HOSHIAR SINGH v. GURBACHAN SINGH

Appeal by special leave from the judgment and order dated August 18, 1958, . of the Punjab High Court in Criminal Original No. 20 of 1958. Gopal Singh and P. D. Men(ff!, appellants. R. S. Gheba, for respondent No. 1.

#1962. February 8. The Judgment of Das and Subba Rao, JJ., was delivered by Das, J., Dayal, J. delivered a sepa.rate judgment. S. K DAS, J.-'This is an appeal by special leave from the judgment and order of the Punjab High Court dated August 18, 1958 by which the said Court found the two appellants guilty of contempt of court and instead of committing them for such con tempt, administered a warning to them and directed them to pay Rs. 50/- each as costs of the respondent. Gurbachan Singh. The two appellants before us bear the same name. One of them was the Sub Divisional Officer, Sirsa, District Hisear and the\other Naib Tehsildar cum:Managing Officer, Sirs<i, same district at the relevant time. In this judgment we shall call the Sub Divisional Officer as the first appellant and the Naib Tehsildar as the second appellant. The facts alleged against the appellants were these.. One Budh Singh, a displaced person, was allotted some land in village Jagmalera, Tehsil Sirsa, District Hissar. The land allotted• to Budh Singh was, it was stated by the appellants, forcibly occupied by the respondent Gurbachan Singh. The respondent :was not a legitimate allottee and the appellants, who were concerned in their official capaoity with the allotment and management of land for displaced persons, were naturally anxious to oust the respon dent and deliver possession to Budh Singh of the land allott.ed to him. On May 9, 1958 appellant No. l made an order that Budh Singh and other allottees like him would be given possession of the land, allotted to them. The date fixed for such 1961 Hoa/iiar Singh "· Gurbac.~an Singh Das J 130 SUPREME COURT REPORT5 [1962) SUPP. the aDtion delivery of possession was l\fay 20, I !J58. On l\fay 16, 1958 Gurhaehan Singh and a. number of other persons who were similarlv threatened with <lis posHeesion filPd petitions to· the High Court under Art. 226 of the Constitution challenging the l<'gality threatened against them. These learned Chief petitions were put up befor0 the Justice on that very day, namely, !\fay Hi, l 9i:S, when he issued an order staying delivery ofpclHsession till May l!l, I 9;)8, when the petitions were to come up for admission before a Division Bench, On May 19, 1958, the Division Rench extended the operation of the stay order until May 2:{, 1958. In tho- High Court the appellants did not dispute that the first order staying dclivNy of possession up to llfay l!J, I !JfiS was communicated to them on May l!J, 1958 on which date the notice from the High Court reached Sirsa._ It appears that a notice of the second order extending the st11y of delivery possc~sion till llfay 23, 1958, was not officially communicated to the appellants till llfay 21, l!l:'iS. The allegation on bohalf of the respondent was that on May 20, I!Jii8, which was the rdevant date, the two a·ppellants wi>re informed by certain in terested personR, t-o whom we shall prt•scnt.]y rofor, that a.n exten~ion of the stay ordn up to :\lay 2:J, I!J;i8, had been granted by the Higli Court. In spite of thiR information, however, the second appellant, in consultation with am] undN instruc tion, of the first. nppcllant, formally dispossess<'d the respondent- and handed ovn possession of the land t.o Rudh Singh. In these circumstances the allegation on lwhalf of tb" respondent wa• that the two appellants hnd committed cont<>mpt of court hv di"ob<'ying the orckr of tho High Court stnying deli~cry of possession ~ i II Ma:v 23, 19:'58. The respondent made an applica~1on to the High Cnurt for taking Rnitahle action ag, rn1st the two appellants. Thi" application was mad" on llfay 27, 1958. On this application the High Court • 1962 •• Horhiar S in:h Gubrachan Sing~ DasJ. ' 3S.C.R. SUPREME COURT REPORTS 131 issued notice and after hearing the parties, Falshaw, J. (as he then was) who dealt with the application came to the conclusion that the two appellants were aware of the order of the High Court extend- . ing the operation of the stay order and yet they disobeyed the said order by dispossessing the res pondent and handing over possession to Budh Singh. He held them guilty of contempt of court, but at the same time expressed the opinion that the appellants honestly believed that they were not to hold their hands in the absence of an official communication of the High Court's order extending the operation of the stay order. In this view of the matter, the learned .Judge instead of committing the two appellants for contempt of court merely administered a warning to them and directed them to pay the costs of the respondent. On behalf of the appellants several points have been urged in support of their contention that they were not guilty of contempt of court. Firstly, it has be1m contended that on the materials on the record, the High Court was wrong in proceeding on the footing that the two appellants were informed by the interested parties that an extension of the stay order up to May 23, 1958, had been granted in the case of the respondent. It has been argued before us th'1t on May 20, 1958, the appellants that the stav order had been did not know extended till May 23, 1958, iri ·the writ petition filed on behalf of the respondent Gurbachan Singh, though in another case of Didar Sin1th relating to allotted appellants were informed by an ad vacate that the stay order had been extended till May 23, 1958. It has been contended before us that in the a,bsence of positive evidence fixing the two appellants with knowledge of the extension of the stay order in the particular case of the respondent, the High Court was wrong in finding that the two appellants had wilfully disobeyed the order of the High Court. the same village, 196t Hoshiar Singh v. Gurbochan Singh IJa1.J. 132 SUPREME COURT REPORTS [l!J62] SUPP. In order to appreciate this argument urged on behalf of the appellants it is necefisary to state some more facts. In para. 17 of the applir.'1tion which the respondent made to the High Court for taking neceliSary action against the appellants for alleged contempt of court, it was stated that at f).30 a.m. on May 20, 19:;,;, two persons named Bir Singh and A vtar Singh WPnt personally to the house of appellant No. 2 and told him that the stay order had been extcn<le<l by the High Court and that they had b<lcn informed by the advocate on telephone. This allegation was supported by an affidavit made respondent. Appella.nt l'\o. 2, on behalf of the however, denied this allegation in hiR counter In paraH. 18, 19 an<l 20 of his petition affidavit.. the respondent Htakd that at about 7-40 a.m. on Ma.v ~O. I O.i8 a written application was filed bcforo appellant No. :! in which it was stated that the High Court harl. stayed delivny of possession till }fay 2:l, l!J58; this application was drafted by an advo cate named Ganga Bishan, who acted on behalf of Didar Singh. The applieation was presented to appellant !\o. 2 in preserrno of two other pcraons named ~Ia.stan Singh and Teja Singh. Thereafter, an aflida.vit wa.R also made on behalf of Didar Sinl?h. This affidavit was presented to appellant Xo. 2 at about 8-1 ii a.m. Thereafter, appellant 'joep' to appellant No. l in order No. 2 went in a. to consult latter. Appelhtnt No. 2 Raw room. appellant ~o. I Ho e1tme out within a. few minutes, and Gangit BiRhan affidavit Rhould presenled to appellant No. I. Thereupon, another ·application was written 011 behalf of Didar ~ingh and this was presented to appellant No. l supported by the affidavit already made on behalf of Didar Singh. Appellant ~o. I did not, how t·ver, pass n~ccssary orders on tho application till about 10 a.m., when he mado an endorsement to the effect that the Tchsil<lar, Sirsa, should take latter's court 1962 Hoshiar Singh. v. Gwbachan Singh . Das J. 3 S.C.R. SUPREME COURT REPORTS 133 necessary action. When the application was taken to the Tehsildar, he noted on it that the Naib Tehsildar, namely, appellant No. 2 had already left for the village to deliver possession. Thereupon Avtar Singh, Bir Singh, Didar Singh and Mastan Singh went to village Jagmalera where the lands lay and again met appellant No. 2. The applica tion made to appellant No. 1 with his orders there It was alleged on was shown to appellant No. 2. that appellant No. 2 was also shown the wording of the stay order as received by the party through a special messenger. Appellant No. 2, however, replied that he had been ordered to dispossess the respondent and insisted on his proceeding with the dispossession. In his counter-affidavit appellant No. 2 admit- . ted .that on May 20, 1958 an application was pre sented to him by Didar Singh at about 7-40 a.m. He further admitted that an affidavit in support of the application was also presented to him. Appellant No. 2 then made the following signifi cant statements. "On receipt of these documents I told Shri Didar Singh that I could not act on the application and suspend the proceedings for dispossession unless I was shown the order of stay alleged to have been made by the High Court." Appellant No. 2 explained his conduct by referring to the background of quarrel and enmity between the parties which had led to several criminal cases between them. Appellant No. 2 said in his counter affidavit that with this background of enmity he felt that though Didar Singh was an intereste Ii party, it would not be safe to accept the statements of facts contained in the application or affidavit made on behalf of Didar Singh at their face value. Appellant No. 2 also admitted that he consulted appellant No. 1, who also advised that it would not 1962 lloshiar Singh V, ·, urbach·;11 Sinth DasJ. 134 SUPREME COUltT REPORTS [1962) SUPP. be safe to aet on the statements made in the appli cation or affidnvit. Appellant ~o. 2 also admitted that Ganga Bishan Advocate, presented the appli cations to him. He al8o admitted that the appli· cation which was filed by Ganga Bishan to appel lant Xo. I was received back with the orders of appellant No. I thereon at a.bout 6 p.m. on :\Ia.y 20, l\158, while appellant No. 2 was returning from the village. Appellant No. ~denied that he was shown the wording of the stay order of the High Court. He admitted, however, that he was asked uot to proce ed with delivery of possession on account of the High Court. Appellant No. I. also made similar statements in his counter-affidavit. He admitted 20, 1958 that at an a.pplillation iiffidavit wus ma.do to him on behalf of Didar Singh imd he then endorsed to the Tehsilda.r for necessary action. the application about 9 a. m. oupported Unfortunately, the applications which were made to appell!Lnts I and 2 have not been filed and we do not know tho precise eontents of the two applications. We have, howt:>ver, afTidavits made on behalf of Dida.r Singh. Teja Singh, Ganga Bishan and Avta.r Singh. The learned Advocate for the parties have taken.us through those affidavits. The a.Jgument presented on behalf of the appellants is that though thoy knew of thc extension of the stay order in Didar Singh's case by reason of the application and affidavit filed on his behalf before thom, they did not know that a similar extensiou of the stay order had been granted by the High Court in the other ca; ies as well. This argument has been pressed before us with some vehemence and we proceed now to consider it. It is worthy of note that such an argument which goes to the very root of tho matter was not presented to the High Court. It is not disputed that "disobedience of a. judgmcn t or order requiring a porson to do tho payment of money, or to a.ny a.ct other than t962 Hoshiar Singh v. Gurbachan Singh Dat J, 3 S.C.R. SUPREME COUH,'f REPORTS 135 they did abstain from doing anything i~ a cont.empt of court punishable by attachment or committ, al" ; but disobedience, it is argued, if it is to be punishable as a contempt, must be wilful ; in other words, the party against whom a proceeding by way of con tempt is taken must know t:ii.e order before it can be said that he has disobeyed it. It is somewhat surprising the stand of the appellants order made by the High Court on May 19, 1958, in the respondent's case, such a point was not urged in the High Court. Falshaw, J., (as he then was) said in his judgement that it was not in dispute before him that 011 the morning of May 20, 1958, both the appellants were informed that an extension of the stay order upto May, 23, 1958, had been granted by the High Court. This state ment of the learned Judge must have reference to tho case of the respondent which he was considering. Apart, however, from the point that such an argu ment on behalf of the two appellants was not pre sented in the High Court, it appears to us that on the affidavits made available to the Court, the only reasonable infer~nce is that though the application and the affidavit were made on behalf of Didar Singh, both the appellants were informed that the High Court had granted an extension of the stay order in all the cases. It is admitted on both 8ides that there were three cases in which deli very of possession had to be given of lands in village Jag malera. It is also not seriously in dispute that on May 9, 1958, appellant No. 1 made an order direct ing that delivery of possession should be given to the allottees of their respective areas and persons in unauthorised occupation would be dispossessed. On May 16, 1958 three writ petitions were made which were placed before the Chief Justice who made an interim order of stay lasting for three days. On May 19, 1958 the writ petitions were placed be fore a Division Bench for admission and that Bench HoJhiar Singh Ourbachan Singh 1961 •• j),,, J. 136 SUPREME COURT REPOI~TS (1962J SUPP. extended the stay order till May !!3, 1958. These are the admitted facts. It is also admitted that the respondent Gurbachan Singh did not appear before the appellants on May 20, 19ii8, a fact which has been emphasised by the learned Advocate for the appellants. Let us, however, seo what the affidavits filed in the case show. Teja Singh said in his affiJavit that Harbans Singh Gujral, who was the advocate acting on behalf of the petitioners telephone on in all the cases, told him on the May 19, 1958 that the High Court had extended the stay order in all the cases upto May 23, 1958. Teja ~ingh iiccompa.nied Didar Singh, Ganga Biahan, Mastan Singh and others to the village on .illay 20, HJ68, and he said that au application was mado to appelle.nt No. 2 in which it was stated that the stay order had been extonded by the High Court. The affidavit of Ganga llishan is very eignificant in this connection. He said that on May ~O, 1958, ho drafted the application which was later ma.de to appellant No. 2. Ganga Bishan said that it was stated to appellant No. 2 th:it the stay ordor made by the High Court related to all tho cases of village Ja.gmalera. He further said that appellant ~o. 2 was informed that stay of delivery of possession had been extended by the High Court upto May 23, 1958 ; appellant No. 2, ho, vever, wanted to be shown the order of the lI igh Court ; thereupon an affidavit of Didar Singh to the effect that tho stay order had been extended by the High Court upto :May 23, 1958, was filed. Ganga Bishan also said that appellant No. I was also informed that the High Court had i.xtended the stay order upto May 23, 1958. The affidavits made on behalf of Didar Singh and A vtar Singh were also to the same effect. ·In view of theso affidavits we find • it very difficult to hold that the appellants knew of the case but stay order only in Didar Singh's the other did not know of the stay order cases. is worthy of note It - • 1962 lioshiar Sinqh •• Gurbacf1an Singh Das J. 3 S.C.R. SUPREME COURT REPORTS 137 in the counter-affidavits filed on behalf of the appel lants the Doint that was made on their behalf was that they. considered it unsafe to rely on the applica tions and affidavits made, in view ot the background of enmity between the parties. The two appellants did not say in their counter-affidavits that they came to know of the stay order only in one case and not in the others . .:Such a point does not appear to have been specifiqally made on behalf of the appellants at any stage of the proceedings in the High Court. Therefore, we have come to the conclusion that the appellants knew of the order of the High Court in all the cases and it is not correct to say that the appellants knew of the order of the High Court only in one case and not in the others. We find it to believe that Ganga Bishan would not difficult tell the appellants that the High Court had extend ed the stay order in all the three cases of the village Ganga Bishan says in his affidavit that he did tell the appellants of the stay order in all the three cases and there was no coun ter-affidavits on behalf of the appellants travers ing the statements made by Ganga Bishan. We must, therefore, overrule the first point urged on behalf of the appellants. the extension of learned Advocate The second point which has been urged on behalf of the appellants is that in the absence of an official communication of the order, they were justified in not acting on what they came to know from interested parties and their advocate. for the appellants has The submitted that in a case of this nature, before wilful disobedience of the order of the High Court could . be was legally the order should be officially communicated or served on the appel lants and in the absence of such communioation or service, the proceeding for contempt must fail. We are unable to accept this contention as correct. against the appellants, essential that imputed 1962 H oshiar Sfr1vh v. Owbachan Singh Das J, 138 SUPREl\IE COURT HEPORTS [1962] SUPP. Tho legal position ha.~ been very succinctly put by Oswald: . "The judgment or order should be served on the party personally, except in the follow (I) prohibitive orders, the drawing ing cases: up of which ii! not completed; (2) orders em bodying an undertaking to do an act by a named day; (3) orders to answer interro gatories or for discovery or inspection of documents: (4) where an order for substituted service has been ma.de; (ii) where the res· pondent has evaded service of the order ...... In order to justify committal for breach of a prohibitive order it is not. necessary that the order should havo been served upon the party against whom it has been granted, if it bo proved that he had notice of the order aliunde, as hy telegram, or rtewspaper report, or otherwise, and knew that it was intended to be enforced, or if ho consented to the order, or if he was present iii Court the order was pronounced, or when the motion was made, although he loft before tho order was pronounced." till May 23, 1958, (Oswald's Contempt of Court, 3rd Edn. pp. 199 and in the present case was a :!03). The order order and prohibitory appellants prohibited the High Court had delivery of possession was undoubtedly the duty of the appellants to carry out that order. Wo <lo not think that the appellants can take up the plea that as the order had not been officially communicated them, they were a.t liberty to ignore it. The appel lants were officers whoso duty it was to up hold the law and if they 'knew that a valid order had been ma.de by the High Court staying delivery of possession, they disobeyed that order at their peril. There may be circumstances where officials - 1962 Ho$hiar Singh Y. G-urbachan Singh Das ;T. 3 s.c.R. SUPREME COURT REPORTS 139 entrusted with the duty of carrying out a legal order may have valid reasons to doubt the authen ticity of the order conveyed to them by interested parties and in those circumstances it may be said that there was no wilful disobedience of the order made. We do not, however, think that the appel· !ants in the present case had any real justification for doubting the authenticity of the order made by the High Court, even though the order had not been officially communicated to them. The appellants knew that an interim order of stay had been made by the High Court on May 16, 1958; that order was in force till May 19, 1958. There after the appellants were informed not merely by interested parties but by an Advocate, who was an officer of the Court, that the High Court had extended the stay order npto May 23, 1958. A formal application supported by an affidavit was made to that effect. Despite the reason alleged by the appellants that there was a background of enmity between the parties, we do not think that the appellants have given any good reasons on which they were entitled to doubt the authenticity of the order communicated to them by Ganga Bishan, an Advocate acting on behalf of Didar Singh. It is worthy of note that the appellants did not deliver possession in Didar Singh's case. They were content with delivering possession the case of the respondent only. Taking considerations all these circumstances we are satisfi ed that there was in this case in the eye of the law, a wilful disobedience of the order of the High Court staying delivery of possession, even though the appellants might have wrongly but honestly believed that it was not safe to act on the infor mation given to them by Ganga Bishan. The learned Advocate for the appellants has referred us to a num her of decisions, English to mandatory orders, or relating Indian, 191iZ .. Hoshia• 8in:h 111rhf'fcha11 Si11:h DaJ J. 140 SUPREi\IE COGH.T REPORTS [1962] SUPP. In re: Holt ' it was held require under In those docisions orders for the payment of money, 'or orders the rules of the Court tu be served in particular manner. lnfm11)( 1); Ex-parte Linvley ('); In re: Tuck (wi ilfurch v. £oosemore ("); Dwijendra Krishan Datta v. Surendra Nath :\'ay Choudhury ('): and Gordon v. Gordon('). it was necessary to havo the order properly served before charging a person with disobcrlioncc of it. We do nut think th&t those decisions are in point, because we are dealing with a prohibitory order and in tho matter of a prohibitory order it is well-settled that it is not neces.-iary that the order should have been served upon the piuty against it has been granted in order to justify committal for breach of such an order, provided it is proYed that the person complained against had notice of the order aliunde. The distinction between prohibitory orders and orders of an atlir ma.tive nature wus adverted to in N. Baksi v. 0. /(_ Ghosh(') and a largo number of decisions were referred to in support of the rule that in respect of a prohibitory order, service of the order was not essential for founding an action in contempt. We do not think that any useful purpose will be served by examining thoRe decisions over a.gain. We are content to adopt for tho purposes of this case the rule as succinctly put by Oswald and quoted earlier -in this judgment. Lastly, our attention has been drawn to tho the respondent in para. 22 statements made by of his petition to tho effect that though appellant No. 2 ma.de a report about delivery of possession in respect of the land of the respondent, no actual dispossession could be made because cotton · crop was standing on the land a.nd a. large number of pJJrsons had gathered there. The argument before us is that if, according to the respondent (1) (1879) 11 Ch. D. 168. (3) (1906! 1 Ch. b92. (5) (1946) 1 All B.R. Zo\6. (21 (1879) 13 Cb. D. 110. (4) A.1.R. 1927 Calculta 548. (6) A.1.R. 1957 Patna 528. 1962 •• Hoshiar Singlp Gurbachan 8 ing Dai J, 3 S.C.R. SUPREME COURT REPORTS 141 himself, no actual dispossession took place then this is not a fit case in which action for contempt should be taken against the appellants. It bas been submitted on behalf of the appellants that contempt proceedings are of an extraordinary nature and the Court should be reluctant exercise its extraordinary power if the action com plained of is of a slight or trifling nat11re and does not cause any substantial loss or prejudice to the complainant. It has been argued that if the respondent himself said that he ha.cl not been ac tually dispossessed, then there was no reason for proceeding against the appellants for contempt of court. Secondly, it is pointed out that the appel lants offered an apology in case the High Court held that they should have taken action on the information given to them by Ganga Bishan. As to the second submission, it is enough to point out that in a matter relatin~ to contempt of court, be both justification and apology. there cannot (See M. Y. Shareef v. The Hon'ble Judges of the High Court of Nagpu.r ( 1). As to the first sub mission we may draw attention. to the statements of appellant No. 2 in para. 21 of his affidavit in which he said that so far as the respondent's land was concerned, possession was delivered to B11dh Singh. This statement of appellant N"o. 2 clearly the two appellants took the very action which was prohibited by the High Court I !158. We are, there by its order dated ·May 19, fore, unable to accept the submission that there was no foundation for taking action against the appellants for contPmpt of court. This disposes of all the points urged -0n behalf of the appellants. As to the punishment imposed, the l(larned the appellants Judge took into consideration that wrongly but honestly might have believed thev were not bound 1 o hold their hands in the absence of an official communi~tlon of the order (ll [1955] l S.C.R. 757. 1962 Hoshiar S1'ngh V, Gurbachan Singh DasJ. Rathuhar Dayal,], 142 SUPREME COURT REPORTS [1962) SUPP. of the High Court. That belief a1forded no de fence to the chl\rge of contempt of court, bnt. was Jn our a consideration relevant to the sentf>nce. opinion, there are no ground~ for interference with the order of the High Court. 'l'he appC'al accordingly fails and is dismissed. RAOHQ!AR DAYA!., J.-I have had the pre vilcge of perusing thP ,Judgment of my learned brother S. K. Das, J., bnt regret. my inability to hold that tho appellants committed contempt of Court. I need not repeat the fact.I' set out in the majo rity judgment. No conviction for committing contempt of Court r.an be based on the finding of the High Court that the appellants delivered poeses~ion be lieving that they were not bound to hold their bands in the absenr.e of the official communication of the High Court's orckr. The finding mrans that they dPlivered po~SPesion not in defiance of the High Court's ordN, but bPcause they honestly thought. that in the absence of the official communication of the order, they could uot act on the supposition that the original stay ordn. whieh was to be effec tive up to !\fay rn, 1958, continued to he effective. If in their honest opinion no stay order existed at the time, their conduct cannot be said t<i amount to \\ ilful disobedience of the High Court's 01 der ex tending the st.ay order up to :\fay 23, 1958. No question of wilful disobedience can arise when the very existeneo of the <'rdcr is not believed. The question of obedience or disobediPnce arises only after the party knows of the order and if tho party docs not know the order, 110 such question can arise. The allegations in the petition by the first responcknr, filed in t.he High Court, did not make out that the appellants delivered po~session, tho 3 S.C.R. SUPREME COURT REPORTS 143 delivery of which had been stayed upto May 23, 1958, by the High Court by its order dated May l!J, 1958. TbiA is clear fro'll the statements in paragraphs 21 and 22 of the petition. They are: "21. However, when actually he attempt ed to start the work of dispossession, he found that a large number of people were collected at the spot and apprehending that the police force already taken to the spot might not be sufficient to cope up with the situation if some trouble arose, he withdrew from the spot.

#22. That although in the land possessed· 1962 Hoshit1r Sinrh v. Gurbachan Singh R.i:hubar Dayal J, -· the spot, by the petitioner in Jag Malera, cotton crop was standing in some of the fields and no proceedings for dispossession of the petitioner could be taken by respondent .No. 2 on account of the presence of a large number of respondent No. 2, persons at however, made som<' report later on that the petitioner had been actualy dispossessed of his lands and the same was given over to Budh In the other cases, Singh at however, he made a report that he could not deliver possession on account of the presence of a mob at the spot and that the police force with him being too small, was not sure to cope up with the situation." the spot. These paragraphs can only mean that appel lant No. 2 attempted to start the work of disposses sion, but did not proceed further, and withdrew from the spot iu view of an apprehension of breach ' of peace and that be made some report of a ficti tious kind to the effect that the petitioner had been actmclly dispossessed of his land and possession had been given over to Budh Singh at the spot. It was om phasized that actual possession could not have been delivered on account of the standing cotton crop. It follows that even on the statements 1962 Hoshiaf' Singh v, (;urba, han S£r.gh Rag}_ubar Da;al J. 144 SUPREME OOURT REPORTS [1962] SUPP. of the first respondent in his petition for action against the appellant~ for contempt of Court, there waR no assertion that they had disobeyed tho stay In order by <.lelivering possession to Budh Singh. the absence of such an assertion, no itction could have been taken or ought to have been taken against the appelbnta.1 Contempt procei>dings are criminal or quasi criminal procPedin11s. It is essential that the nccusa tion made against the opposite part.v by the peti- · tionPr for taking action against him should be preeiRe and Rhould dearly make ont that the oppositr partv had, by some specific act, committod contempt of Court. The conviction of the opposite party must rest on the facts nlh~ged and proved by. tho petitioner. A conviction mny also rest on the sole admisgion of the allPged contemner if that eRtnblishcR his commit.ting contempt of Court, but, in that <·ase, his admission should be taken aR a whole and not thnt its incriminating part be taken out of the contP:i:t. and mado the baRis for con viction. It is immaterial that appellant ~o. 2 st:tted in his reply that actual nosRPssion oft.ho land in the unnuthr; rised possession of thP first reRpondent was delivered to Budh Singh and that at the time no cotton crop waA Rtandin!!'. and that the respondent was adopting a contradictory position. The High Court did not give any finding on this question. Tt. simply ~aid in its judgment, d1w t-0 the misr<',ailing of the allegations in the petition. "fn spite of thiR fact it is n llegcd that in the village the ~aib Tehsildar formally dis posseRscd the present petitiouer and handed ovpr hiR Janel to one Bndh Singh .. .'' The respondent made no stritP.mcnt about the Naib Tehsil<lar formall.v dispo~scssing him and handing over thl' land to Bndh Singh. • 1962 Hoshiar Singh v. Gurbaehan Sim1h Raghuhar DaJal J. 3 S.C.R. SUPREME COURT REPORTS 145 A clear.cut the disputed fact finding on whether actual p'.lsiession h'!.d been delivered or not is not to be given in s11mm,1ry proceedings for con tempt of Court. If actual possession had been delivered to Budh Singh, there must have been some good reason for the respondent not to admit it in his peti tion and that can only be that in any future dispute where the question of possession of the respondent or of the Budh Singh be in question, the respondent be not confronted with his own admission in his petition . and affidavit accompanying it. ed that identical statements where made in para garaphs 21 and 22 of the affidavit. There might be some other reason for the respondent not to admit the delivery of possession, but it is clear thnt the respondent did not come to Court with clean hands and, in the circumstances, proceedings for contempt of Court on his application was wrong exercise of discretion. However, the mlj.in fact remains that no allegation was made in the petition that the respondents had delivered possession. 'It may be mention-· The appellant~ were not served, by the time · the delivery of possesion may be ~upposed to have taken place, with the order of the High Court extending the stay order up to May 23, 1958. The telegram sent by the counsel of Gurbachan Singh from Chandigarh, recached the first appellant, the Sub Divisional Offieer, at 1-30 p.m., on .May 10, 1958, and any order of his on it did not reach appellant No. 2 till 6 p.m., by which time, according . to him,, possession had been delivered. The formal stay order from the High Court reached much later. It may not be necessary to serve prohibitive order on the party against whom it is granted, but that party must have notice of the order before it can be expected to obey it can be committed for contempt of Court for disobeying it. This is what ~ ,. 1962 lfoshiar Singh v. Gut6cchan Sinyh Rathubar Do; al J. 146 SuPREME COURT REPORTS [1962) SUPP. o~wald states at pago 203 of his book on 'Contempt of Court', III Edition. He says: · "In order to justify committal for brrad1 of a pohibitivc order it lli not nccc~sary that tho order should have been 8Cl'P'cl upon the party against whom it has been granted, if it be proved that ho had notice of the order aliunde, kl! by tcfogram, or nnw8pap er report, or otherwiso, .... " It would appear from the later part of the observa tion that it was 8ufficient that the party coneenH·u · gets notice of the prohibitive order by any mc~ns, specially by tdegram or 11ews1nper report. This is however not what was held in tho cases referred to by Oswald in support of his statement. Xotic<> to the party concern.,<l, of the prohibitive order. in those cases was communieat.Cd by the Court through it.s regular procedure or by a Solicitor of the Court. In In re Bryant (1 ) the parties conc<~rned wern informed by the solicitor of the judgn1ent-debtor that the debtor h:id filed a liquidation petition in the London Bankrnptc:y Court and that applicat.ion would he made at the next 8itting of the Court to restrain further p1occcdings under the execution. The auctione:er cunccrncd received a telcirram fr<,111 Bryant's solicitors referring to the parties to t lw case and stating that injunction staying sale nlld further pro<~'cdings had been granted that morning and· that the order would be served as soon as possi. ble. The auctioneer, however, proceeded with th•.' sale. It was in tlwse circumstances th:i.t tbo part i<·s t lw concerned wtrc held order of the Court and to have committed its contempt. The ~olicitor was an officer of the Court. to have disobeyed This case i~ no authority for the propositiu 11 that information conveyed to the party concnrnc d (I) 1..R. (137G) 4 Ch. D. 93. 1962 Hosloiar Sirigh v. Gur6ocllon Sinth Rag/IU6ar Doyal J, 3S.C.R. SUPREME COURT REPORTS · 147 by telegram from a person who is not an officer of the Court would requisite notice . of the prohibitive order by the party con- cerned; amount · In Ex parte Langley, Ex parte Smith, In re Bishop (1) the facts were as follows. Bishop filed a liquidation petition in the London Bankruptcy Court on August 6, 1879. The same day the Court passed an order restraining until the 8th of September, further proceedings in several actions w hieh had been commenced against the debtor and, iriter alia, restraining the sheriff of Kent, his officers and servants, from taking any further proceedings in an action which had been brought against the debtor by Messrs. Wade and Thurston. The sheriff had fixed the sale of the attached furniture of the debtor on the 6th of August, having adjourned it from the 5th in order to afford an opportunity to the debtor to pay the debt. Smith was the sheriff's officer who was in charge of the sale. His assistant, Emmerson and Langle~y, an rmctioneer, were to carry out the sale. Emmerson had directions to, start the sale at 11 o'clock and not a moment later. Langley, however, postponed the same to 12 o'clock, on his own responsibility, clue to paucity of persons present. telegram from one Matthews, Langley received a the manager of the hotel in which the debtor was carrying on business as a licensed victualler, saying: . "Smith gone to Canterbury. You had better stop sale on your own account, as I know it is all right." The auctioneer was also informerl by the debtor's son and another person between 11 and 12 o'clock that the debtor would come down by the mid-day train from London with the money to pay the exe cution debt. The sale was again put off to 1 o'clock when it did start. After a few lots had been sold, Emmerson received a telegram purporting to bl) {I) L.R. (1979J 13;ca. D. l!O ,• 1962 HQl/iiar Sirith v, Gur6acl, lln Sin(1h _, -~ ,, ~ ' R•ghubor Da)'dl J, 148 SUPREME COUHT HEPORTS (1Vli2] SUPP. Irom Learyod & Co., Solicitors, London, to the sheriff's officer in possession stating: "Take notiee, the London Court. of Bank ruptcy has marle an order rcstrl\ining you from selling or taking any further proccedin.gs in the action against Bishop". , The telegram was shown to Langley who thought it to ho a ruqe on the part of the debt0r but was propared to stop the sale temporarily till instruc tions from Smith. Emmerson sent a telegram to Smith saying: - "Langley just received telegram to stop sale. Shall we proceed? People are waiting your rep y. I " Smith's reply was: "If telegrnm to Langley drws not state Defenrlant filrd petition or morn'y paid, sell at. on en." The sale then•aftnr proceeded. L'.tngle_v and Smith were CCJmmitted fur contempt. hy B<Leon CJ. But on appeal they were <Lcquitted. ,James, L .• T., said at pago 116: "With regard to the sheriff's officer, he does not ~e.eni to have hecn a pa.rty to the alleged contempt :it all, bcc<l.U'e I do not think the mere fact CJf tlw t.clcgram is sufficient to bring home to him any parti<,ipatio11 in the t " suppose< con l'Dl}l . He further ~aid at p:Lge 117, in C'llH<irlcring the C<l.~" of tho auctioneer. l l "It appears to me that he might have t;Lkcn some st<'ps (though I do not kno\\' what steps I should IHwe taken if I had been i11 his position) to ascertain whether an 01dtir harl really been made by the Court. Perhaps some auctione.ern would ha.rn dont• so. But he has tak•m upon himself to swear positively (and he 1962 Hoihiar Singh · v. ,·, Gurbachan Sinih- , RajhUb•rlDay«.l 3:,,.,,·,: 3 S.C.R. SUPREllffi COURT REPORTS 149 has not been cross-examined) that which Lord Eldon, in Kimpton v. Eve (1813 2 V. & B. 349= 35 E.R. 352), held to be sufficient. He swears that he did not believe that there had been any proceedings whatever in the Bankruptcy Court, or that.any such order had been made. A person in such a position, and a sheriff's officer is placed in great difficulty upon receiv ing a telegram of this kind, knowing nothing at all of the person who may have gone to the post office and sent it, a telegram which might just as well have been sent by the debtor or by Matthews, or any one else .on behalf of the debtor, in the name of Messrs. Learoyd. I am very far from saying that notice of an order cannot be given by telegram. But it is very difficult to commit for contempt where a man says that which the auctioneer does here, under circumstances which certainly colour to his assertion, and there is some amount of probability that he may, having regard to what had already taken place that day, not have belived that any order had been made by the Court, and have had no suspicion whatever that he was disobeying any order of the Court when he continued the sale." • Thesinger, L. J., said at p. ll9: " ... I in no way dissent from the proposi- . tion laid down by hirn(Bacon, C.J.) in this case and also in In re Bryant (supra), that, under certain circumstances, a telegram may consti tute such a notice of an order of a Court as to make a person who disregards the notice and acts in contravention of the order, liable for the consequences of a contempt of Court ...... . But the question in each case, and depending upon the particular circumstances of the case must be, was there or was there not such a notice given to the person who is charged with Hosliiar Sint• v. 0UT6odr411 Sin1A R.,lu.Hr D•_;.i J, 150 SUPREME COURT REPOHTS [1962] SUPP. contempt of Court that you can infer from tho facts that he had notico in fact of tl1c order which had be;;n made• Aud, in a matter of this kind, bcarirg in miml that the liberty of the subject is to be afTcctcd, I think that those who assert that there was such a uotice ought to prove it beyond reasonalilc doubt..'' He further stated at page 121: "But, on the other hand, he has positi vely sworn that, coupling what had happened before with tho telegram, hl' bmw. fide believed that he was not hound to act upon the tele gram which he had received, and that (.here had been no proceedings which would justify him in stopping tho sale. He has not been cro11-examined, and nothing has bcc11 proved to show that his affidavit. is 11ot true. Under such circumstances the obscrrntions of Loni Eldon, in K implmi v. l~i:e (supra) seem to me pertinent and material, and I may add that in a case like tho perscnt the hcnPfit of any doubt ought to be given to the person charged with contempt." 'fhe further remarks of .James L. J., at page I ~2 point out the proper way of communicating a notiC'c about injunction orders to tlw parties concerned by the solicitor of the party obtaining tho order from the Court. He says: "I wish to add this, that when parties who obtain an injunction wish to cornmunicato it by telegram, there is a very obvious mo<lc by which thoy can prevent difficulties like this. If tho solicitor, instead of tc]('gmphing to the sheriff's officer, were to telegraph to some solicitor a.s his agent at the place, and tell him to go and give notice of the order, then the person affoctod would have tho responsibility 1962 Ho1hiar Single v. Gurbachan Sin1h Raghuhar Doyal J. 3 S.C.R. 151 of an officer of the Court for what he was doing." This case well illustrates the difficulties of the parties against whom a prohibitive order is made when they are informeJ by a telegram ab:mt these orders having been made by the Uourt even when the telegram was from a solicitor of the Court. The diffioulties would be still greater if the telegram was one from a person who is not a solicitor and fore _an officer of the Court. In The Seraglio(') notice of the issue of warrant which was subsequently disobeyed was sent by tele gram by the marshal to the custom-house officer at .Plymouth who went on board the ::leraglio to in form those in charge of the ship. The master of the Seraglio, however by the owner's order, left Plymouth with the custom-house officer on. board. The warrant was served on him subsequently. Sir Jamea Hannen said at page 121: "It must be understood that a litigar. t cannot be disregard a notice sent to him by telegraph by an officer of the Court." In none of the cases referred to, a pMty is said to have received information of the Court's through any source having no injuuction order connection with the Court passing the order. I would not like an extension of this practice of hol ding a person guilty of contempt even though he is not served with the order, to cases in which his alleged know ledge of the order is dependent 011 the veracity of the witnesses examined by a party praying for action against the other. Conviction for contempt of Court must depend on unimpeach able evidence of the knowledge of the alleged contemner about the order said to have been dis obeyed. In support of the note th11t it could be proved that the party proceeded again~ had notfre of the (I) L.R. (1885) 10 P.D. 120. 152 SUPREME COURT REPORT.::; [Hiuc] SUPP. JJ62 IJ1shi<r Sin:h v. Qurbacha11 Sinth l!qhobar D•ylll ./. order by newspaper report or otherwise, Oswald has rcforred to Daniell's Chancery Practice, Vol. I. Edition 7, page 1368. That edition is not avail able, but in the 8th edition of that book, Vol. II, at page 1413, is noted the practice in urgent cases thus: '"In such (urgent) caaes, the practice is to the party enjoined personally with notice in writing that the injunction has been granwd, and that the order will be drawn up and served as soon as it can bo paased through transcript of tho offices ; or else to procure 11. the minutes of the order signed by the Regis trar, and to serve the same porsonally by delivering a oopy of it, showing at the same time the original transcript su signed ; and either the notice or the minutes will be sufficient to render the defen dant ur other person enjoined guilty of a con tern pt, if he acta in opposition to the in junction." copy of I do not find any reference that knowledge of the party proceeded against through a newspaper report or otherwise, and not through Court, has bet1n con sidered sufficient for contempt proceedings. Again, at page 14HI, have been mentioned certain other means through which tho party pro· ceedod against could have been informed of the injunction order. They are practically those sum marized in Oswald's noto. In the appeal before us, I am not satisfied that tho appellants had been informed that the High Court had passed an order staying the delivery of possession in proceedings on the writ petition filed by respondent Gurbachan Singh. The commu nication made to tb'3 appellants about the stay order of the High Court is said to be through the applications and affid:1vit presented by Didar Singh to tho appellants on May 20, 1958, and through a Hoshiar Sinzh. ·v. ,,, Gurhtuhan 'Sin:h Raghubat. Dayal J. 3 S.C.R. SUPREME COURT l~EPOBTS 153 chit said to have come from the advocate of the High Court regarding the injunction order. dealt with Didar Singh had put in another writ petition against his threatened dispossession by appellant No. 1 through appellant No. 2. There is said to have been a third writ petition by another person praying for similar relief. All these petitions were separately the High Court. Separate stay orders were passed on them. These five affidavits, in view of their contents, are not sufficient to prove that the appellants had been informed through these documents that the High Court had extended the stay orders in all the three cases, viz., the cases on the writ applications of Gurbachan Singh, Didar Singh aRd another third person. No statement is made in any of the affi davits that the applications and .affidavits presented to the appellants mentioned that the High Court had stayed the delivery of possession in all the It is not stated by Didar Singh and three cases. Mastan Singh what was written on the chit sent by the advocate of the High Court and whether that chit related to the order in the case of Didar Singh alone or referred to the orders in all the cases. As Didar Singh claimed a receipt for the presentation of the application and affidavit to appellant No. 2, the latter, after consulting the prosecuting inspector, went to appellant No. l for consultation and was advised to return the applica tion to Didar Singh if he insisted Qn getting a receipt. The application and the affidavit were therefore then returned to one Ganga Bishan. The chit alleged to have been sent by the High Court advocate has not been produced. The application presented to appellant No. 2 in the village and returned by him in the Sub-Divisional Officer's Court, though presumably in possession· of Didar Singh, has not been filed. They would their contents were. That have indicated wl\_at 1962 Hoahiar ~ingh •• 01r1botlun Singh ll•gl.uhar Dayal J, i54 Sl.JPREME COUHT REPORTS (llH>iJ SUPP. woulcl have Leen the best evidence of what was lo appellants Noa. I and 2. Ganga conveyed Bishan's statement that he hacl drafted the uppJi . cation addressed L.1 appellant No. 2 to the off< ct that the st:1y order i;;suerl by the High Court in Jag 1\lalera N amdhari cases had bcim extended, is not the best evidence of what the application (a fair copy presumably). aetm1lly contained, an applica tion which is in the possession of Didar Singh. Of courso, the application and aflidavit presented to the Sub-Di\"isional Officer, are in the possession of the State. No att{)mpt was made by thn respon dent to summon them or to file c!'rt-iJied copies of In the ab those documentll in these proct'cdings. oence of the best evidence, the documents, I am not prepared to hold that the application and afli davit filed by Didar Singh must have referred to !'\ ormally, he had no business to all tho cases. refer to the Rtav urders in the other cases and to make prayc·r fpr thu stay of ddivory of possession in all th<' c·aoes. H" had to restrict his application am! affidavit to his own case. Further, what.r·ver was st<tlNl in the •1pplica in the natme of things, was tion and the affidavit-, not on thl' ba~is of pt·rsonal Jrnowlerlg<' o(Didar Singh .. Didar ~ingh himself <lid not even have the telephonic comrn11nic1.tion with hi8 Chandigarh. The telephonic communication was between Teja Singh and that counsel. Appellant No. 2 states-and I see no reason to. doubt that statement-that in the background of the faets about the possession over the Janel hC' clid not con sider it n.dvisable n.ncl safe to ac<'ept the statement of facts containccl in tlw n.pplication or affidavit on its face value. cu1111sel Lastly, the presence of Ganga. Bisl.1an, A<lv~­ cate, on the occasions of the prescntmg of the apph. cation and afiidavit to appellants Nos. l and 2, is 1962 •• Hoshiar S1ngh Gurhachan Singh Raghubar Dayal J, 3 s.c.:R. SUPREME COURT REPORTS 155 stated in a!J the affidavits. But it is only in para graph 5 of Didar Singh's affidavit that it is stated that Balm Ganga Bishan, Advocate, prrsrnted the application and the affidavit to 1he Sub-Divisional Officer. Ganga Bishan himself does not state so. It is not stated anywhere that Ganga BiHhan had been engaged ·as counsel by Didar Singh. It would appear a bit unusual that in the presence of a duly appointed advocate, applications and affida vits be presented by Didar Singh personally and not through his counsel. On the basis of the state· mrnts and the affidavits, I am not prepared to hold that Gangr• 13ishan was the duly appointed counsel for Didar Singh. He may be accompanying Didar Singh like other persons on account of his in lerest in the matter. Fmther, any request by him to the Sub-Divi sional Officer for pas~ing the necessary ordcis.on the application of Didar Singh, as stated by him in paragraph 3 of his affidavit, cannot lead to the con clusion that he profrssi0nally represented Didar Singh, as similar requests were made, according to his own affidavit, by the other persons also, who had accompanied Didar Singh to the Sub-Divisional Officer's Court. The Sub-Divisional Officer, there fore, could not have treated his request to be a statement of fact about the High Court's extending the stay order up to May 23, 1958. Ganga Bishan does not state that he told the Court that the High Court had extended the dura tion of the stay order or that he requested the Sub-Divioional Officer, who is also the Sub-Divi sional Magistrate, to stay the delivery of possession in view of the application filed by Didar Singh. He Bimply states: "Several to the Sub-Divisional Magistrate by us that neces sary orders on the application presented . to requests were made \ t \ I I \ I I i ! 1!16~ Ho•hiar Si 11:11 •• Gurbochon S-i11gh Ratf1ubar Doyal J. 156 SCPHE!IJ}:; ·couHT REl'ORTii (l!J62] SUPP. him he made and the Munaging Officer be called back." Ev~n if Ganga Bishan had st1itcd that the High Court had extended the order, his st1itcment too, had no better value when he could not speak about that order on tho basis of person~] knowledge or on the basis of any communication to him by the Advocate of the High Court. Ho has not sta· ted in his affidavit that he was present whe11 the order wa;i passed or that he had received 1rny com munication from the High Court Advocate. I am therefore of opinion that his merely accompanying Didar Singh and others did not invest any greater weight to the correctness of the statements made in the application aud the afiidavit. The public officers are not to blame if they do not take at face value what is contained iu deliber atley prepared applications and affidavits. I have already mentioned of tho way in which the crucial basic fact to be mentioned in tho petition for con tempt proceedings against the appellants had not been mentioned and statements were made in a way which at. first sight could lead to the impression that the delivery of possession had been made in defiance of the order of the High Court. I am therefore of opinion that it is not esta blished the respondents did not rely on the state ments in tho application and the a.flidavit ma/,a firk because they were bent upon delivering possession in defiance of the orrlors of the High Court. I find in this ease that on May 16, orders of the High Court were obtained for serving the stay order upon the appellants through the petitioner reapoudent, but no such <Jrdcr was obtained for In view of the urgency of the matter, the respondent and others who had obtained extension of the stay orders on · serving the order dated May 19. ' 3 S.C.R. SUPREME COURT REPORTS . 157 the 19th could have and should have obtained similar orders of the High Court for serving them. If that precaution had been taken again on May 19, 1958, probably what happened snbsequently ou the spot and th'3r'3after, would not have taken place. 1962 Hoshiar Singh v. Gurbachan Singh Raghr, bar Daya/_ J, I am therefore of opinion that the appellants committed no contempt of Court, and would allow their appeal. BY COURT : In accordance with the opinion of the majority, the appeal fails and is dismissed. Appe, al dismissed. THE NATIONAL UNION OF COMMERCIAL EMPLOYEES AND ANOTHER v. 1962 :l'ebruary 13. M. R. MERER, INDUSTRIAL TRIBUNAL, BOMBAY AND OTHERS (P. B. GAJENDRAGADKAR, A. K. SARKAR and K. N. WANCHOO, JJ.) .Industrial Dispute-Solicitor's profession-Work of solici tor, if an industry-Dispute with employee-Reference to Tribu nal-Oompetence-IndustrialDisputes Act, 1947 (14 of 1947), •. 2 (j). The respondents were a firm carrying on the work of solicitors in Bombay. For the years 1956 and 1957 a claim for bonus was made against them by their employees. Before the Industrial Tribunal to .which the dispute was referred by the State Government for adjudication under the provisions of the Industrial Disputes Act, 1947, the respondents conten ded that the profession followed by them was not an industry within the meaning of s. 2(j) of the Act, the dispute raised against them was not an industrial dispute· under the Act, and that, therefore, the reference made by the Govern ment was incompetent. Held, that the work of solicitors is not an industry within the meaning of s. 2(j) of the Industrial Disputes Act, T947 and that, therefore, any dispute raised by the employees of \ } I