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Calcutta High Court
Mawazzam Ali Khan And Ors. vs Shebash Chandra Pakrashi And Anr. on 12 April, 1927
Equivalent citations: AIR 1927 Cal 598
Author: Rankin


Rankin, C.J.

1. This is a somewhat unusual case and in certain aspects it is regrettable.

2. It appears that there was an election, the date of which is not given in the paper-book, for the Serajgunj Local Board. One of the thanas that sent representatives to that Local Board is called the Chauhali Thana, and it appears that a certain Babu Shebash Chandra Pakrashi was declared elected to the Local Board for that thana. There was then a suit for setting aside that election and on the 9th May 1925, by the judgment of the Munsif that election was declared invalid and Shebash Chandra Pakrashi was restrained from acting as a member. There was a meeting of the Local Board on the 3rd July 1925, apparently for the purpose of electing a Chairman and Vice-Chairman, and for electing nine persons to represent the Local Board on the District Board.

3. It was at one time alleged that, apart from the circumstance that there was no representative from the Chauhali Thana, other illegalities affected what was done in that meeting. The meeting having been held on the 3rd July 1925, we find that on the 13th November 1925 Shebash. Chandra Pakrashi and another gentleman who had been elected to the Local Board of Serajgunj instituted a suit and presented a petition asking that a temporary injunction should be granted against the defendants being the persons-elected to represent the Local Board on the District Board, restraining them from attending at a meeting of the District Board which had been announced for the 26th November, that is to say, 13 days after the suit and four months after the illegalities complained of. When this meeting had been first announced I do not know. The Munsif dealt with the application for injunction and we are informed that he dealt with it not as an ex-parte application, but in the presence of both parties and he refused the application. This had happened on the 16th November 1925. Thereupon on the 24th November proceedings took, place which to my mind are astonishing in more ways than one.

4. It appears that the District Judge was at the time sitting at Bogra – a place where he has to take sessions and not a. place at which civil business is done by the District Judge at all. An application was made to him on the 24th, November being the presentation of an appeal against the order of the Munsif and being a petition asking for a temporary injunction to restrain the persons, whom I have mentioned from attending this meeting on the 26th November, that is, in two days’ time. The learned District Judge who in the ordinary way would have had nothing to do with such an application-it being part of the-legitimate business of the senior Subordinate Judge in charge of the office of the District Judge at Pabna – made an order to issue notices upon the respondents to show cause on the 30th November. “In the meantime, the respondents-are directed not to join in the said meeting” – in other words (as the only question before the Munsif was whether those persons should be restrained from taking part in the meeting of the 26th November) the District Judge reversed the decision of the Munsif for all purposes and granted the very relief which the Munsif had refused – and all this in the absence of the respondents.

5. The paper-book in this appeal does not contain the petition on which this District Judge acted in this manner, but the document is on the record. It is a somewhat lengthy Bengali document and we have done our best to discover what representation was therein made as to the irreparable injury that would be sustained by the appellants if those nine persons were permitted to attend this meeting. It appears that this document contains all sorts of grievances but it is entirely lacking in any statement which purports in any sensible way to show that there would be any real injury at all. It is stated that if the meeting of the Local Board held on the 3rd of July 1925 had been properly conducted, one of the plaintiffs would have been elected to the District Board and that the Chauhali Thana was not represented at the meeting of the 3rd July of the Local Board. One would have thought that no Judge would think of interfering with the proceedings of a local authority on such materials. The petition is demurrable and discloses no reason for a summary interference with the proceedings of the local authority.

6. Now, there are two separate questions. The first question is whether the learned District Judge had any jurisdiction to entertain this matter at all. The second question is whether the learned District Judge was acting oppressively and wrongly in making the order with which we are now concerned. There is a great difference between these two questions for the present purpose. Whether an order is right or wrong, if it is made with jurisdiction it is the duty of the parties to obey the order and the obedience that has to be given to orders of the Court cannot be dependent on people’s opinion as to their propriety. I proceed therefore to deal with the first question of jurisdiction.

7. In the Bengal, North-Western Provinces and Assam Civil Courts Act (Act 12 of 1887), Section 14 provides that it is for the Local Government, by notification in the official gazette, to fix and alter the place or places at which any Civil Court under this Act is to be held. In this case the fixed place was Pabna. By Section 10 it is provided that
in the event of the death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the Additional Judge, or if an Additional Judge is not present at that place, the senior Subordinate Judge present thereat shall, without relinquishing his ordinary duties, assume charge of the office of the District Judge and shall continue in charge thereof until the office is resumed by the District Judge or assumed by an officer appointed thereto.

8. Now, under that section absence from the place at which the Court is held is dealt with in the same way as resignation or removal or incapacity by illness and the duty of doing the work is cast imperatively upon the Subordinate Judge. We also know that the office is to be resumed by the District Judge according to the plain terms of the section. It was not disputed that in this case the assumption of jurisdiction by the District Judge was irregular-certainly it was highly irregular and particularly unwise.

9. But it is contended that he was not without jurisdiction, because, the District Judge, although he was not at the place where his Court is held, must be taken to be still the District Judge and so the procedure adopted by him cannot be said to be more than an irregularity, on his part. It is also argued that there may be at the same time two officers each of whom is discharging the office of the District Judge. In my opinion, however, the statute cannot be so construed. There is no intention on the part of the legislature to have a duplication of characters or to give people a choice to go before one officer or another. If, for example, one puts to oneself the question whether this District Judge at Bogra could have summoned parties in a contested case before him at Bogra and proceeded to exercise civil jurisdiction over them, then the answer must be that such proceedings would be wholly without jurisdiction. The parties would have been under no duty or obligation whatever to attend the Court. In my judgment the learned District Judge having left Pabna and being absent from the place where his Court was held, the only person who had any right to deal with the appeal was the Subordinate Judge who was then discharging the office of the District Judge. In my opinion therefore this order of the District Judge is without jurisdiction. I have already pointed out that it was, in any possible view, irregular. Nobody supposes that it was in any way usual that civil business of Pabna should be done at Bogra. The order made was also wrong on the merits.

10. There is another point, however, which requires to be animadverted upon. It appears that there was a certain pleader who was a candidate for the Chairmanship of the District Board, and, the defendants in this case were apparently-most of them-his supporters. On evidence which does not appear to me to be very definite or very strong the District Judge found that these people had been heard discussing the matter and that this pleader had been heard saying that the order was made without jurisdiction and that it would be no offence if it was disobeyed. In that view the learned District Judge has not only punished for contempt of Court the parsons who were guilty of a breach of his order of the 24th November 1925, but he has directed the properties of this pleader to be attached as a person who was abetting the other people in committing the contempt of Court.

11. There can be no doubt that according to the English cases there does exist in the High Court in England a power to commit for contempt persons who abet disobedience of an injunction. Bit for the purposes of the mofussil Courts this jurisdiction has to be taken as it appears in Order 39 of the Code of Civil Procedure, In my judgment there is no reason to suppose that any such power was intended to be conferred by the terms of Rule 2 of that order. It is quite true that the phrase used is “the person guilty of such disobedience or breach.” It is used with reference to Clause (1) and Clause (2). Clause 2 gives the Court the power of granting an injunction
on such terms as to the duration of the injunction, keeping an account, giving security or otherwise as the Court thinks fit.

12.”The person guilty of such disobedience or breach” includes a person guilty of a breach of any such terms. It seems to me wrong to argue, that Clause (3) is intended to give the Court power to visit for contempt of Court people against whom no order is made Or terms imposed. I have the greatest difficulty in seeing that anybody can be guilty of disobedience of an order except the person to whom the order is directed.

13. There is a still further point about the order under appeal. That order directs the attachment of the properties of all the parties, and, as regards Respondents. Nos. 1 and 3 to 9 it directs that they be detained in civil prison for a fortnight as well. It is quite true that the terms in which Rule 2 of Order 39 is expressed are misleading and ill-advised in that they read as if the Court were obliged to order an attachment of property and unles9 this is done, cannot order imprisonment. That may be the reason why the learned District Judge has made the orders in the way he has done.

14. Attachment is a singularly unsuitable form of punishment in such a case as the case of the Khan Bahadur. If a person is ordered to do something and he does not do it, attachment of his property may be a very useful form of pressure to compel him to do his duty. But it seams to me that to order attachment of the properties of the Khan Bahadur was a somewhat ill-advised order in this case. This case represents several regrettable incidents.

15. I hold that the learned District Judge on the 22nd December 1925 had no jurisdiction to make the order which was made and that the parties therefore cannot be visited with punishment for disobedience to it.

16. In my judgment the order of the District Judge should be set aside and this appeal must be allowed with costs. The hearing-fee is assessed at ten gold mohurs.

Majumdar, J.

17. I agree.

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