P L D 1964 Dacca 276 (PLP)

M. R. KHAN, J.‑This Rule has been issued at the instance of the petitioners against the opposite‑paries 1 to 4 to show cause why they should not be proceeded against for contempt of Court for violating the order of injunction passed by this Court on the 9th April 1963 in Petition No. 184 of 1963 under Article 98 of the Constitution filed by the same petitioners against the Province of East Pakistan, the Deputy Commissioner and the Additional Deputy Commissioner (Revenue), Dacca.

2. The petitioners' predecessor‑in‑interest, it is alleged, established a cattle market on his raiyati lands bearing C. S. plots 196, 197, 199 and 200 of Mauza Tongi and C. S. plots 228 and 214/444 of Mauza Archpur, adjacent to the Tongi Bazar, belonging to the Government of East Pakistan. While the petitioners were in possession of the cattle market as owners thereof the Government issued Notification No. 4849 L. R. dated the 2nd April 1956, under subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII), purporting to acquire all non‑retainable kkas lands of all rent‑receivers situated in the district of Dacca. In pursuance of the said notification, a notice was issued on behalf of the Government on the 4th March 1963, declaring that the said cattle market would be settled by auction to be held on 21‑3‑63, but the date was subsequently shifted to 13‑4‑

63. Thereupon the peti tioners filed a petition under Article 98 of the Constitution (hereinafter called the writ petition) challenging the right of the Government to put the cattle market to auction on the ground that the same is not acquirable under the aforesaid Act as the petitioners are not rent‑receivers and do not possess khas lands in excess of the retainable limit under that Act. A prayer for an ad‑interim injuction was also made in that petition. Accordingly, a rule was issued on 9‑4‑63 against the three respondents in that petition, namely, the Government of East Pakistan, the Deputy Commissioner and the Additional Deputy Commissioner, Dacca. In that rule, those respondents were directed to stay the holding of auction of the disputed cattle market and were also restrained by an order of injunction from interfering with the petitioners' possession thereof till disposal of the rule.

3. On 1‑5‑63, the petitioners moved a petition in this Court against as many as 16 persons (hereinafter called the contempt petition) alleging that opposite‑party No. 1 of that petition who is respondent No. 3 in the writ petition held auction of the disputed cattle‑market on 13‑4‑63 in spite of the service of this Court's order of injunction on him and the personal request of the petitioners not to hold the auction in face of the order of injunction. The opposite‑party No. 4 was alleged to have participated in the auction and became the highest bidder although the petitioners had informed him earlier of the Court's order of injunction. It was further alleged that the opposite -party No. 4, with the help of the other opposite‑parties disturbed the petitioners' possession of the disputed cattle market on the market day on 21‑4‑63 and illegally collected tolls by granting receipts therefore.

4. On that petition, the present rule was issued on 1‑5‑63 only on the opposite‑parties 1 to 4 ; out of the opposite‑parties numbering 16, to show cause against committal for contempt for violating the order of injunction.

5. Of the four opposite‑parties proceeded against for contempt of Court, the opposite‑party No. 1 is the Additional Deputy Commissioner Revenue, Dacca, who held the auction of the disputed cattle‑market. The opposite‑parties 2 and 3 are the officers subordinate to the opposite‑party No. 1, the former being the Sub‑Divisional Manager, Acquired Estate, Sadar North, Dacca and the latter being the Tahsildar, Joydebpur kutchery of the Acquired Estate. 7 he opposite‑party No. 4 is Tota Bepari who gave the highest bid at the auction of the disputed cattle -market. It may be mentioned here that of the said four opposite -parties the opposite‑party No. 1 alone was a party to the writ petition and the injunction rule issued on that petition.

6. All these opposite‑parties have sworn affidavits denying the petitioners' allegations and the alleged violation of the order of injunction. The opposite‑party No. 1 admits that he held the auction of the disputed cattle on 13‑4‑63 for the year 1370 B. S. and accepted the highest bid of the opposite‑party No. 4, but contends that he did so before the service of the writ rule and the injunction order on him. He denies the allegation that the petitioners had informed him of the order of injunction before the holding of the auction. He further denies the allega tion that the opposite‑parties 2 and 3 were present in his office at the time of the auction and contends that the order of injunction was received by him at 2‑05 p.m., on 13‑4‑63, but the auction was held at 10‑30 a.m. on the said date ; that immediately after the receipt of the order of injunction he passed an order staying further proceedings and communicated it to the opposite‑party No. 2 by his memo. No. 3041 (En) Rev. XII/63 ; dated 16‑4‑63 and that the opposite‑party No. 4 was duly informed of it before the first market day of the year 1370 B. S. falling due on 21‑4‑63.

7. The opposite‑parties 2 and 3 deny the allegations made against them and contend that they did not help the opposite- party No. 4 in any way, in interfering with the petitioner's posses sion of the disputed cattle market on 21‑4‑

63. The contention of the opposite‑party No. 2 is that the order of the opposite -party No. 1 staying further proceedings was received by him on the afternoon of 16‑4‑63 and that by his memo. No. 1358 (2) S. A. V‑1/63, dated 19‑4‑63, he asked the Tehsildar‑incharge, Joydeb pur thana tehsil to inform the opposite‑party No. 4 about the order of the High Court. A copy of the said memo. was accordingly served on the opposite‑party No. 4 on 20‑4‑63 which he accepted by signing his name. The opposite‑party No. 3 supports that a copy of the said memo. of the opposite‑party No. 3 was duly served on the opposite‑party No. 2 and states that he was not aware of the order of injunction before the receipt of that memo. on 19‑4‑63.

8. The opposite‑party No. 4 (sic.) the allegation that the petitioners had informed him of the order of injunction before the auction took place on 13‑4‑63 and contends that he gave bid at the auction without any knowledge of the order of injunction. His further contention is that from before the date of passing the order of injunction he is a fractional owner of C. S. plots 196 and 199 which form part of the disputed cattle market ; that on the market day on 21‑4‑63 he collected tolls as usual in his own right as a co‑sharer and also on the basis of his auction settlement ; that he received the memo. of opposite‑party No. 2 staying further proceedings on 21‑4‑63 at 3 p.m. and that as soon as he received that memo., he stopped collecting tolls in obedience to the order of the High Court.

9. The opposite‑party No. 1 solemnly affirms that on receipt of a copy of the writ petition on 13‑4‑63, he made the following note thereon. "This was received at 2 p m., i.e. after the office hours. Auction was held to‑day at 10‑30 a.m. (1) Sub‑Divisional Manager (North) shall be informed to stay further proceeding till final disposal of this case (2) Legal Remembrancer may be requested for necessary action in connection with this case, the hearing of which has been fixed on 23‑4‑63". The petitioners did not mention in the contempt petition the time when the order of injunction was served on the opposite -party No. 1, nor did they mention the time when the auction was held. It was only after the receipt of the opposite‑party No. 1's affidavit‑in‑opposition that the petitioners, in their affidavit‑in‑reply, stated that the rule issued by the High Court on the writ petition along with the order of injunction was served on the opposite‑party No. 1 on 13‑4‑63 at about 11 a.m. and the auction was held at 11‑30 a.m. This appears to be an after‑thought and is calculated to meet the solemn affirmation of the opposite‑party No. I that the auction was held at 10‑30 a.m. on 13‑4‑63 and that he received the order of injunction the same day at 2‑05 p.m.

10. The opposite‑party No. 1 swears that the petitioners did not inform him of the order of injunction prior to the holding of auction at 10‑30 a.m. on 13‑4‑

63. There is no sufficient reason to disbelieve the statement of the opposite‑party No. 1, a responsible officer, made on oath. The opposite‑part, No. 1 as will be seen presently, issued an order staying further proceed ings till the disposal of the writ petition. This implies that had the order of injunction been served on him prior to the holding of auction, he would have stopped it in obedience to that order. It may, therefore, be safely taken that the opposite‑party No. .1 held the auction on 13‑4‑63, before the service of the order of injunction on him and without the knowledge of that order.

11. It appears from the further affidavit of the opposite -party No 1 that on 16‑4‑63 he sent memo. No. 3041 (En) Rev‑X II/63 to the opposite‑party No. 2, the material part of which runs thus: "Notice together with the plaint of writ case No. 184 of 1963 is sent to you herewith for information. The notice was received at 2‑05 p.m. after the office hours. Auction was held at 10‑30 a.m. You will please stay further proceedings till final disposal of the writ case." The said memo. was received by the opposite‑party No. 2 on the afternoon of 16‑4‑63, and he, in his turn, addressed the following memo. to the opposite‑party No. 3, and also to the Tehsildar in‑charge on 19‑4‑63 and sent the same to them through a special messenger. "Sub :‑Writ Petition case No. 185/1963. Aftabuddin Sarkar v. Province of East Pakistan. N. 1358 (2)‑SA‑1/53 dated 19‑4‑

63. To (1) The Tehsildar‑in‑charge, Joydebpur Thana Tehsil. (2) The Asstt. Tehsildar, (Patwar) Tongi. Ref‑A. D. C. (Rev)'s Memo. No. 3041 `(En)‑Rev‑XII/63 dated 16‑4‑

63. The above‑named petitioners have filed a writ petition before the Hon'ble High Court, Dacca, in respect of Jote lands as covered by market and it has been ordered to stay further proceedings till final disposal of the writ case, as communicated with memo. under reference. "You are, therefore, asked to take necessary action in the matter and inform the lessee Tota Bepari (for 1370 B. S.) accordingly at once." The Tehsildar sent a copy of it to the opposite‑party No. 4 under memo. 555/1 dated 20‑4‑63 which, as the endorsement thereon shows, was received by the opposite‑party No. 4 the same under his own signature. Thus, it is clear that the opposite‑party No. 1 stayed further proceedings till the disposal of writ petition and the opposite‑parties No. 2 and 3 took necessary steps communicating the stay order to the opposite‑party No. 4 which was, in fact, communicated to him one day before the market day on 21‑5‑

63. There was no allegation in the contempt petition if the opposite parties 2 and 3 were also present when the auction was held on 13‑4‑

63. It was only in their affidavit‑in‑reply that the petitioners came out with an allegation that the opposite‑parties 2 and 3 also attended the auction and came to know of the order of injunction. This was, however, refuted by the opposite- party No. 1 in his further affidavit, stating that on the said date both the opposite‑parties 2 and 3 remained in their respective offices but did not come to attend the auction.

12. Regarding the allegation as to the rendering of help by the opposite‑parties 2 and 3 to the opposite‑party No. 4 on the market day on 21‑4‑63 in interfering with the possession of the petitioners, the opposite‑parties 2 and 3, in their affidavits, have emphatically denied this allegation. When the opposite‑parties 2 and 3 caused the stay order served on the opposite‑party No. 4 on the previous day, it was hardly likely that they assisted him the next day in interfering with the possession of the petitioners.

13. On these facts and circumstances, the opposite‑parties 1 to 3 cannot be held liable for contempt of Court for violating the order of injunction. In this connection, we would, however, observe that the order of the opposite‑party No. 1 staying proceedings is not clear enough ; the order should have expressly stated that the High Court issued an injunction restraining interference with the petitioners' possession of the disputed cattle market. We, would, further observe that there was delay in com municating the High Court's order to the opposite‑party No. 4, for, it took seven days' time to communicate the order although the opposite‑party No. 4 lives not far from the office of the Ad ditional Deputy Commissioner and the Kutchery and Joydebpur.

14. We shall now consider the case against Tota Bapari, the opposite‑party No.

4. The petitioners have since admitted in their affidavit‑in‑reply that the opposite‑party No. 4 acquired a part of each of the C. S. plots 196 and 199 of Mauza Tongi as alleged by him, but they contended that those parts are distinct and separate from the place whereon the disputed cattle market sits. Be that as it may, it is not necessary to determine here if the opposite‑party No. 4 has any right to the disputed cattle market as co‑sharer, for opposite‑party No. 4 has admitted in his affidavit that he collected tolls from the disputed cattle‑market on 21‑4‑63 not only as a co‑sharer but also on the basis of his auction‑settlement. Of course, he stated that the order staying further proceedings was received by him at 5 p.m. on 21‑4‑63, but the endorsement on memo. No. 535/1, dated 20‑4‑63 shows that he received the stay order on 20‑4‑63 under his own signature. Thus it is clear that the opposite‑party No. 4 collected tolls from the disputed cattle market on 21‑4‑63 with full knowledge of the order staying further proceedings. This gives rise to the question whether the opposite‑party No. 4 who was not a party to the writ petition and the injunction rule can be committed for contempt of Court for disobeying the order of injunction.

15. An identical question came up for the consideration of the Patna High Court in the Kuchwar Lime and Stone Company Limited v. Secretary of State for India‑in‑Council (I L R 1937 Pat. 159). The facts of that case, briefly stated, are that the Kuchwar Lime and Stone Company Limited brought a suit against the Secretary of State for a declaration that their mining leases had not been validly terminated by the Government and for an injunction to restrain the Secretary of State, his servants and agents, from granting leases to the Kalyanpur Company or to others and from authoris ing such person or persons to carry on operations in the mines concerned and from otherwise interfering with any of their rights in respect of the said mines. The suit was dismissed by trial Court, but, on appeal, the High Court decreed the suit and granted the injunction prayed for. After the termination of the mining leases of the plaintiff company but before the institution of the suit, the Government leased out the same mines to the Kalyanpur Company of which S. N. Ghose and S. N. Banerjee were the managing director and manager, respectively. After the suit had been decreed and the injunction granted by the High Court. Ghose and Banerjee, representing Kalyanpur Company, resumed operations in the mines on the strength of the previous lease to that company. On these facts, the Secretary of State as also Ghose and Banerjee were proceeded against for contempt of Court for disobeying the order of injunction. On behalf of Ghose and Banerjee, it was argued in that case that as they were not parties to the suit they were not bound by the injunction granted against the Government and could not, therefore, be held guilty of a breach thereof. Rejecting this contention, the Patna High Court held: But if the Kalyanpur Lime Works and Banerjee and Ghose are considered as servants or agents of the Government they are undoubtedly liable for breach of the injunction if they knowingly acted as servants or agents of the Government. We are unable to say what the precise relationship between the Government and Kalyanpur Company really was . . . . . . . . . But quite apart. from the question of service or agency there can be no doubt whatever that from the beginning the opposite party Banerjee and Ghose were thoroughly aware that their presence upon the quarry with the permission of the Government was setting at naught the order of the Court, and in these circumstances the conduct of these respondents was contempt of the authority of the Court whether or not they were them selves bound by the injunction. The distinction between the two kinds of contempt has long been well‑recognised and was clearly, explained by the Court of appeal in Seaward v. Pater son (1897) 1 Ch. 545 where all the authorities were examined."

16. In the Chancery Division case relied on by the Patna High Court, Seaward and two others brought an action against Seaward's lessee Paterson and obtained an order of injunction restraining Paterson, his under‑tenants, agents and servants from interfering with the plaintiffs' full and quiet enjoyment of their adjoining and neighbouring premises or from causing to them any annoyance, nuisance, inconvenience and disturbance etc. In a subsequent action for contempt of Court, it was alleged that after the making of the order of injunction, that is, on October 9 and October, 21, 1896, Paterson, the sole defendant, had disobeyed the order, by permitting boxing matches upon the premises demised to him, which caused a serious nuisance to the owners and occupiers of the neighbouring and adjoining houses. It was further alleged that Sheppard and Murray had aided and assisted Paterson in disobeying the order. North, J., who heard the matter found on facts that there had been a breach of the injunction by Paterson, and a contempt of Court by reason of that breach. Sheppard was found to have actively assisted Paterson as a servant in what had taken place with full knowledge of the order of injunction. Murray, though not a servant of Paterson, was also found to have aided and assisted him in committing a breach of the injunction, with full knowledge of the prohibitory order. On behalf of Murray, it was argued that he was not a party to the action ; that the injunction was granted only against Paterson, his servants and agents and that Murray was not liable for con tempt as he was neither a servant nor an agent of Paterson. In rejecting this argument, the learned Judge held "In my opinion that is not a matter of any importance. The application to commit Murray is made not for breach of the injunction, but for a contempt of Court in aiding and abetting Paterson in the acts which constituted a breach of the injunc tion and which were a contempt of Court by him, and by everyone who was present and knowingly assisted him in what he did." Accordingly, all the three respondents, namely, Paterson, Sheppard and Murray were found guilty of contempt of Court, the first two for disobeying the order of injunction, and Murray for knowingly aiding and assisting Paterson in a breach of the injunction.

17. From this decision, Murray appealed. The learned Judge of the Court of Appeal, by their separate but concurring judgments, dismissed the appeal and upheld the decision. With regard to the Court's jurisdiction to commit Murray, who was not a party to the action in which the order of injunction was made, Lindely, L. J. observed: "Now, let us consider what jurisdiction the Court has to make an order against Murray. 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 the 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 attach him for contempt as distinguished from a breach of the injunction, which has a technical meaning." The above observation was then further elucidated by the learned Judge as follows: "A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing ; and a motion to commit a man for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the order of the Court for the benefit of the person who got it. In the other case the Court will not allow its process to be set at naught and treated with contempt. In the one case the person who is interested in enforcing the order enforces it for his own benefit ; in the other case, if the order of the Court has been contumaciously set at naught the offender cannot square it with the person who has obtained the order and save him from the consequences of his act. The distinction between the two kinds of contempt is perfectly well‑known, although in some cases there may be a little difficulty in saying on which side of the line a case falls." A. L. Smith, L. J. expressed his opinion on the same point in the following words :‑ "The real question to be decided in this case is whether or not Murray, on October, and 21, 1896, or either of those days, was party or privy to, in other words, aided and abetted Paterson in committing a breach of the injunction which North, J., had granted on July, 15, 1896. As regards the law, I have myself no doubt that if a person who knows that an injunction has been granted aids and abets in committing a breach of it the Court of Chancery has jurisdiction to commit him for contempt, although he is not a defendant in the action, and he is not a person against whom the injunction has been gran ted ......... But in this case there is evidence which clearly proves that Murray was not there as a mere spectator only, but he was aiding and abetting in a breach of the injunction which he knew bad been granted, and which he flagrantly disobeyed. For these reasons I think my brother North's judgment in this case must be upheld." Maintaining the same view, the learned third Judge Righby, L. J., observed: " . . . I have no doubt whatsoever that the aiding and abetting in breach of the injunction here on the part of Murray was both wilful and in a high degree reprehensible." Thus, the principles set out in Seaward v. Paterson appears to be that there is a clear distinction between a motion to commit a person for contempt of Court for breach of an injunction by which he is bound and a motion to commit another person not bound by the injunction on the ground that he has obstructed the course of justice by aiding and abetting the person bound by an injunc tion in a breach of that injunction. In the first case, the person bound by the injunction is proceeded against for the purpose of enforcing the order of injunction for the benefit of the person who got the order, in the second case the person not bound by the injunction is proceeded against as an abettor because it is not for the public benefit that the course of justice should be obstructed.

18. Following these principles as set out Seaward v. Paterson the Patna High Court held in the Kuchwar Lime and Stone Company's case that the Secretary of State who was bound by the injunction as also Ghose and Banerjee who were not so bound were guilty of contempt of Court.

19. On appeal against the said decision of the Patna High Court, the Privy Council held that there had been no contempt by the Secretary of State (A I R 1938 P C 295). But an argument was advanced that Ghose and Banerjee were nevertheless guilty of contempt of Court for aiding and abetting, upon the principles set out in Avery v. Andrews ((1882) 51 L J Ch. 414) and Seaward v. Paterson. This argument was not acceptable to their Lordships, and they said: "The respondents however contended that even if the Secretary of State was 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 (1882) 51 L J Ch. 414 and (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 there 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 the cases referred to, nor do they think it is sound in principle. The actual wording of the injunction in the present case is "to restrain the defendant and his servants from interfer ing with the plaintiffs' lease" Ghose and Banerjee are not the servants of the Secretary of State and, therefore, did not do anything forbidden by the injunction. The utmost which the respondents could say was that the Kalyanpur Company, having derived their supposed interest from the Secretary of State, who had been forbidden to interfere with the respon dents' lease, were acting against the spirit, if not the letter of the injunction, in taking or continuing in possession of the quarries, and were, therefore, guilty of contempt in interfering with the respondents' lease. The fact however that Ghose and Banerjee claimed on behalf of their company to derive title, rightly or wrongly (and their Lordships will assume wrongly), through the Secretary of State, cannot in their view make them liable for an act not forbidden to them though forbidden to him." .............. . . In their Lordships' view Ghose and Banerjee could only be held liable for contempt if they had aided and abetted the Secretary of State in breaking the injunction, and as has been explained above that liability mu3t fail if the petition against the Secretary of State fails."

20. In the present case, the contempt petition against the opposite‑party No. 1 who was bound by the order of injunction, as already stated, has failed. It has also failed against the opposite‑parties 2 and 3 who are officers subordinate to opposite- party No.

1. Consequently, the opposite‑party No. 4 who was not bound by the injunction cannot be held liable for contempt, on the principles laid down by the Privy Council in the Kuchwar Lime and Stone Company's case. We, therefore, discharge the Rule, but make no order as to costs. CHOWDHURY, C. J.

‑I agree. S. Q./K. B. A. Rule discharged.