notice is a contempt of court.....This rule is not confined to
parties to the injunction. One who is not a party to the injunction suit, but who is
within the class of persons whose conduct is intended to be restrained or who acts in
concert with a party litigant or with a third party is guilty of contempt. Persons who
act as agents, servants, associates or confederates of parties to the injunction suit
may be held guilty of contempt in doing acts forbidden by the injunction order."

45. A Division Bench of this Court in N. Senapathi v. Sri Ambal Mills, has stated the
law in a case wherein an objection was taken to the rerritorial jurisdiction of the Court
of District Munsif, Coimbatore in issuing an order of injunction against the first
respondent company. Under the said order, holding an extraordinary general meeting
of the company was inhibited. However, several persons were brought in the contempt
proceedings including the 1st respondent Company, Managing Director of the
company, another director of the company and an advocate, who was the legal adviser
of the company. It appears that the notice of the orders of injunction had been served
telegarphically to respondents t and 2 informing them of the prohibitory orders.
Petitioner himself went to the notified place of meeting at 9.30 a.m. on 14-12-1964. He
found the shareholders and directors present including the respondents. Petitioner
informed those persons of the ex parte interim injunction and pointed out that holding
and passing the contemplated resolution would amount to flouting the orders of the
Court and to contempt of court. In spite of this, apparently due to an earlier wirttcn
legal opinion furnished by the 11th respondent concerning the validily and legal effect
of the interim orders of injunction, the meeting was actually held and the resolution
was passed. The Bench said (Paras 7 and 9):

"We have been at some pains to examine the law on this aspect of the flouting of an
order of Court, which may be passed without territorial jurisdiction, for, it seems to as
that this is of some importance and cases might arise frequently in actual judicial
administration. It seems to be abundantly clear that the question whether a court has
territorial jurisdiction or not, when one defendant indisputably resides within such
jurisdiction and the other ex facie does not, is primarily a question of fact for the court
to decide. For instance, it may depend on such a matter of evidence as the location of
a particular milestone in relation to a house of business, or the house of a private
individual. Even if such jurisdiction were altogether lacking, it could be easily cured
under Section 20(b) of the Code of Civil Procedure, either by an order of special leave
of court, or by the acquiescence of the concerned party. Where neither of these
elements is available, we may assume that Prima facie, the Court has no territorial
jurisdiction to exercise its powers over the concerned defendant including a power to
inhibit the acts of the defendant by an interim injunclion. But we do think that it is
very important that a distinction should be made between a lack of jurisdiction which
does not go to the root of the powers of Court, such as an absence of territorial or
pecuniary jurisdiction or an alleged absence in these respects, and a lack of
jurisdiction which is basic to the very organisation of Court, or to the scope of its
powers. Authorities are available for the view that a mere absence of territorial or
pecuniary jurisdiction does not proceed to the root of the matter of jurisdiction and is
capable of cure by acquiescence by order of Court, or in other respects as provided for
by law... An order irregularly obtained cannot be treated as a nullity, but must be
implicitly obeyed until by a proper application, it is discharged... It is sufficient to refer
here to Halsbury's Laws of England, 3rd Edition, Volume 8 part I Sec. 3, sub-section
39 (also see Oswald on Contempt 1910 Edition 106 which runs thus):

"A stranger to an action who aids and abets the breach of a prohibitory order
obstructs the course of justice and this contempt is punishable by committal or
attachment."

There are several English cases cited in the books in support of this authority. Hence
as far as these other respondents are concerned, they are undoubtedly guilty of
contempt, whether they were parties to the order or otherwise so long as it was
brought to their notice that the meeting was prohibited and nevertheless they
participated in it.

46. We can see thus clearly that the Courts in India invariably accepted the law
applied in England and found (1) a party to the suit if he had notice or knowledge of
the order of the Court and (2) a third party or a stranger, if he had aided or abetted the
violation with notice or knowledge of the order of injunction guilty of civil contempt
and otherwise found a (bird party guilty of criminal contempt if he has been found
knowingly obstructing implementation of its order of direclion, if ii is found in the
instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and
the order of the learned single Judge was directed to his conduct also and he violated
the order after notice or knowledge, he shall be guilty of civil contempt. He can still be
found guilty of civil contempt if he is found to have aided and abetted the violation of
the order of the Court. Even otherwise it is found that he obstructed or attempted to
obstruct the implementation of the Court's injunction/direction, he may be found
guilty of criminal contempt provided he had the notice or the knowledge of the order of
the Court. It will be only after a determination of the nature of the disobedience that it
will be possible for the Court to say whether the procedure applied to a civil contempt
shall be applied to the contempt proceeding in his case or the procedure applied to a
criminal contempt will be applied (o it. In the former case, the learned single Judge
shall be competent to proceed. In the latter case, it shall be before a Division Bench
and subject to such conditions as are envisaged under the Contempt of Courts Act,
1971. We have however no hesitation, in view of the principles of law noticed by us
that this Court's power as the Court of Record will extend not only to the
determination of the contempt but also the determination whether on the allegations
brought before it, a civil contempt is made out or a criminal contempt is made out and
instead of any action of committal for contempt, the Court should make any such
order which would be in the administration of justice or not. We 'have already noticed
that there are provisions in Order XXXIX Rule 2A of the Code of Civil Procedure as a
remedy for the violation of temporary or interim injunction. Besides what is
contemplated under Order XXXIX Rule 2A of the Code of Civil Procedure, Courts have
found another source of power in Section 151 of the Code of Civil Procedure and if that
is also ignored for a moment, this Court's power as a Court of Record and a Court of
Special jurisdiction is preserved under Articles 215 and 225 of the Constitution of
India. There have been cases before several Courts in which when faced with
situations that some order or direction was violated and the violation resulted in grave
and serious injury, the Courts took the view that the Code of Civil Procdure is not
exhaustive. There are cases which say that if remedy to do justice is not provided for
in the Code or any other Act, the High Court must not fold its hands and allow
injustice to be done.

47. In Bhagat Singh v. Dewan Jagbir Sawhney, AIR 1941 Cal 670, a learned Judge of
the Calcutta High Court observed that the law cannot make express provisions against
all inconveniences and that the Court had, therefore, in many cases where the
circumstances warranted it, and the necessities of the case required it, acted upon the
assumption of the possession of an inherent power to act ex debito justitiae and to do
that real and substantial justice for the administration of what it alone exists.

In Manchar Lal v. Seth Hiralal, , the Supreme Court approved the above statement of
law.

48. In Hari Nandan v. S. N. Pandita, , the Allahabad High Court has taken the same
view, namely that when a party has been dispossessed in disobedience of the order of
injunction, the Court can in exercise of its inherent power pass such order for ends of
justice as would undo the wrong done to the aggrieved party. A similar view has been
expressed in Magna v. Rustarn, .

49. Kerr on Injunctions, 6th Edition, Page 41 has said :

"But where the injury is of so serious or material a character that the restoring things
to their former condition is the only remedy which will meet the requirements of the
case, or the defendant has been guilty of sharp practices or unfair conduct, or has
shown a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the
Court, the injunction will issue, notwithstanding the amount of inconvenience to the
other party, and though the expense thereby caused to him will be out of proportion to
any advantage the plaintiff may derive from it."

50. In one of the recent judgments in Sujit Pal v. Prabir Kumar Sun, , a Division
Bench of the Calcutta High Court has reiterated this view and stated that "no
technicality can prevent the Court from doing justice in exercise of its inherent power.
Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party
to comply with the order of injunction. The process as contemplated by the said
provision may or may not be ultimately effective but, in any event, the procedure laid
down in O. 39 R. 2A is incapable of granting an immediate relief to a party who has
been forcibly dispossessed in violation of an order of injunction. In such a case the
Court is not powerless to grant relief to the aggrieved party in exercise of its inherent
power."
51. A similar view has been expressed by a Full Bench of this Court in Century Flour
Mills v. S. Subbiah, . The Full Bench has said (at pp. 271-272 of AIR), "Since the
matter is not res integra, the best way to approach the question is to refer to the
decided cases and in the light of it, to come to a conclusion. Cases are agreed that,
whether it is a stay order or injunction, essentially, there is no difference between
them except that in the case of a stay order, it is addressed to the Court concerned
and in the order, to the person inhibited from doing a certain thing. There is also no
difference that so far as Order XXXIX, C.P.C. is concerned, it confers only limited
powers and would not be of assistance in circumstances as in the present case.... In
our opinion, the inherent powers of this Court under Section 151, C.P.C. are wide and
are not subject to any limitation. Where in violation of a stay order or injunction
against a party, something has been done in disobedience, it will be the duty of the
Court as a policy to set the wrong right and not to allow the perpetration of the wrong
doing. In our view, the inherent power will not only be available in such a case, but it
is bound to be exercised in that manner in the interests of justice. Even apart from  S.
151, we should observe that as a matter of judicial policy, the Court should guard
against itself being stultified in circumstances like this by holding that it is powerless
to undo a wrong done in disobedience of the Court's order. But in this case it is not
necessary to go to that extent as we held that the power is available under S. 151,
C.P.C.

52. One important aspect of the case since there has been some arguments before us
about it is, can it be said that for a breach of the injunction by a party or a stranger
for aiding or abetting the breach alone, the Court's inherent power can be exercised
and not in a case of a third party, who had the knowledge of the order, but decided to
violate it, who may be guilty of obstructing the administration of justice still, will not
be subject to any restitution order? This we feel needs no detailed discussion. No
person can obstruct the path of justice. No one can escape by committing a gross and
violent obstruction to the implementation of the order/direction of the Court. The only
question relevant in such a situation will be, whether the right which such a person
has pleaded has been acquired by the violation of the order or had existed in him
independently unaffected by the injunction. There can be no other law than one stated
above that no person should be allowed to reap the benefits of a wrong done by him
and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer
can always be subjected to the inherent jurisdiction of the Court, which is not
different for the civil or criminal contempt. Whether it is a civil concept or a criminal
contempt, it is a contempt of Court and the disobedience of the order in any case is an
obstruction in the administration of justice. It has been urged however that any order
of restitution or restoration of the status quo ante by the order of the Court should be
as a consequence of the commission of the breach having been established. Reference
has been made to certain procedure adopted by Courts in England that where
judgments or orders of the Court are disobeyed, they are enforced by writ of
sequestration or an order of committal. This however should not detain us beyond
stating that even if it is assumed that the Court shall make an order of restitution or
restoration of the status quo ante as a consequence of the finding of guilt of
disobedience, if there can be such a power, there can always be ancillary to it the
power to make an interim order to the said effect subject to the final determination of
the case.
53. In M. S. Gill v. C.E.C., , the Supreme Court has observed with respect to the power
of the Court and the Chief Election Commissioner under Sections 97, 98 and 99 of the
Representation of People Act and said (at pp. 884-885 of AIR), "If a candidate whose
return is challenged, has a case invalidating the challenger's election, he may set it up
subject to the provisions in Section 97. Then comes the finale in Section 98. The High
Court has three options by way of conclusive determination. It may (a) dismiss the
petition (b) declare the election void and (c) go further to declare the petitioner duly
elected. Side-stepping certain species of orders that may be passed under Section 99,
we have to explore the gamut of implied powers when the grant of power is wide but
needs incidental exercises to execute the substantive power... Everything necessary to
resurrect, reconstruct and lead on to a consummation of the original process. May be,
to give effective relief by way of complaint of the broken election, the Commissioner
may have to be directed to hold fresh poll and report back together with the ballots. A
recount of all or some may perhaps be required. Other steps suggested by other
developments may be desired. If anything integrally linked up with and necessitated
by the obligation to grant full relief has to be undertaken or ordered to be done by the
election machinery, all that is within the orbit of the election court's power. Black's
Law Dictionary explains the proposition thus;

"Implied powers are such as are necessary to make available and carry into effect
those powers which are expressly granted or conferred, and which must therefore be
presumed to have been within the intention of the constitutional or legislative grant.
This understanding accords with justice and reason and has the support of
Sutherland. The learned Additional Solicitor-General also cited the case of Matajog
Dobey v. H. C. Bhari, , and Commissioner of Commercial Taxes v. R. S. Jhaver, , to
substantiate his thesis that the doctrine of implied powers clothes the Commissioner
with vest incidental powers. He illustrated his point by quoting from Sutherland Frank
E.

Harack Jr. Vol. 3 "Necessary implications.

Where a statute confers powers or duties in general terms, all powers and duties,
incidental and necessary to make such legislation effeetive are included by
implication. Thus it has been stated.

"An express statutory grant of power of the imposition of a definite duty carries with it
by implication in the absence of a limitation, authority to employ all the means that
are usually employed and that are necessary to the exercise of the power or the
performance of the duty. That which is clearly implied is as much a part of a law as
that which is expressed. The behind the rule is lo be found in the fact that legislation
is enacted to establish broad or general standards. Matters of minor details are
frequently omitted from legislative enactments and if there could not be supplied by
implication, the drafting of legislation would be an interminable process and the true
intendment of the Legislature likely to be defeated. The rule whereby a statute, is by
necessary implication extended, has been most frequently applied in the construction
of laws relegating powers to public officers and administrative agencies. The power
thus granted involves a multitude of functions that are discoverable only through
practical experience.
A municipality empowered by statute to construct sewers for the preservation of the
public health, interest and convenience was permitted lo construct a protecting wall
and pumping plant which were necessary for the proper working of the sewer, but
were essential to public health. A country school superintendent, who was by statute
given general supervisory power over a special election, was permitted to issue
absentee ballots. The power to arrest has been held to include the power to take finger
prints and take into custody non-residents who were exempted from the provisions of
a licensing statute."

54. Confronted with the provisions in Section 125 of the Code of Criminal Procedure
which provides for grant of maintenance after adjudication the Supreme Court
in Savitri v. Govind Singh Rawat, said, "In the absence of any express prohibition it is
appropriate to construe the provisions in Chapter IX as conferring an implied power
on the Magistrate to direct the person against whom an application is made
under Section 125 of the Code to pay some reasonable sum by way of maintenance to
the appellant pending final disposal of the application. It is quite common that
applications made under Section 125 of the Code also takes several months for being
disposed of finally. In order to enjoy the fruits of the proceedings under Section 125,
the applicant should be alive till the date of the final order and that the applicant can
do in a large number of cases only if an order for payment of interim maintenance is
passed by the Court. Every Court must be deemed to possess by necessary
intendment all such powers as are necessary to make its orders effective. This
principle is embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo
res ipsa non potest (where anything is conceded, there is conceded also anything
without which the thing itself cannot exist) (vide Eral Jowitt's Dictionary of English
Law 1959 Edn. p. 1797). Whenever any thing is required to be done by law and it is
found impossible to do that thing unless something not authorised in express terms
be also done, then that some thing else will be supplied by necessary intendment.
Such a construction though it may not always be admissible in the present case
however would advance the object of the legislation under consideration. A contrary
view is likely to result in grave hardship to the applicant, who may have no means to
subject until the final order is passed. There is no room for the apprehension that the
recognition of such implied power would lead to the passing of interim orders in a
large number of cases where the liability to pay maintenance may not exist. It is quite
possible that such contingency may arise in a few cases but the prejudice caused
thereby to the person against whom it is made is minimal as it can be set right quickly
after hearing both the parties".

This view has been expressed in a large number of cases including Nemai Chand Jain
v. Lila Jain, , and Century Flour Mills Ltd. v. S. Subbiah, , and in a case under Section
18 of the Hindu Adoption and Maintenance Act on the question of interim
maintenance, a learned single Judge of this Court in the case of D. Udayar v. Raja
Rani ammal, has said (at p. 371 of AIR), "When the jurisdiction of the Court is
attracted by filing a suit the Court has power to make interlocutory orders in aid of the
suit. Denial of status does not take away the jurisdiction of fhe Court.... Bearing the
general principles in view, namely the acts of Court including its delays ought not to
prejudice and cause hardship to any party, the power to make an interim order is
implicit, ancillary and a necessary corollary of the power to entertain a suit and pass
final orders therein.
55. There are three possible stages, where to redress damage or injury, the Court may
decide to grant a mandatory injunction in a case in which a certain injunction is
violated.

(1) there can be an injunction apprehending further contempt, unless further order is
not made to stop, the violation will continue or perpetrate.

(2) Final adjudication of the damage is postponed and a temporary but mandatory
order is made, and (3) Damage or injury is finally determined, and steps taken to
effectuate the order.

The Supreme Court has said in R. P. Ltd. v. Proprietors, Indian Express Newspapers,
Bombay Pvt. Ltd., .

"We must see whether there is a present and imminent danger for the continuance of
the injunction. It is difficult to lay down a fixed standard to judge as to how clear,
remote or imminent the danger is.... It is necessary to reiterate that the continuance of
this injunction would amount to interference with the freedom of press in the form of
preventive injunction and it must, therefore, be based on reasonable grounds for the
sole purpose of keeping the administration of justice unimpaired. In the words of Mr.
Justice Brandeis of the American Supreme Court concurring in Charlotte Anita
Whitney v. People of the State of California, (1926) 71 Law Ed 1095 at p. 1106, there
must be reasonable ground to believe that the danger apprehended is real and
imminent. This test we accept on the basis of balance of convenience. This Court has
not yet found or laid down any formula or test to determine how the balance of
convenience in a situation of this type, or now the real and imminent danger should
be judged in case of preventive publication of an article in a pending matter.....

The law of contempt must be judged in a particular situation. The process of due
course of administration of justice must remain unimpaired. Public interest demands
that there should be no interference with judicial process and the effect of the judicial
decision should not be pre-empted or circumstanced by public agitation or
publications. It has to be remembered that even at turbulent times through which the
developing countries are passing, contempt of Court means interference with the due
administration of justice."

The narration of Korren Injunction above, the law as stated in Bhagat Singh v. Dewan
Jagbir Sawhney, (AIR 1941 Cal 670) (supra) and the statement of law in Sujit Pal v.
Prabir Kumar Sun, (supra) lend support to the view that any action under Order 39,
Rule 2A of the Code of Civil Procedure of contempt can be postponed and the Court
may issue a temporary mandatory injunction and order for restoration of status quo
ante. The Supreme Court in State of Bihar v. Rani Sonabati Kumari, has held in
respect of a proceeding under Order 39, Rule 2(3) of the Code of Civil Procedure before
amendment, similar to the amended provision of Order 39, Rule 2A that these
provisions a punitive aspect as evident from the contemner being liable to be ordered
to be detained In civil prison but they arc in substance designed to effect the
enforcement of or the execution of the order. Thus to effect the enforcement of the
order or to execute the order, which is found not to have been implmented,
irrespective of whether action for contempt is taken or not, the Court can order for
status quo ante by issuing a mandatory injunction. It is indeed ancillary to the Court's
power to grant finally on the conclusion of the contempt proceeding that the Court will
also have the power to make an interim mandatory injunction. A question may
legitimately arise as to what consideration may prompt the Court to ignore or overlook
the contempt proceeding or postpone the contempt proceeding or order for a
mandatory injunction pending a final adjudication. Here one may Bear in mind that
merely because the Court's special jurisdiction or inherent jurisdiction is invoked at a
stage when a pelition for contempt is filed, it will be wrong to say that such
jurisdiction of the Court is invoked in the contempt proceeding, it is a jurisdiction a
special or inherent designed to effect the enforcement or the execution of the order.
Where the injury is of so serious or material a character, that the restoring things to
their former condition is the only remedy which will meet the requirements of the case
or the defendant has been guilty of sharp practices or unfair conduct or has shown a
desire to steal a march upon the plaintiff or to evade the jurisdiction of the Court, a
jurisdiction of this kind can be exercised in a pending proceeding, a suit, a contempt
proceeding, oreven an independent proceeding after the final order or decree which
has been evaded or violated. To put any restriction upon the jurisdiction of the Court
in this regard will render the constitutional protections under Articles 215 and 225 of
the Constitution aforequoted and afore discussed ineffective and unenforceable. When
then however be the consideration that will induce the Court to resort to such
jurisdiction will depend upon the nature of the injury, its seriousness and the threat it
created to the enforcement of the order of the Court and the public interest of the
administration of justice on the one hand and the rights of the parties on the other
hand. As observed in the case of Manga v. Ruslam, , the object of such an order being
to safeguard the rights of a party against a threatened invasion by the other party, if in
disobedience of the order of injunction, such rights are invaded during the pendency
of the suit, the inherent power under Section 151 of the Code can be invoked and a
mandatory injunction can be granted. The Courts have also to lake notice of the larger
and higher interests of the administration of justice which is a public interest and this
should receive the first priority in considering whether the Court's special or inherent
power should be exercised or not. Grant of a temporary mandatory injunction will
naturally thus require not only a strong Prima Facie Case To Ensure That the Court's
injunction or direction should first be implemented or until it is implemented, status
quo ante is maintained, it shall also bring into consideration such rules on balance of
convenience which are relevant quo rights of the parties in dispute and the public
interest of the administration of justice.

56-57. Adverting to the facts of this case, we knew that the main relief in the suit to
declare that the notice dated 26-5-1990 issued by the first and second defendants on
the basis of the requisition notices convening a Special General Meeting of the
Association on 15-6-1990 is illegal, null and void cannot be said to have become
infructuous merely because the Court instead of granting any injunction to hold the
meeting on 15-6-1990, gave a direction to consider an agenda of no-confidence against
the Executive Council and election of new President and members of the Council in a
particular manner. It can still be found in the suit that the notice was illegal, null and
void and as a consequence, the Court may suitably modulate the relief or permit the
plaintiffs to amend the relief. Besides this the trial Court will have jurisdiction to
consider the grant of a mandatory injunction even in a suit which stood disposed of if
iis decree is found to have been violated or frustrated. The trial Court being a Court of
Record will have special jurisdiction/inherent power to pass such orders as arc
deemed necessary to meet the ends of justice since this power is saved for it under
Sections 4 and 151 of the Code of Civil Procedure and Articles 215 and 225 of the
Constitution. The instant suit which is still pending, shall give to the Court power to
consider the desirability to grant a mandatory injunction, for the reason of its interim
injunction having been violated, to remove the violation and until the suit is finally
decided to preserve the property in dispute in Status Quo.

58- Our attention has been drawn to several provisions of the Memorandum of
Association including Clause (c) of Article XXVII thereof which states, "The Association
may sue or be sued in the name of the Secretary General, 10A -- A law suit can only
he filed at New Delhi, the headquarters of the I.O.A."

It is suggested on that basis that the second defendant being the Secretary-General of
Indian Olympic Association, the suit has been one against the Association and thus
addressed to every person connected with the Association. If this clause is required to
be applied, it may be deemed that the Association is the second defendant, but then
the suit had to be filed at New Delhi and not at Madras. Even if it is assumed that the
Association has been a defendant and thus the direction issued by the Court was
directed to the Association, a question will arise whether the order of the Court merely
because it was addressed to the Secretary-General, who represented the Association,
was an order addressed to the representatives, who had arrived to participate in the
Special General Meeting or not. The General Assembly had been defined in the Rules
and Regulations of the Association to mean and include the Representatives deputed
by the Members in accordance with the Rules and the persons holding Indian
citizenship and who are Members of the International Olympic Committee. Article III
names the members as National Sports Federations/Associations, whose sport is
included in the Olympic/Asian or Common Wealth Games, National Sports
Federations/ Associations, which represent widely played Indian sports recognised by
the I.O. A., Olympic Associations of State, as well as Centrally Administered Union
Territories, Service Sports Control Board and the Indian Citizens who are Members of
the International Olympic Committee. As to who may be eligible to participate in the
general meeting and special meeting of the Association and who may be eligible to vote
or who qualify for being elected to the Executive Council, etc. may be gathered from
the provisions which say that at the annual general meeting and special general
meeting, the members shall be entitled to send their representatives and will depend
mainly upon the Sports Federations and the Associations sending their
representatives as they are such members under the Rules and Regulations of the
Association who are entitled to send their representatives. We do not think it is
necessary for us in this appeal to decide on facts in dispute as to who participated or
who was eligible to participate in the special general meeting called on 15-6-1990. But
as we have noticed above, it will be necessary for the Court before finding out whether
Sri Shukla is guilty of civil contempt, to decide whether defendants 1 and 2 were
implcaded in their individual capacity or defendant No. 2 as alleged represented the
Association and thus the order/direction of the Court was addressed to the
Association and if it was addressed to the Association it was also addressed to Sri
Shukla. In other words, since the Association was a party, Sri Shukla was also a party
at the time of the order/direction which has allegedly been violated. If it is not so
found, the Court shall have then to consider whether there are any materials to show
that Sri Shukla aided and abetted the violation of the order/direction of the Court. In
cither case, it will be necessary to record a finding that notice of the Court had been
served upon Sri Shukla or he had knowledge of the order/direction of the Court
otherwise. In the event of the Court finding that the order had been addressed to Sri
Shukla and he had the knowledge of the order when the violation took place, he may
be found guilty of civil contempt, provided other ingredients of contempt are found to
exist. Sri Shukla still may be found liable for civil contempt even though the order of
the Court had not been addressed to him if there are materials to show that he had
aided and abetted in the commission of the violation having notice or knowledge of the
order of the Court, even otherwise he may be found guilty of contempt but as a
stranger or a third party for obstructing the course of justice, a criminal contempt and
not a civil contempt. In the case of a civil contempt, found to have been committed by
Sri Shukla, the Court shall have full power to direct him by an order in the nature of a
mandatory injunction to restitute or restore the Status Quo as it obtained on the date
of the order besides such punitive actions which the Court may take against him in
exerciseof its power under Order 39, Rule 21 of the Code of Civil Procedure or as a
Court of Record under Art. 215 of the Constitution of India read with the relevant
provisions of the Contempt of Courts Act, 1971. Incase it is found however that the
order of the Court had not been addressed to Sri Shukla as a representative of one of
the members of the Association, nonetheless it is found that he had the knowledge of
the order/direction of the Court, and he knowingly and deliberately constructed the
implementation of the order/direction of the Court, he may be found guilty of criminal
contempt; the Court shall not be powerless even in such a case and may direct Sri
Shukla or any other person who may be found to have stood in the way of
implementation of the order/direction of the Court, to remove the obstruction and
restore Status Quo Ante, besides any effective action that may be taken in the criminal
contempt. The Court's power under its special jurisdiction of inherent jurisdiction to
make such an order even in the case of a criminal contempt cannot be denied. It shall
however be necessary in the case of a criminal contempt that the procedure prescribed
under the Contempt of Courts Act, 1971 is followed and the criminal contempt will
have to be dealt with by a Division Bench and not by the learned single Judge that is
to say the trial Court. Learned trial Judge has found in this case that it was not
possible to accept the contention that there was no intimation or information or
knowledge to Sri Shukla about the order passed by the Court at the meeting. He has
however not considered the question whether the order/direction of the Court had
been addressed to Sri Shukla or not. whether there were/are materials to show that
Sri Shukla aided and abetted in the commission of the violation of the order/direction
of the Court or not and whether as a third party, Sri Shukla obstructed the due courts
of justice or not. Learned trial Judge however has rightly observed that in disposing of
the sub-application under Section 151 of the Code of Civil Procedure, it was not
relevant or necessary to go into the question of contempt, if he has meant to say that it
was not necessary to dispose of the contempt petition finally because even for a Prima
Facie determination for the purpose of removing the obstruction in the implementation
of the order/direction of the Court, or for enforcing the order/ direction of the Court, it
will be necessary to find that Sri Shukla violated the order of the Court or that he
obstructed the execution of the order of the Court. Besides such a finding as noticed
by us above, it will also be necessary to consider all aspects of inconvenience that Sri
Shukla suffer on the one hand and the injury that may be caused would be of so
serious or material a character that the restoring things to their former condition is
the only remedy which will meet the requirements of the case or that Sri Shukla had
been guilty of sharp practices and unfair conduct or had shown a desire to steal a
march upon the plaintiff or that he had acted to evade the jurisdiction of the Court
and such other principles which govern or emerge from the rule of the balance of
convenience on the other hand. Learned trial Judge has got jurisdiction for making an
order in the nature of mandatory injunction but on principles that we have noticed
above.

59. Mr. K. K. Venugopal has conceded that Learned trial Judge has not addressed
himself to the above aspects of the case. Mr. Cooper, who has followed him, has
submitted that the question aforementioned are questions of law. Both of them
however have urged that this Bench as the Court of Appeal should determine these
questions and decide the controversy finally. Mr. Kapil Sibbal on the other land,
however, has submitted that any determination of these questions at this appellate
stage will cause serious prejudice to the interests of the appellant as he may be
deprived of a right of appeal under the Letters Patent against any finding on the
question above by the learned trial Judge and in case it is found to be a criminal
contempt of his right of being tried by a Division Bench subject to the statutory appeal
before the Supreme Court.

60. We have given cur anxious consideration to the matter. We are of the opinion that
it will be fair and equitable to remit back the case to the trial Court to consider the
case in the light of the observations with respect to the law on the subject by us above.
But we are not able to close our eyes to the serious injury that the sports in the
country is likely to suffer on account of the remand and delay in determination of the
matter in full even for the purpose of granting an immediate relief by an order of
mandatory injunction. Since we have found that the Court can grant temporary
mandatory injunction pending a contempt petition or independent of it, we have no
hesitation or doubt in holding that the Court, pending a decision on the desirability of
issuing a temporary mandatory injunction and restoration of status quo ante to
ensure the enforcement of or the execution of the order/direction which has been
allegedly violated, can make an ad interim order as well either in the nature of
mandatory injunction and restoration of status quo ante or by an order to ensure that
until issue of the grant of mandatory injunction and restoration of status quo ante is
decided, no injury is caused to the public interest of sports. The Supreme Court has
also shown its concern to the state of affairs of the Indian Olympic Association causing
serious injury/damage to the interest of Sports. While it may be said that if it is found
that no confidence resolution has not been adopted, the plaintiffs have a right for
continuance of the status quo as it obtained before 15-6-1990 and if it is found that
Sri Shukla has acquired an independent right to the office of the President of the
Indian Olympic Association unaffected by the order/direction of the Court, then Sri
Shukla has got a right to be the President of the Indian Olympic Association, these two
conflicting interests have to be balanced with reference to the facts that may be found
one way or the other. In our opinion, there shall be no injury of any kind to any of the
parties to the proceeding including the plaintiffs or to Sri Shukla if all of them arc
asked to keep away from the Indian Olympic Assocciation until the issue as to the
grant of mandatory injunction is decided. We are more inclined in favour of such an
order for the reason that only the President and the Secretary-General of the
Association before 15-6-1990 are present as part defcndcnts in the suit. The Executive
Council of the Association has got as its members besides the President and the
Secretary-General, 9 Vice-Presidents, 6 Joint-Secretaries, a Treasure. 7 members
elected from among the Representatives of the State Olympic Associations and 12
members elected from amopng the Representatives of National Special
 Federations/Associations/ S.S.C.B. who are not before this Court. It is not known
whether they desire to be restored as members of the Executive Council and are
willing and ready to function in the said capacity. It is one of the settled rules that
even a temporary mandatory injunction should not be granted in favour of a person,
who is not willing to get such an order. It will be inappropriate therefore to restrain Sri
Shukla until the entire matter is finally decided as observed by us earlier. But at the
same time, it shall be wholly inappropriate to allow Sri Shukla to function as the
President or those nominated by him to constitute the Executive Council in view of the
seriousness of the allegations made on behalf of the plaintiffs because it is clearly the
case of Sri Shukla that he was elected as the President of the Association as a result of
the no-confindence resolution, which if at all adopted, was not adopted in accordance
with the directions of this Court.

61. For this reason and the reason of the interest of the sports as well as the interest
of administration of justice, two public interests, we are inclined to order that until the
final adjudication of the issue whether any mandatory injunction be issued for
restoration of status quo ante or not, the administration of the Association is put in
the hands of a person of eminence, independence and who takes interest in sports.

62. In the result, the appeal is allowed.

The order of the learned trial Judge dated 11-7-1990 made in Sub-Application No. 230
of 1990 is set aside. The case is remitted back for a fresh hearing and disposal in
accordance with law and in the light of the observations made above. Pending disposal
of the said application, it is hereby ordered that Shri S. Natarajan. a retired Judge of
the Supreme Court shall he the one Member Executive Council, who shall exercise all
the powers vested in the Office-bearers including the President as well as the
Executive Council in consultation with a Committee nominated by him of men
representing National Sports Federations/ Associations, Stale Olympic Associations
and the International Olymic Committee members in India not exceeding seven and
receive a fixed honorarium of Rs. 15,000/- p.m. and expenses and allowances
admissible to the President of the Indian Olympic Association from the funds of the
Association. Parties are directed to comply with the order forthwith. Since the matter
is of importance and far-reaching consequences, we direct that the sub-application be
disposed of as quickly as possible preferably within a period of two months.

63. Order accordingly.

3. 1991 SCC OnLine Pat 260 : (1993) 1 PLJR 437

Patna High Court
(Ranchi Bench)
BEFORE S.B. SINHA AND R.N. SAHAY, JJ.
An application under section 12 of Contempt of Court Act read with Article
215 of the Constitution of India
Ram Vilas Mishra … Petitioner;
Versus
State of Bihar and others … Opposite party.
Miscellaneous Judicial Case No. 155 of 1990 (R)
Decided on September 3, 1991
The Judgment of the Court was delivered by
S.B. SINHA, J.:— In this application, the petitioner has prayed for punishing the
opposite parties under the Contempt of Court Act, 1971 for wilful disobedience of the
order dated 4.1.1990 passed by a Division Bench of this Court in C.W.J.C. No. 2163 of
1989 (R).
2. The fact of the matter lies in a very narrow compass.
 3. The petitioner on the date of his superannuation, that is 31.8.1980 was posted as
Assistant Jailor, Daltonganj at Palamau. According to the petitioner, the pay last
drawn by him was Rs. 420/- and he had been receiving a provisional pension of Rs.
304/- only. As despite the fact that the petitioner superannuated in 1980, his pension
and other retiral benefits had not been finalised he filed a writ petition in this Court
which was registered as C.W.J.C. 2163 of 1989 (R).
 4. By an order dated 4.1.1990, this Court passed the following order:—
“The petitioner superannuated with effect from 31.8.80 and his grievance is that he
is still getting provisional pension.
Let this case be listed under the same heading after eight weeks.
It is ordered that the concerned respondents shall finalise the case of the petitioner
so that authority slip for the payment of arrear pension as well as pension at the
amount he is entitled to receive is issued within that time. If the order is not
complied with within that time, appropriate action will be taken against the
defaulting respondents.
 5. The matter again came up before this Court on 2.3.1990 when the following order
was passed:—
“It was submitted by Mr. Dubey that his case has not been finalised although
ordered by this Court on 4.1.90. The petitioner may file an application for initiating
a contempt of court proceeding against the concerned respondent.
Mr. Debi Prasad produced a note of the Accountant General to show that as the
State Govt. has not sanctioned the payment of pension, no action on the part of the
Accountant General would be taken.”
 6. The petitioner, thereafter communicated the aforementioned orders dated 4.1.1990
to the cancerned authorities. The Jail Superintendent Palamau also by his letter dated
12.5.1990 asked the Accountant General to finalise the matter relating to payment of
pension. From a perusal of the said letter, however, it appears that therein a request
was made to the Accountant General that a sum of Rs. 89522.06 being recoverable
from the petitioner the said amount be adjusted from the account of

   final pension payable to the petitioner by way of his retiral benefits.

 7. In this case, separate show causes have been filed by the contemners/opposite
parties nos. 2, 3 and 4. Upon perusal of the show cause filed by the Inspector General
of Prisons by order dated 1.5.1991, a Division Bench of this Court observed as follows:
—
“Today, the Superintendent of Jail Daltonganj and Inspector General, Prisons these
two officers are present. They have also filed their show cause. The Inspector
General Prisons in his show cause has annexed a document marked Annexure A/3
which appears to be pension payment order dated 29.5.1990 which provided (a)
payment of pension from 1980 to 1982 at the rate of Rs. 304/- (b) for recovery of a
sum of Rs. 89522 and odd and (c) for adjustment of Rs. 804.04 ps. from the
pension payment order. The petitioner stated that he has never received this
pension payment order nor did he face any proceeding ever after his retirement of
these 10 long years. He has been told now that dues of Rs. 89522 and odd stands
to his credit. Mr. Roy appearing on behalf of Inspector General, Prisons states that
this amount has been fixed by Accountant General and, therefore, Accountant
General is the proper person to spell it out. Learned counsel for the petitioner, on
the other hand, states that last time in the writ application Accountant General
appeared and stated that he is unaware of anything since papers were never sent
to him. In view of the stand taken in the show cause, we allow the petitioner to add
the Accountant General, Bihar as a party to this case.
2. Let notice be issued to the Accountant General Bihar along with a copy of this
order. The Accountant General Bihar on his appearance will spell out about this
sum and why when the petitioner started for contempt of court this demand has
been made and not earlier.
3. The appearance of these two officers is dispensed with for the present.
4. Put up this matter after annual vacation.”
 8. Thereafter, a show cause had been filed on 26.6.1991 by the Accountant General
also.
 9. On 4.7.1991, a supplementary show cause has also been filed on behalf of
Inspector General, Prisons.
 10. In the show cause filed by the opposite party, it was contended that a pension
payment order had already been issued by the Accountant General on 29.5.1990
which is contained in Annexure-A to the show cause filed by the opposite party no. 2
and Annexure A/3 to the show cause filed by opposite party no. 3: From a perusal
whereof it appears that therein the following note was given:—
“(1) Prov. @ Rs. 273.60 w.e.f. 1.9.80 to 31.8.82 and thereafter Rs. 304/- to till the
date of payments to be adjusted.
(2) A sum of Rs. 89522.06 may also be recovered from his P.P.O.
(3) Excess amount of D.C.R.G. of Rs. 804.04 may also be adjusted from his P.P.O.”
 11. In a supplementary show cause filed by the opposite party no. 3 (Inspector
General, Prisons Bihar) it was contended that in the Pension Payment Order, the
Accountant General has directed to recover a sum of Rs. 89522.06 ps. It was further
submitted that the petitioner had managed to get the service records misplaced and
considerable time had been consumed in searching and reconstructing the same, as a
result whereof a delay in finalising the pension of the petitioner was caused.
 12. It was further contended that the accounts of the District Jail was audited and by
a letter dated 16.12.1978 issued by the Controller of Accounts, Finance (Audit)
Department, a case of misappropriation for a sum of Rs. 84077.06 ps. against the
petitioner was recorded.

    13. Allegedly copies of those reports were sent to the petitioner on 8.3.1982 by the
Superintendent District Jail, Dhanbad and he was asked to explain the matter, but
the petitioner did not submit any explanation. It was further alleged that similarly the
records of the District Jail, Daltonganj had also been audited and misappropriation of
a sum of Rs. 15143/- by the petitioner was recorded in respect whereof also the
petitioner was asked to explain by the Superintendent, District Jail, Daltonganj by his
letters dated 13.8.82, but the said letter has not been replied to by the petitioner. The
Superintendent allegedly by his letter dated 26.10.1983 reported the matter to the
Department stating that as the petitioner had neither been coming in the office of the
Superintendent nor submitting any explanation, so the ‘discrepent amount also
stands for recovery from the petitioner’.
 14. According to the opposite party no. 3, therefore, in such a situation, there was no
other option but to get the misappropriated amount adjusted from the amount of
pension and gratuity of the petitioner.
 15. The petitioner has, inter alia, contended in reply filed to the aforementioned show
cause that the direction of the Department to the Accountant General to deduct a sum
of Rs. 89522.06 ps. from pension of the petitioner was illegal. It was further alleged
that the Service Book of the petitioner was with the Jailor or Assistant Jailor in-charge
of the Establishment in their safe custody and only with a view to harass the
petitioner wrong facts have been stated.
 16. The petitioner in his reply further stated as follows:—
“That it is stated and submitted that so far parargraph 8 is concerned that is not
correct and the same is denied. At that time petitioner was posted at Daltonganj
Jail and if any alleged letter sent in the office of Superintendent Daltonganj Jail for
that petitioner is not at all responsible as petitioner was never relieved between
these period by the Jail Superintendent Palamau to defame himself regarding the
statement of paragraph 8 and as such so far audit report is concerned petitioner is
not at all responsible as petitioner did not get opportunity to meet the audit
objection and without initiating any departmental proceeding respondent wants to
deduct the amount which is highly illegal, so petitioner humbly sumits that
paragraph 8 is concocted and as such it has got no leg to stand at this stage.
11. That it is stated and submitted that so far paragraph 9 of the show cause is
concerned that is wrong petitioner has never got opportunity to meet the audit
objection as stated by the respondent in paragraph 9 of the show cause, and
petitioner was never asked any explanation so far paragraph 9 of the show cause
filled by opposite party no. 3 is false and that is not at all relevant for
consideration.
12. That it is stated and submitted that from the show cause, which has been filed
by the opposite party, it is clear that no departmental proceeding has been initiated
by the concerned respondents and arbitrary respondents want to deduct Rs.
89322.06 from the pension of the petitioner for which respondent has got no
authority under the law.”
 17. It has further been contended that as no departmental proceeding was initiated
as against the petitioner the question of direction for any recovery of any amount from
the pension of the petitioner does not arise.
 18. In his show cause, the Accountant General has submitted that there had been no
wilful disobedience of this Court's order on his part inasmuch as pension Payment
Order was issued on 29.5.1990 immediately upon receipt of the letter from the
Superintendent Jail dated

   12th May, 1990. It has been contended that a sum of Rs. 89522.06 ps. was directed
to be deducted from the amount of pension of the petitioner as per the request of the
Superintendent of Jail, Daltonganj.
 19. Mr. B.K. Dubey learned counsel appearing for the petitioner raised a short
contention in support of this case. Learned counsel submitted that before this Court
in C.W.J.C. 2163 on 89989 (R), the contemner opposite parties never raised any
question that the petitioner is guilty of defalcating any amount as alleged by the
contemner-opposite party nos. 2 and 3. Learned counsel submitted that assuming
that a charge of defalcation as against the petitioner was pending, no direction to
deduct the said amount could have been issued in absence of any proceedings drawn
up as against him in terms of Rule 43(b) of the Bihar Pension Rules.
 20. Learned counsel in this connection has relied upon a decision of this Court in Dr.
Jyotinder Sahay v. The State of Bihar reported in 1991 (1) PLJR 637.
 21. Mr. Narayan Roy learned Government Advocate appearing for contemner opposite
party nos. 2, 3 and 4, on the other hand submitted that the question as to whether
the direction of the opposite party to deduct a sum of Rs. 85522.06 was legal or not
cannot be determined in this application in respect whereof the petitioner may file a
separate writ application. According to the learned counsel, the jurisdiction of this
Court is a limited one and is confined to the question of determining as to whether
there has been a wilful violation of the lawful order passed by this Court or not and
while exercising such a jurisdiction, this Court cannot issue any other direction which
may fall for consideration in an appropriate proceeding under Article 226 of the
Constitution of India if such a petition is filed by the petitioner.
 22. It is true that jurisdiction of this Court in terms of the provisions of the
Conteempt of Court's Act, 1971 is to find out as to whether there had been a wilful
violation of this Court's order by the contemner opposite party or not. But, in my
opinion, in a given situation, this Court is not precluded in passing an appropriate
order in the interest of justice.
 23. In R.M. Ramani v. The State of Himachal Pradesh reported in AIR 1991 SC 1171,
the Supreme Court held that technically there may be no case for punishment for
contempt, but it observed:
“If a specific direction is necessary, we issue it here and now.”
 24. The Supreme Court in that case, thereafter, gave direction making it clear that
the petitioner of that case was entitled to monetary benefits consequent upon his
promotion to be given on a notional basis.
 25. From the decision of the Supreme Court in Ramani's case aforementioned, it is
clear that in a given case, the Court may issue appropriate direction if it becomes
necessary in the interest of justice.
 26. The Supreme Court in Sita Sam Sahu v. Smt. Lalpari Devi reported in 1991 (2)
PLJR 44 (SC) was considering a case where an eviction order was stayed by the
Supreme Court, but allegedly the respondent demolished the premises. In that case,
the demolition was sought to be justified by the contemner-opposite parties on the
basis of an alleged direction to the effect by the Darbhanga Regional Development
Authority. It was observed:—

   “We take a lenient view of the matter, but not without directions. We direct that the
respondents shall reconstruct the portion of the building which is to be given to the
petitioner within six months from today and he shall be reinducted into the premises
immediately thereafter. The petitioner shall be reinducted as a tenant not for three
years as stated by Panchayat but just like any other tenant without term as to period.
The petitioner shall not be asked to pay enhanced rent or prevailing rent for the new
premises but the old rent only. The petitioner will be at liberty to mention if there is
any difficulty.”
 27. It is, therefore, evident that in that case also, the Supreme Court had issued
directions in the interest of justice although it did not punish the contemner-opposite
party.
 28. From the facts as mentioned hereinbefore, it is evident that although grave
charges were made as against the petitioner, no departmental proceeding was initiated
as against him while he was in service, nor any proceedings as contemplated under
the provisions of the Bihar Pension Rules has been initiated.
 29. Rule 43 of the Bihar Pension Rules read as follows:—
“43(a) Future good conduct is an implied condition of every grant of a pension. The
Provincial Government reserve to themselves the right of withholding or
withdrawing a pension or any part of it, if the pensioner is convicted of serious
crime or be guilty of grave misconduct. The decision of the Provincial Government
on any question of withholding or withdrawing the whole or any part of a pension
under this rule, shall be final and conclusive.
(b) The State Government further reserve to themselves the right of withholding or
withdrawing a pension or any part of it, whether permanently or for a specified
period, and the right of ordering the recovery from a pension of the whole or part of
any pecuniary loss caused to Government if the pensioner is found in departmental
or judicial proceeding to have been guilty of grave misconduct; or to have caused
pecuniary loss to Government by misconduct or negligence, during his service
including service rendered on re-employment after retirement:
Provided that—
(a) such departmental proceedings, if not instituted while the Government
servant was on duty either before retirement or during re-employment.
(i) shall not be instituted save with the sanction of the State Government.
(ii) shall be in respect of an event which took place not more than four years
before the institution of such proceedings; and
(iii) shall be conducted by such authority and at such place or places as the
State Government may direct and in accordance with the procedure
 applicable to proceedings on which an order of dismissal from service
may be made;
(b) judicial proceedings, if not instituted while the Government servant was on
duty either before retirement or during reemployment, shall have been
instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar
Public Service Commission, shall be consulted before final orders are
passed.”
 30. From a bare perusal of the aforementioned Rules, it is evident that an order for
withholding or withdrawing the pension or any part of it, whether permanently or for a
specified period, can be passed only if the conditions precedent therefor are fulfilled.
 31. The said conditions are mentioned in proviso appended to clause (b) of Rule 43 of
the Bihar Pension Rules.
 32. In Union of India v. Wing Commander R.R. Hingorani reported in (1987) 1
Supreme Court Cases 551, the Supreme Court held that in view of the provisions of
section 11 of the Pension Act, 1871 no attachment, seizure or

   
sequestration can be made in respect of a pension or money due or to become due on
account of any such pension.
 33. In that view of the matter, there cannot be any doubt that no order of deduction
could have been issued by the respondents from the amount of pension and gratuity
payable to a retired employee, for recovery of any such amount, recourse may be had
to the provisions of Rule 43 of the Bihar Pension Rules or file a suit for recovery
thereof if the same is permissible in law.
 34. This aspect of the matter has been fully considered by a Division Bench
in Thakur Alakh Niranjan Singh v. State of Bihar in C.W.J.C. No. 2248 of 1988
disposed of on 9.12.1988. In that case it was held:—
“Plea in the counter affidavit is to the effect that gratuity is paid for rendering
satisfactory and good service to the employer, that is to say, the Government of the
State. We find that the State by instituting a civil action for realisation of the said
amount of Rs. 20000/- against the petitioner, in the event of a decree in its hand
also, could not attach or withhold the claim of gratuity in view of the provisions in
section 60 of the Code of Civil Procedure. That goes to show that withholding of
gratuity which is the incident of the retirement of a Government servant, is without
any legal authority. The District Magistrate was not vested with any such
jurisdiction to make order to withhold payment of gratuity to the petitioner.”
 35. In Dr. Jyotindra Sahay v. State of Bihar reported in 1991 (1) PLJR 637, a learned
single Judge of this Court took into consideration a resolution of the State of Bihar
being no. 3014F dated 31.7.1980; the relevant portion whereof reads as follows;
“If till the date of retirement of a Government servant any kind of departmental
enquiry, criminal case, judicial enquiry, etc. have not been started against the
Government servant then in that situation the pension granting authority shall
have no power to stop the pension in any circumstance whatsoever. It further
provides that rule 43 of the Bihar Pension Rules is a statutory rule and, therefore,
any action in contravention of the same by different department to stop pension by
 adopting different proceedings as also the necessity of obtaining integrity certificate
from Vigilance Department would stand automatically revoked.”
 36. Upon consideration thereof, as also Rule 43 of the Bihar Pension Rules, it was
held:—
“The admitted position is that on the date of retirement charges against the
pensioner were never issued to him and he had not been placed under suspension
from an earlier date. Therefore, there was no departmental proceeding instituted
against the petitioner and there was no judicial proceeding against him. In this
view, the State Government had no right of withholding or withdrawing the pension
or any part of it. The petitioners case is fully covered under para 7 (kha) of the
aforesaid Finance Department's Resolution issued on the 31st July 1980 and it
has to be held that the pension granting authority had no power to stop the
pension and gratuity of the petitioner.”
 37. In D.V. Kapoor v. Union of India reported in AIR 1990 S.C. 1923, the Supreme
Court was considering the provisions of Rule 9 of the Civil Service Pension Rules 1972
which is in pari-mataria with Rule 43 of the Bihar Pension Rules. The Supreme Court
upon consideration of its earlier decision in D.S. Nakara v. Union of India reported in
AIR 1983 SC 130 held:—
“Rule 9 of the rules empowers the President only to withhold or withdraw pension
permanently or for a specified period in whole or in part or to order recovery of
pecuniary loss caused to the State in whole or in part subject to minimum. The
employee's right to pension is a statutory right. The measure of deprivation

  
therefore must be correlative to or commensurate with the gravity of the grave
misconduct or irregularity as it offends the right to assistance at the evening of his
life as assured under Art. 41 of the Constitution. The impugned order discloses
that the President withheld on permanent basis the payment of gratuity in addition
to pension. The right to gratuity is also a statutory right. The appellant was not
charged with nor was given an opportunity that his gratuity would be withheld as a
measure of punishment. No provision of law has been brought to our notice under
which the President is empowered to withhold gratuity as well, after his retirement
as a measure of punishment. Therefore, the order to withhold the gratuity as a
measure of penalty is obviously illegal and is devoid of jurisdiction.”
 38. From the decisions of the Supreme Court of India as also of this Court, as
referred to hereinbefore, it is evident that an order of withholding the amount of
pension has been passed without taking recourse to the provisions of Rule 43(b) of the
Bihar Pension Rules.
 39. This Court directing the contemners opposite parties to finalise the case of the
petitioner so that the authority slip for the payment of arrears of pension as well as
the pension which he is entitled to receive be issued meant that such authority slip
should be issued in accordance with law.
 40. As in law, the contemners-opposite parties were not entitled to withhold the
amount of pension or direct adjustment of any amount therefrom this Court following
the decision of the Supreme Court in Ramani's case (supra) is entitled to direct
payment of full pension to the petitioner without deducting the said amount or Rs.
89522.06 ps.
 41. It is therefore, directed that the contemners-opposite parties shall forthwith issue
another Pension Payment Order in favour of the petitioner without adjusting the
aforementioned sum of Rs. 89522.06 ps. It is, however, made clear that it would be
open to the authority concerned of the State of Bihar to initiate such proceedings as
against the petitioner as it may be advised for the purpose of recovery of the
aforementioned amount or initiate any other proceeding which is permissible in law.
 42. This application is disposed of with the aforementioned direction. In the facts and
circumstances of this case, the petitioner is also entitled to cost of this proceeding.
 43. R.N. SAHAY, J.:— I agree.

4. Supreme Court of India, (1991) 2 PLJR 44

Sita Ram Sahu vs Smt. Lalpari Devi & Others on 21 September, 1990
Equivalent citations: AIR 1991 SC 1054, 1991 Supp (2) SCC 711
Bench: K J Shetty, N Ojha, R Sahai

JUDGMENT

1. The petitioner was in occupation of a premises which was the subject matter of
eviction proceedings. The eviction order was stayed by this Court, but not
withstanding the stay order, the respondents have demolished the premises. So
contempt proceedings have been initiated against them. They have filed a counter
stating that in view of the earthquake, the building became unsafe; that they were
ordered to demolish the same by the local authority and so they were compelled to
demolish the building. In other words, the demolition is sought to be justified by the
letter dated 13-9-1988 issued by the Darbhanga Regional Development Authority.

2. We have perused the aforesaid letter. It is stated therein that as a result of the
earthquake occurred on 21-8-88, the premises occupied by the petitioner has been
damaged and after technical survey it has been found that it may cause loss to the
lives and property of the general public. That notice was under Section 14 of the Bihar
Regional Development Authority Act, 1974, directing the respondents to demolish the
building within 3 days therefrom. In the rejoinder filed by the petitioner, it has been
averred that the order issued by the Darbhanga Regional Develop ment Authority was
post dated and it was not there on the date on which the demolition took place. We do
not want to enter into this controversy since thereafter there was a Panchayat of the
local people in which it was decided as follows, insofar as the petitioner is concerned :

We, the Panchas have decided that as early as possible, after getting the house
completed the last kothri towards east of the Southern block, keeping in view the costs
and expenses of the construction the same be let out to executant No. 6 being old
tenant on a reasonable rent for 3 years on his executing a rent deed.

3. We are, however, of the opinion that the respondents have committed contempt.
The allegations as to justification for demolition are not beyond the pale of
controversy. But we do not want to take a serious view of the matter in view of the
Panchayat direction to reconstruct the building for the use of the petitioner. We take a
lenient view of the matter, but not without directions. We direct that the respondents
shall re-construct the portion of the building which is to be given to the petitioner
within six months from today and he shall be reinducted into the premises
immediately thereafter. The petitioner shall be reinducted as a tenant not for three
years as stated by Panchayat, but just like any other tenant without terms as to
period. The petitioner shall not be asked to pay enhanced rent or prevailing rent for
the new premises but the old rent only. The petitioner will be at liberty to mention if
there is any difficulty.

4. The proceedings are accordingly dropped. In view of the order made in the
Contempt Petition, Civil Appeal No. 2663/90 has become infructuous and is
accordingly disposed of with no order as to costs.