P L D 1965 (W (PLP)

3. In the opinion of the learned District Judge, several of the passages appearing in the affidavit filed by Mrs. Collaco amounted per se to contempt of this Court in that they tended to interfere with the course of justice, prejudiced the public against one of the parties to the proceedings, reviled and defamed the learned Civil Judge who could not contradict the publication nor take proceedings in his individual capacity to vindicate his reputation, since the very taking of such an action would bring the administration of justice into disrepute. Accordingly, action be recommended against both the respondents.

4. After notice was issued to the parties, I recorded the statements of Mrs. Rose Collaco and also of Mr. Fonesca an Advocate of this Court, who admittedly, had been engaged by Mrs. Collaco at an earlier stage of the suit before Mr. A. Q. Qazi. Mr. Nathulal has filed a lengthy and contentious, indeed almost a contemptuous, written statement, but has not himself stepped into the witness‑box. The document which contains the language constituting contempt of Court, is as already stated, the affidavit dated 11th December 1961. The offending passages as referred to by the learned District Judge, in his order are contained in paragraphs 2, 3, 12, 13, 15, 16, 17 and 24 of the affidavit. It is contended that the language contained in each of these paragraphs is scandalous of the Court of the learned Sub‑Judge Mr. Qazi, is vituperative, contemptuous, unbalanced and disproportionate to the occasion. It vilifies the learned Sub Judge and openly attributes to him motives of unfriendliness and partiality. His conduct has been characterised as atrocious. Mrs. Collaco in her reply to the notice issued to her by the learned District Judge, Karachi and in her affidavit dated the 26th October 1962, contended that her affidavit containing the offending passages was the handy work of Mr. Nathulal who was their real author and that she more or less signed along the dotted line. Mr. Nathulal, on the other hand,, has contended that the allegations by Mrs. Collaco were false, that the affidavit was drafted at her instance and that he had ascertained the veracity of these allegations against the learned Sub‑Judge from Mr. Fonesca. In their statement in this Court, both Mrs. Rose Collaco and Mr. Fonesca have denied these allegations of Mr. Nathulal. Mr. Fonesca definitely denied in cross‑examination to Mr. Nathulal that Mr. Nathulal had ever written any letter to him to confirm the allegations against the learned Sub‑Judge or that he had ever had a talk with him or gone to Mr. Nathulal in regard to this matter. Mr. Nathulal has failed to produce the letter which, according to him, confirmed the veracity of the allegations of Mrs. Collaco against the learned Sub‑Judge and has otherwise been unable to prove any points of defence raised by him to the notice issued against him. I am firmly of the view that Mr. Nathulal is the draftsman and the author of the affidavit filed by Mrs. Collaco and that the allegations contained clearly constituting contempt have been imported into the affidavit by Mr. Nathulal, that he advised Mrs. Collaco accordingly and Mrs. Collaco accepted them, and relying on Mr. Nathulal signed and swore the affidavit.

5. In the course of her statement in this Court and also, as previously, stated, Mrs. Collaco has tendered an unqualified apology realising, no doubt, the seriousness or the gravity of what she had sworn to in the offending affidavit. She further urged that she did not desire to impair the dignity of this Court and threw herself entirely at the mercy of this Court, for being an educated person and belonging to a good family, she would never have knowingly committed an act likely to besmirch the name and honour of Courts.

6. Mr. Nathulal, on the other hand, has tried to justify his conduct and argued with considerable vehemence and acrimony, the grave man of his case being that the learned Sub‑Judge disregarded the directions given by the learned Senior Judge of this High Court in his order dated the 21st September 1960. If there was such disregard of the directions given by the learned Senior Judge it should have been brought to his notice and he could have adequately dealt with the matter. Besides no application for transfer of this case was moved. None of these courses was adopted and a wholly unwarranted procedure of giving public expressions to private feelings was resorted to. The language used in the affidavit clearly constitutes that contempt which is called scandalizing the Court or a Judge presiding over a Court and the over all effect is to convey unmistakably that the learned Civil Judge was acting perversely was being partial to the other side having definitely decided to do injustice to Mrs. Collaco. No clearer case of contempt could have been made out and it is axiomatic in law that truth is no defence in a proceeding for contempt. It is equally well established that A there is no defence of privilege in a case of contempt and although justification and privilege may be good defences in cases of defamation there is nothing in law like justification of privileged contempt.

7. In Israr Hussain v. Crown (P L D 1954 F C 313) their Lordships observed thus:

"It will be noticed that the cases referred to by me while considering the defence of privilege are all cases where a Court was scandalised on an occasion the existence of which was recognized by the law as, for instance, in an application for transfer of a case an application for leave to appeal to a superior Court or the statutory notice to sue a public servant. Despite the fact that there was an occasion to ask for legal redress or relief, it was held that the occasion could not be utilised to defame or scandalise a judicial officer. If the plea of privilege had been a valid defence in the law of contempt, it is obvious that no action for contempt would have been competent in such cases. Both in the Chief Court and before us it seems to have been assumed by the appellant that the law of contempt like the law of defamation recognises justification and privilege as good defences. This assumption is wholly unfounded because there is no such thing in law as justified contempt or privileged contempt and that part of the law of defamation which allows pleas of justification and B privilege, absolute or qualified, to be taken in defence is wholly irrelevant to the law of contempt. I am, therefore, of the view that none of the grounds raised against the conviction can prevail and that the appellant has been rightly found guilty of contempt." Repelling the argument that a scandalous statement in the application for transfer can be a possible defence, the learned Chief Justice observed at page 326 that "there is no law where a party in application for transfer makes wanton, reckless and uncalled for allegations against a Judicial Officer, such allegations are immune from the penalty for contempt merely because they occur in an application for transfer." In The State v. Abdul Gafur (P L D 1963 Dacca 39) it was observed by the learned Chief Justice of that Court that the pleader who had drafted the application for transfer containing the objectionable statements had contended that he had been instructed to that effect by his clients who, in turn, relied on the information alleged to have been received by him from two persons. Their Lordships found that there was shifting of responsibility and there was no point in punishing the two informants but held both the pleader and his client guilty of contempt. They observed at page 46 that:‑-- "We would like to add that lawyers should exercise great care and caution in drafting and pleading in Court an application which contains allegations reflecting upon the integrity of the Court. They owe a duty not merely to their clients but also to the Court of which they are trusted officers. They enjoy a good deal of privilege, and also not an inconsiderable latitude from the Court, in the exercise of their professional duties. Whereas they should boldly and fearlessly advocate the cause of their clients they should remember that it is their paramount duty to maintain the dignity and integrity of the Court itself. It has therefore, been the time honoured tradition of the Bar that it constitutes itself as the staunchest defender against an unjustified attack upon the Court which they are called upon to assist in the administration of justice." This was more strongly expressed in I L R 46 All. 121 a ruling of the Full Bench of that Court in these words:‑ "Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against Judges or the opposite‑parties on the mere wish of their clients. They are not puppets compelled to obey the dictates of their clients where matters of good faith and honourable conduct are concerned. They are responsible to the Court for the fair and honest conduct of a case. They are not mere agents of the man who pays them, but are acting in the administration of justice, and to matters of this kind they are bound to exercise an independent judgment, and to conduct themselves with a sense of personal responsibility. If they fail to act with reasonable care and caution, they are unfit to enjoy the privileges conferred upon them by law, and serious breaches must be visited with punishment." In his written arguments of 45 foolscap pages in addition to what he had submitted orally at the Court, Mr. Nathulal has also urged that these proceedings having not been initiated by the learned Sub‑Judge concerned and the application for contempt, is therefore not maintainable. This is against the accepted position in law. In Aiyer's Law of Contempt of Court (Third Edition 1964), it was opined at page 451 that there is no bar in the presentation of an application purporting to bring a case of contempt of Court to the notice of the Court for taking action C against an alleged contemner or contemners but that this right cannot be misused with malicious intention to cause harm toll others. In A I R 1952 Cal. 919 it was held that:‑ "Although contempt of the High Court is a matte between the Court and the party in contempt, proceedings in contempt must be allowed to be initiated by a motion. made by private parties, because that is one of the ways in which cases of breaches of the Court's orders ma come to the Court's notice. But at the same time, this liberty or privilege of private parties cannot be allowed to be abused and no person can be allowed to arraign others in a proceeding for contempt without exercising due care and responsibility. The High Court is and has always been jealous of its authority in public interest and will always continue to be so. It will regard persons who bring to its notice cases, of violation of its orders as persons who aid the administration of justice." I have already stated that Mr. Nathulal has not examined himself nor stepped into the witness‑box but has chosen to make serious and reckless allegations against several persons in his written arguments, including a personal tirade against Mr. Syed Inayatali the learned counsel who appeared for Haji Adam at whose instance contempt proceedings were initially started.

8. The next point raised by Mr. Nathulal was that the affidavit in question contains a pure and simple narration of certain orders and acts of the learned Sub‑Judge. This is incorrect and without foundation, for, were it so, there would be no occasion for taking proceedings in contempt. It is because the narration has been accompanied by deliberate comments on the Judicial conduct of Judicial Officer couched in highly objectionable language and aggravated by an attribution of serious motives to him that the affidavit in question has become the subject‑matter of contempt. The language is reckless and wanton and has been repeated in the written arguments which could be characterised as an aggravation of contempt committed by Mr. Nathulal.

9. Lastly Mr. Nathulal has contended that mere overflow of words and technical contempt is not punishable and in this respect he has relied on A I R 1943 Lah.

329. This decision is, however, of no assistance to him and merely lays down that the publication tending substantially to create prejudice in the public mind amounts to contempt. It is not possible to agree with Mr. Nathulal that the contents of the affidavit in question do not create such prejudice. The language is clear, unequivocal, deliberate and contemptuous accusing the learned Sub‑Judge of gross misconduct and partiality and favour to the other side and, indeed, of having misconducted himself during the proceedings and of having tempered with and mutilated the application filed by Mrs. Collaco. The affidavit also suggested that there was a mysterious hand working in the case. Certainly all these allegations cannot come within the limits of bona fide criticism. Outspoken words may be actionable but contemptuous remarks E must be condemned and visited with a heavy hand. The dividing line is very thin but those who indulge in this luxury must observe the rules of the game and cannot escape punishment. Motive and intention are irrelevant considerations in a matter of contempt. In a recent ruling The State v. Muhsin Tirmizey (P L D 1964 Lah. 434) their Lordships have observed that a plea of justification is no answer to a charge of contempt and when an attack is made on the impartiality and fair‑mindedness, honesty and integrity of Judicial Officers, it is clearly punishable under the Contempt of Courts Act (XII of 1926).

10. In the result, I accept the recommendation of the learned District Judge, and I hold that both Mrs. Collaco, on her own showing, and Mr. Nathulal, for reasons given earlier, are guilty of contempt of Court and are, therefore, punishable under section 3 of the Contempt of Courts Act.

11. The only question now that remains to be considered is that of the sentence to be imposed in the case of each of the respondents.

12. Mrs. Collaco has appeared before me, and I feel that she has been and is sincerely repentant of her conduct. At a very early stage when notice was issued to her and when the gravity of her conduct was brought to her notice, she offered an explanation, and an unqualified apology. She appears to belong to a respectable family, is an educated person, and is well advanced in years. Her apology and prayer for mercy has been repeated in this Court, and I, therefore, do not consider that sentence of imprisonment is called for, although her allegations against the Civil Judge were no doubt very serious indeed. I, therefore in convicting her under section 3 of the Contempt of Courts Act, sentence her to a fine of Rs. 100, in default to undergo S. I. for one week. The fine must be paid within a week of this date.

13. The case of Mr. Nathulal, is, however, different. He is a senior and experienced member of the Bar, and instead of realising his responsibility and the consequences of his acts and advice, he has argued consistently, and indeed vehemently, as to his position in the matter, which is untenable in law and on facts. I have held that he is the author of, and is responsible, for the allegations made against the learned Civil Judge, and that Mrs. Collaco his client, was led to accepting theses allegations and swearing to them, relying entirely on Mr. Nathulal. Besides, Mr. Nathulal's conduct throughout has been one of attempting to accentuate the contempt once committed. At no stage has Mr. Nathulal shown any repentance or regret for his conduct. As an Officer of this Court, his conduct is reprehensive. Taking all these circumstances into account, I sentence Mr. Nathulal to a fine of Rs. 300, in default of payment of fine to one month's simple imprisonment. Fine to be paid within a week. K.B.A. Reference accepted.