P L D 1952 Sind 1 (PLP)

TYABJI, C. J.‑The two opponents Abdul Aziz and S. Israr Hussain are before us in respondense to notices served upon them on the 28th September 1951 to show cause why they should not be punished for an offence under section 2 of the Contempt of Courts Act XII of 1926 The facts of this matter are as follows :‑ Respondent Israr Hussain is the plaintiff in a suit No. 388 of 1951 now pending in this Court. The advocate engaged by him at first was Mr. Hafiz. An application for a temporary injunction under Order 39, Rules 1 and 2 was made in the suit and an ex‑parte order granting an interim injunction was passed in favour of the plaintiff. The application was fixed for hearing after notice to the defendants on the 13th August. It was adjourned on that date on the ground that a settlement between the parties was likely. When the application came up for hearing again on the 20th August, a request was made to the Court by the parties to visit the site as to dispute related to a house part of which was then under construction, and the Court, Mr. Justice Vellani inspected the site on the 21st August. The plaintiff also applied to the Court on the 21st August for leave to file a further affidavit, for the purpose of the application under order 39 and an order was made that the plaintiff could do so on the condition that the defendants could also file an affidavit in reply within three days thereafter. At the next hearing on the 28th August the plaintiff made an application for being allowed to file further affidavits. As the plaintiff was not able to satisfy the judge that there was justification for such further affidavits, the application was rejected. Respondent Aziz, an advocate of this Court, engaged by respondent Israr Hussain on the 8th September, and he filed four more affidavits with an application made on the 10tr September. This was contrary to the order passed by the Judge on the 28th August. On the next date of hearing, the 19th September, respondent Aziz filed anther application with an affidavit under rule 75 of the rules of this Court in respect of further affidavits, and as the defendants wished to file a counter affidavit before that application under rule 75 was heard, the case was adjourned to the 24th September. What happened on the 24th September, which is the subject‑matter of the case at present before us, was stated by the learned judge in a note made on the 27th September as follows :‑ "On Monday 24th September, 1951, suit No. 388/51 was called up before me as it was on the miscellaneous Board for hearing of applications. When it was called up Mr. Aziz, advocate for the plaintiff, stood up and said he had filed an application under section 25 Civil P. C. for transfer of the case. I asked him whether the application lay before me or before the C. J., but he maintained that it lay before me. I then read the section and the application. I noticed that the affidavit was a long one but did not read it then. Mr. Aziz then stated on enquiry from me that a copy of the application and affidavit had been supplied to Mr. Muham mad Sadiq, advocate for the defendants. Mr. Muhammad Sadiq acknowledged receipt and said the object was to delay the matter and referred to the prayer which appears in the application. He waived notice of the application and I stood the matter over to 1st October 1951. I was not then aware of anything more than that an unusual application had been made and was unaware of the scandalous matter contained in the affidavit which was not then read. The contents of the affidavit have since been brought to my notice and as it contains matter which I consider amounts to contempt of Court, I think it right to bring the matter to the notice of the C. J." On this I ordered that notices should issue to the respondents Israr Hussain and his advocate Aziz to show cause why they should not be punished for contempt. The application made by the respondent Israr Hussain, whole is an advocate of this Court, was as follows:‑ "It is prayed that on the grounds disclosed in the accom panying affidavit, the Hon'ble Court be pleased to make a report to the Provincial Government to transfer the suit herein to any other High Court of Pakistan, for disposal of the application made under Order 39, Rules 1 and 2 Civil P. C." The contents of the affidavit attached to the application were as follows :‑ " I, Syed Israr Hussain son of S. Muhammad Raza, Muslim, aged about 49 years, practising advocate of Karachi, residing over Gulushan Hotel S.R. 7/10, South Napier Road, Karachi, do hereby solemnly declare and affirm as under :‑

1. That I am the plaintiff in the case.

2. That this is a suit filed by me for injunction restrain ing the defendants, their servants or agents from carrying out any construction on the premises occupied by me.

3. That I, a Mohajir and family man having a large family consisting of old and infirm ladies, ailing wife, grown‑up and minor children have been living in the present pre mises for the last three years.

4. That on account of the housing difficulties in Karachi and the above circumstances, the question involved in the suit is almost a question of life and death for me.

5. That during the course of these proceedings, when the compromising talks were going on between my advocates, and the defendant No. 1 and his advocate, the defendant No. 1 in the presence of his advocate had said that he did not care if the plaintiff goes to hell. When I came to know of this talk from my advocate, I protested to the defendant No. 1 and reminded him that he had apologised to me for the mischief done to me, and was prepared to give me alternative accommo dation and now he was talking in that way. On this the defendant No. 1 got wild and threatened me saying that all that matter was gone and that now unless I agreed on taking merely a passage he would have me thrown on the street as the Honourable judge, had been the Legal Adviser of the defendants No. 2 to 8 Abdulla Bhai Muhammad Ali's father, Mr. Muhammad Ali, and that they would arrange every thing here.

6. That without in any way reflecting upon the integrity and honesty of this Hon'ble Court, I submit that considering what had happened before the Hon'ble Court in this matter, that it will be just, convenient and proper that this matter be transferred from the Court of your Lordship.

7. That in this matter the application under Order 39, Rule 2 Civil P. C. came for hearing before the Hon'ble Court and from the beginning the attitude and behaviour of the Hon'ble Court as visible to me was that the Hon'ble Court has not permitted me either to explain my aspect of the case or to even examine the sketch and the inspection report of the lower Court on record.

8. I am practising as an advocate. I have put in a prac tise of about 23 years. Within my information and knowledge of law, there is no provision of law or Court rule which grants a right or liberty to a judge to lose temper and grow hot, make faces and burst into outbursts of anger or to brow‑beat one party. In this matter the learned Judge got angry for reasons better known to him and tried to brow‑beat me and my advocate, Mr. Hafiz. He spoke loud and refused to either understand my aspect of the case, or to even examine the sketch and the inspection report of the lower Court, on record. He stopped and ordered plaintiff to sit down; when my advocate again attempted to put my case, the Hon'ble Court said that it being only the question of passage, the parties should settle it.

9. That on the next hearing, the Hon'ble Court itself suggested that it would see the premises. Accordingly, the Hon'ble Court went to the site but did not note the position of the room, latrine, passage, sewage pipe, etc., as alleged by both the parties in spite of request by the plaintiff's Advocate and on being pressed, the Hon'ble Court remarked that he had not come there to hear the case.

10. That the inspection made in the inspection report regarding the original position of the room is not correct, as according to the inspection note the plaintiff's room extended to 2 or 3 feet of the first pillar, whereas in fact, the said room extended to 2 or 3 feet of the second pillar.

11. That on submission being made for correction, the Hon'ble Court admitted the position taken up by the plaintiff but did not make the necessary correction and left the whole thing on his own memory with the result that the inspection note might be misinterpreted by the defendants or by the appellate Court. In such a case, the plaintiff will have no option but to cite the Hon'ble judge in evidence which will be very difficult.

12. That the defendants' Advocate having once filed a counter affidavit, had no right under Rule 75 of the Chief Court Rules to file a second affidavit but on the suggestion of the Hon'ble Court, the defendants filed another affidavit, consequently the defendants filed another affidavit which was accepted by the Hon'ble Court without entertaining any application from the defendants. Besides the Hon'ble Court did not allow the plaintiff to file a rejoinder to the defendant's second affidavit.

13. Under the circumstances, I got afraid and decided to engage another Advocate and engaged Mr. A. Aziz, and filed four affidavits on 10th September 1951, and gave copies thereof to the defendants' Advocate.

14. That the application under Order 39, Rule 2 and section 145 Civil P. C. again came up for hearing before the Hon'ble Court on 19th September 1951. On taking up the case and seeing the affidavit of the plaintiff, the Hon'ble Court burst into anger and spoke at the top of his voice in an obviously discourteous manner, thereby humiliating and lowering my Advocate, Mr. A. Aziz, in the eyes of his clients and several public sitting there. However Mr. Aziz withstood it with patience and moved the application under Rule 75 C. C. Rules, and the matter was fixed for hearing on 24th September 1951. The Advocates, who were present in the Court at this occasion, will, I am sure, bear testimony to these facts.

15. That considering the threats of Mr. Qamaruddin and the well‑known dictum that justice should not only be done but must also appear to be done, it is submitted that this Hon'ble Court be pleased to report to the Provincial Govern ment for transfer of this matter to some other High Court.

16. That during the course of hearing of this matter, the Hon'ble Court had on several occasions expressed himself in such a manner that it has given me an apprehension that the above matter will be decided against me.

17. That the above statements are of my knowledge." The notice served upon respondent Syed Israr Hussain on the 28th September 1951 was in these terms :‑ "To, S. Israr Hussian, Whereas on 24th September 1951, you being the plaintiff in Suit No. 388 of 1951, presented to the Court an application under section 25 Civil P. C. with an affidavit sworn by you, a copy of which is attached hereto. And whereas it appears that the said affidavit contains matter scandalising a judge of the Chief Court, and calculated to prejudice the trial of the suit and lower and bring into contempt the authority of the judges of this Court and the Chief Court, And whereas the Court has ordered that notice be issued to you to show cause why you should not be punished for an offence under section 2 of the Contempt of Courts Act, 1926, You are hereby required to appear before this Court on 15th October 1951 at 10 a.m. and show cause why you should not be punished for the offence afore‑mentioned. Given under my hand and the seal of the Court this 28th day of September 1951. By Order (Sd.) Registrar." A somewhat similar notice was served upon respondent Abdul Aziz which however it is not necessary to set out here. When this matter came up for hearing before us on the 20th October respondents Abdul Aziz and Israr Hussain each filed an affidavit. In his affidavit respondent Abdul Aziz stated inter alia as follows :‑ "

1. The plaintiff in Suit No. 388 of 1951, namely. Mr. S. Israr Hussain, is a senior Advocate. The plaint was filed through Mr. Hafeez Advocate. I first appeared in the case in Court on 19th September 1951 when it was adjourned to 24th September 1951. On that day the Suit was fixed for disposal of applications made under Order 1, Rule 10 and Order 39, Rule 2 Civil P. C. I arrived in Court on that day after 12 noon just about two or three minutes before the above suit was called up. The plaintiff was personally attending to the case.

2. Before I arrived, the plaintiff had already filed applica tion under section 25 Civil P. C. and his own affidavit. I had neither drafted the application nor the affidavit nor had I seen them before. The plaintiff himself filed them without showing them to me.

3. The application under section 25 Civil P. C. was signed by the plaintiff personally. It was not signed by me. Both the application and the affidavit were also filed by the plaintiff at a time when I was not present in the Court. It was neither presented by me nor did I move the same.

4. As soon as I came into the Court room, the plaintiff met me and handed to me copies of application and affidavit saying that he had filed an application under section

25. Civil P. C. for the transfer of the case. At that time I did not know the import of section 25 Civil P. C. and therefore took up a copy of Civil Procedure Code and proceeded to see what the provisions of section 25 Civil P. C. were.

5. While I was reading the section, the case was called up. The learned judge then read the application under section 25 Civil P. C. The Hon'ble Mr. Justice Vellani, after reading the application, asked me if such an application could be made before him. The Hon'ble Judge then took up a copy of Civil Procedure Code himself and proceeded to read the section. I also began to read the section. After reading the section I only submitted to the Court that an application under section 25 Civil P. C. could lie before him. The Hon'ble judge than postponed the case to 1st October 1951. I addressed the Court respectfully.

6. I say that as a matter of fact I had not read either the application or the affidavit up till then. I say further that even the Serishtedar of the Court of Mr.. Justice Vellani will bear me out that the application and affidavit in the above‑mentioned suit were presented personally by the plaintiff MT. S. Israr Hussain and at a time when I was not even present in Court". There is no reason for not accepting this explanation given by respondent Abdul Aziz, and under the circumstances we think that the notice against him ought to be discharged. It is unnecessary to say anything further with regard to the case of respondent Abdul Aziz. Respondent Israr Hussain filed the following affidavit which was presented to this Court at the time of the hearing on the 20th October :‑ " I, Syed Israr Hussain, son of Syed Muhammad Raza Muslim, Adult, aged 49 years, Advocate, state on solemn affirmation as under :‑

1. That I am the respondent in the above matter.

2. That I have been served with a notice calling upon me to show cause why I should not be punished under section 2 of the Contempt of Courts Act having regard to an application under section 25 Civil P. C. for transfer of Suit No. 388/51.

3. That I have not committed Contempt of Court by making the said application and I had no intention to do so.

4. That the said .application was made in the ordinary course of proceedings in the case and was made to the Judge' concerned because there is no other provision of law except section 25 Civil Procedure Code under which a transfer application can be made from the Court presided over by a single Judge' or this Hon'ble Court.

5. That I beg to submit that it was no part of my intention to cast any reflection upon the conduct of the judge concerned or to lower and bring into contempt the authority of the judges of this Court or the authority of the Chief Court.

6. That, in any case, the notice is vague and bad in law, and does not specify any particulars or ground.

7. It. is denied that there was intention to prejudice , the trial of the case or the words used are calculated to do so or in fact any prejudice has been caused." The learned Advocate‑General contended before us that the contents of the affidavit were of such a character that the presentation of it to the Court necessarily was an act cal culated to bring this Court and a judge of this Court into con tempt. It was clearly suggested in paragraph 5 of the affidavit that because the learned judge had been the legal adviser of the father of defendants 2 to 8, the defendants would be able to "arrange, everything here." It was clearly alleged in paragraph 7 that it was on that account that the judge had not permitted the respondent to explain his aspect of the case. The language used in paragraph 8 was of a most vulgar and offensive character clearly intended to offend and insult the judge. These passages read together with the first tw6 sentences of para graph 14 and paragraph 16 made. it clear that the respondent intended to insult the judge by the use of very offensive words, and the whole affidavit is pervaded with the suggestion that the judge had acted dishonestly out of an improper interest in defendants 2 to

8. It is only right to mention here. that there was no truth at all in the allegation that Mr. Justice Vellani had ever acted as the legal adviser of the father of defendants 2 to

8. This fact was pointed out by Mr. Justice Vellani and was immediately accepted by Mr. Suhrawardy, the learned counsel, who appeared on behalf of the respon dent Israr Hussain. The learned Advocate‑General further contended that the application under section 25 was not a bona fide application made with a view to obtain a transfer of the suit, as the respondent Israr Hussain, who is an advocate of long stand ind knew and must have known very well chat no such appli cation under that section could at all be maintained. The learned Advocate‑General argued that the whole object of the respondent in making that application was to make it a means for vilifying and insulting the judge, which was the main object of making the application. The Advocate‑General further emphasised that no one intending to make a bona fide application for transfer under section 25, assuming that he did believe that an application of that sort was maintain able, would have said the things and used the language, which the respondent actually used in the affidavit. Mr. Suhrawardy, the learned counsel who appeared on behalf of respondent Israr Hussain, argued before us that the Contempt of Courts Act 192b did not apply at all, and that the notice served upon the respondent did not give him sufficient notice of the charge made against him. He further argued that an application of the sort actually made was maintainable under section 25 of the Civil Procedure Code He argued that in any case the respondent was bona fide of the view that such an application was maintainable. The learned counsel argued further that the statements made by the res pondent were entirely privileged. He argued that the respondent in fact had no intention either to scandalise the Court or to insult the judge, and he finally argued that in any case this was not a case in which this Court should punish the respondent. The two legal objections first referred to may be disposed of in a few sentences. Mr. Suhrawardy argued that as the contempt of Courts Act was passed in 1926 when this Court was not a Chief Court, the Act could not apply to this Court after it became a Chief Court in 1940. Mr. Suhrawardy did not dispute the fact that the Act does apply to Chief Courts and that this Court at the moment is a Chief Court. It is unnecessary to say anything further on the point. Further it is difficult to see how the argument that the Contempt of Courts Act did not apply to this Court could possibly help the respondent. If it was really the case that the Contempt of Courts Act did not apply, far from helping the respondent the position should be otherwise, because as a Court of Record, which this Court undoubtedly is, it would have the inherent power to punish contempts of itself, and the only result of holding that the Contempt of Courts Act did not apply would be that it would be open to this Court to punish the respondent to an ultimate extent, without the limitation which is contained in section 3 of the Act. There is also no substance in the contention that the respondent did not have sufficient notice of what exactly he is charged with: The notice served upon the respondent has already been set out above. It was clearly stated in that notice that the affidavit which the respondent presented to the Court on the 24th September contained matter which made its presentation a contempt. I cannot see how, under the circumstances, it can be said that he was not given sufficient notice of what exactly he was charged with. There can be no doubt at all, I think, that the application made by the respondent under section 25 Criminal P. C. was not maintainable. That section provides for the transfer of a case under certain circumstances from 'a High Court presided over by a Single Judge to " any other High Court". It seems to me to be quite clear that the words " a High Court presided over by a single judge "refer in the contest to a High Court which consists of only one judge, such as, for instance, the Court of the Judicial Commissioner, Quetta. There have been several such High Courts. It is perfectly clear that there is no provision of the law by which a case can be transferred from one Judge of a High Court to another judge of the same High Court at the instance of parties after a judicial hearing on such grounds and in such manner as cases are transferred for instance under section 24 of the Civil Procedure Code or section 526 of the Criminal Procedure Code. It was stated by Marten, J. in Jathabai Versey v. Amarchand Madhavji, A I R 1924 Bom. 90, at page 97: " But I am satisfied that the section' (Section 25 Civil P. C.) does hot apply or at any rate should not be confined to objection to a particular judge personally, e.g., that previously, while at the bar, he has advised one of the parties. In such a case all difficulty would be met by the case being tried before another Judge of the same High Court. Consequently the objection in question must I think apply to the High Court as a whole ". A suit pending before one judge of this Court, which is a High Court consisting of more than one judge, can be transferred to another Judge by the Chief judge acting in his administrative capacity, as the person responsible for the distribution of the business of the Court, acting under Rule 11 of the Rules of this Court original side, which says :‑ " All suits and proceedings instituted on any of the several sides of the Civil Original Jurisdiction of the Chief Court, shall be heard before the Chief judge or such judge or judges as the Chief Judge shall from time to time nominate for that purpose." Respondent Israr Hussain, who has long experience of practi sing as an advocate at the Bar, must have known and ought to have known this. It may be pointed out here that the position in this State in this respect is very similar to the position in England. A reference to Order 49 of the Rules of the Supreme Court will show that a cause or matter may at any stage be transferred from one Division to another by an order of the Lord‑ Chancellor but only with the consent of the President of the Division, and from one group to another by the senior Judge of the group to which the cause or matter was assigned but only with the consent of the Senior Judge of the group to which the matter was to be transferred. It is the Senior Judge who distributes the work within the group. Rule 11 is constantly being applied. Cases are removed from the file of one judge to another by general instructions given by the Chief Judge. Sometimes cases are transferred from the file of one Judge to that of another at the request of the Judge. Very occasionally such transfers are made by the Chief Judge at the instance of the parties, but transfers of this character are always made as administrative acts. As in England so in this State there is no authority which can trans fer a case from the file of one Judge in this Court to any other Court without the consent of the Chief judge of this Court. I find it almost impossible to believe that in this case the respondent Israr Hussain did not know that the application made by him was on the face of it not maintainable. I am, however, willing to assume for the purposes of this matter that he was really as ignorant and mistaken as he professes to be. On the facts of this case I do not think that that would make the slightest difference, because it is not merely the legal objection to the maintainability of the application which can be pointed to for showing that the application was not a bona fide one. It seems to me that the contents of the affidavit filed with the application are such as make it impossible for me to accept the view that the allegation that the affidavit was made bona fide. I cannot imagine anybody saying the things stated in the affidavit and in the manner in which they are stated unless his intention was to cause offence and to insult the Court. Further, it is quite clear that the learned Judge had acted dishonestly because he had been the legal adviser of the father of defendants 2 to 8 was a scandalous allegation the making of which was clearly gross contempt. Mr. Suhrawardy argued that the statements made in the affidavit having been made by a party to a suit for the purposes of a transfer application were entirely privileged, even though they may be such as would otherwise amount to a contempt. He has not been able to show us any authority at all for this proposition. and it seems to me to be clear that the law in fact is to the contrary. Mr. Suhrawardy referred us to four cases decided by the Allahabad High Court : Abdullah Khan's case, (1898) A W N 145, Murlidhar's case, (I L R 38 All. 284, Salag Rams case, (A I R 1937 All. 171), and Narotam Dass' case, (A I R 1943 All. 97): With the excep tion of Salag Ram's case all these were cases of convictions under section 228 of the Indian Penal Code, and the principal question in every one of these cases was whether it had been established that the offender had in fact intentionally insulted the Court. The cases turned essentially upon the question of fact as to what the real and dominant intention of the offender was. There is nothing whatever in any of these cases which supports the proposition that any party can under any circumstances claim to be entitled to make statements scandalising the Court, or use disrespectful language for the purpose of insulting the Court with impunity. As the decision in Narotam Dass' case is the latest of these cases, and may be taken as representing the Allahbad view on the matter, a few extracts from the judgment of Yorke J. may be cited here. He stated : "It must, I think, be a matter for consideration in each individual case. how insulting the expressions used are and whether there was any necessity for the applicant to make use of those expressions in the application which he was actually making to the Court." "In cases where the words used and the absence of necessity for including insulting suggestions in an application clearly suggests that there was an intention to insult the Court, I do not think it wise for the Courts to pass over such actions in silence". In this connection I may also refer to the decision in : In the, matter of Tulsidas Amanmal Karani, I. L. R: 1941 Bom. 548, in which it was argued before the Bench that the state ments made by the opponent could not be held to amount to a contempt because they were made by the opponent who in tended to file a suit in a notice under section 80 of the Civil Procedure Code. It was pointed out that there was no autho rity for any such argument, and that the fact that the offender intended to file a suit did not entitle him to insult arid vilify the Judge with impunity. A reference may also be made here to the decision of the Privy Council in In re Wallace, (1866) L. R. I. P. C.

283. Wallace, who was a party to several cases in the Supreme Court of Nova Scotia, wrote a letter to the Chief justice reflecting on the judges and on the administration of justice generally in that Court, The Supreme. Court held that Wallace had been guilty of contempt, and in spite of a very full apology which had been tendered by Wallace, who was an advocate and a practising attorney in the Court, sus pended him from practising in the Court for a" period. The Privy Council agreed with the decision of the Supreme Court that Wallace had been guilty of contempt and stated in their judgment that the contempt committed was of such a kind that it was hardly possible for the Court to omit to take notice of it. They, however, held that the order passed by the Supreme Court suspending the offender from practicing was not an order which could be passed in the matter, and that the proper order would have been to imprison him or fine him. There can, I think, be no doubt whatever as to what the real position is. Parties and their advocates have the right to press their cases before the Courts, to urge everything that can legitimately and properly be urged with all the force that they can. They are entitled to combat and contest, strongly and in an outspoken manner, any expression of adverse views that may be expressed by any judge during the course of an argu ment, and protest against any course that the judge may pro pose to take. But they must always and under all circumstances do so with respect. They are never entitled to go beyond the bounds of propriety and courtesy. They have to bear in mind that disrespect to the dignity and 'the authority of the Court to, the majesty of the law, can never be tolerated. Under no circumstances can a party or an advocate claim to be entitled to use disrespectful language to a judge, and much, less to insult or vilify him or to attribute judicial dishonesty or improper motives to him, which must necessarily bring the Court and its authority into contempt. The right atmosphere, in which alone the business of the Courts can be done properly, must be maintained. The question whether the con tempt committed in any particular case was of a kind of which serious notice ought to be taken is an entirely different question, often depending upon a variety of considerations. The principle de minimis non curat lex is perhaps more often applied to cases of contempt than to offences of any other kind. There are very many cases where the question is not so much whether technically a contempt had been committed but whether the offence was of such a kind as to call for serious notice. In Parashuram Detaram Shamdasani v. Emperor A I R (1945) P. C. 134, Their Lordships of the Privy Council stated : "Their Lordships would once again emphasise what has often been said before, that this summary power of punish ing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of neces sity possess ; its usefulness depends on the wisdom and res traint with which it is exercised .................. Corning to the facts of this particulr case, I find impos sible to hold that the respondent Israr Hussain did not have the intention to scandalise and insult the Court. It has to be noticed that the language used by the respondent was not used in a momentary fit of anger, when he had lost his self‑control. The statements were made in an affidavit which was carefully drafted, typed, sworn and presented to the Court. It has already been mentioned before that on the previous hearing, on the 19th September, the case had been adjourned to the 24th. It was at this hearing on the 24th that the respondent presented the application and affidavit. The respondent states that he did not even consult his Advocate, Mr. Aziz, before filing the application and the affidavit. The fact that Mr. Aziz and the respondent Israr Hussain both state that the appli cation and the affidavit were prepared and were presented by the respondent Israr Hussain without consulting Mr. Aziz is on any view of the matter a very significant fact. This is clearly an extremely serious case of contempt, which in my view ought not to be passed over without condign punishment. It fray be mentioned here that after the hearing of this case was practically over, on the 23rd October, Mr. Suhrawardy handed in an affidavit sworn by the respondent, which was not even read to us except for the very last para graph of it, which contains the following : "That without prejudice to the above the respondent expresses regret for such language in the transfer application as may be capable of being construed as disrespectful which I did not‑intend." I do not think that the making of an apology in such terms and at that stage can be regarded as an apology to which very much weight should be attached as a mitigating circumstance. Taking all the facts of the case into consideration and everything that has been urged before us, I would convict the respondent Israr Hussain under section 2 of the Contempt of Courts Act and sentence him to simple imprisonment for one month. CONSTANTINE, J.‑S. Israr Hussian, a lawyer of 23 years' standing, was plaintiff in a suit in which he obtained an ex parte interim injunction from a judge of this Court: Mr. Justice Vellani to whom miscellaneous matters had been assigned took up the hearing of the matter in the ordinary course, the ques tion being whether the interim injunction should be confirmed or not. Mr. Hafeez first acted as Mr. Israr's advocate, but on the 8th September 1951 Mr. Aziz was engaged by Mr. Israr. On the 24th September an application purporting to be made under section 25 Civil P. C. accompanied by Mr. Israr's affidavit was handed not by Mr. Aziz but by Mr. Israr to the Court's Serishtedar. The affidavit was not read by the learned judge on the 24th as the hearing of the application which required considera tion by the opponent, was at once adjourned. On the 27th the learned judge came to know of the contents of the affidavit. It is Mr. Aziz's case that both this application and the affidavit were made without his knowledge. The learned Advocate‑General states that he cannot con tradict. Mr. Aziz's statement, and that being so, contempt of Court on the part of Mr. Aziz has not been proved. It is the case of Mr. Israr, strenuously argued by Mr. Suhrawardy, that nothing in the application and affidavit amounted to contempt of Court. The affidavit and the notice have been set out in the judgment of my Lord the Chief Judge. Mr. Suhrawrady contended that the notice did not con tain sufficient particulars to satisfy the requirements of a trial for contempt, being a criminal matter. This is however a sum mary matter, and the learned Advocate‑General and the Hon'ble the Chief Judge pointed out the objectionable‑ matter to Mr. Suhrawardy. The‑passage from the words "to lose temper" down to the words "put my case", the passage in paragraph 14, "his voice in an obviously dicourteous manner, thereby humiliating and lowering my advocate" appear scandalous per se. Furthermore in deciding whether the affidavit does or does not scandalise the judge, not merely particular remarks, but the whole nature and tendency of the affidavit is to be considered. The substance of the affidavit may be summarised as follows :‑ Defendant 1 had said he would be able to arrange matters because the learned judge had been the legal adviser of the father of defendants 2 and 8 and this statement represented a sudden volta face on the part of defendant

1. The applicant did not reflect on the integrity and honesty of the Honourable Court, but the happenings in Court were such that a transfer was just, convenient and proper. The Court had consistently brow‑beaten both his advocates, had refused to understand his case, had left despite protest, an incorrect sketch on record, and had shown in the matter of filing affidavits favour to the defendant contrary to Rule 75 in contrast with severity to the plaintiff. Lastly, it was suggested that the Judge had thus created an appearance that justice would not be done by him to the plaintiff. The affidavit to my mind insinuates that the Judge's con duct is due to partiality to the defendant's side since he had previously been adviser to the father of seven of the defen dants. If the tribute to the judge's integrity and honesty was sincere, the reference to the statement of the defendant 1 was out of place. Moreover the innuendo is supported by the words "for reasons better known to him." Even without this innuendo, the affidavit scandalises the judge for its effect is that the judge has shown bias against the plaintiff, inconsistent with judicial propriety and duty, to such an extent and so unjustifiable that Justice cannot be expected from him. Such a statement must necessarily bring the judge into contempt and lower his authority' within the meaning of Lord Russel's classic words in R. v. Grey, 1900 2 Q. B. D.

36. Mr. Suhrawardy stated that the truth or falsity of the scandalous matter could not be canvassed in proceedings for contempt and the learned Public Prosecutor agreed with this opinion. It is true that there are cases to this effect, but on this point I would express no opinion. As matters stand, the present case has been argued on the footing that the truth or falsity of the allegations was irrelevant. Mr. Suhrawardy contended that privilege attaches to a transfer application in that allegations made against a judge in order to secure a transfer of a case from him are protected. There are it is true rulings which state that allegations made to a Court in an application for adjournment constitute con tempt; since the allegations need not be made in the applica tion for adjournment, but only in the application for transfer. Assuming, however, without deciding, that privileges attaches to a transfer application, I conceive that it attaches to a trans fer application only if the transfer application lies according to law. "(Cf In re Tulsidas Karani, A I R 1941 Bom. 228). Mr. Suharwardy argues that the words "presided' over by a single judge" in section 25 Civil P. C. refer to the word "case" and not "Court"; in other words pending in a High Court and should be read as if, inserted between commas or brackets. The ordinary rule of grammar is that an adjectival clause refers to the noun immediately preceding it. The second objection to Mr. Suhrawardy's argument is that to my mind at least it appears absurd that a case exhypothesi triable by a single judge of a High Court should not be transferable to another judge of the same High Court, but must be transferred to another High Court. I think it obvious that the section contemplates only cases where a High Court (which term in section 25 included Chief Courts, and Courts of Judicial Com missioners) consists of a single judge and where for this reason transfer of a proceeding cannot be made to another judge of the same Court, but can be made only to another Court. To the argument that no provision for transfer from a single judge to another Judge exists and therefore section 25 must‑ be used, the answer is that Rule 11 of this Court's Original Side rules empowered the Chief judge to nominate judges from time to time for the hearing of matters, and this power includes the power of transfer in individual cases. Both Mr.Suhrawardy and the Public Prosecutor have relied upon Marten J.'s remark, in Jethabai v. Amarchand, A I R 1924 Bom. 90, Mr. Suhrawardy in respect of the assumption by the learned Judge that section 25 applies to a High Court consisting of several judges, and the Public Prosecutor in respect of the remarks that the section does not apply to reasons peculiar to a single Judge since this case could be met by transfer to another Judge of the same Court. The remarks were confes sedly obiter, and it would, with all respect to Marten, J., be out of place to rely on obiter remarks passed in a matter of first impression, in discussing a section on which the defendant's advocate did not rely. Mr. Suhrawardy argued that his client had no intention of scandalising the learned judge. I can see no foundation for this argument : an affidavit is a solemn document, and not the work of an unconsidered and hasty moment. The usual pre sumption is that a man intends the natural consequences of his act, and I see no reason to displace that presumption, whether his client's motive was to secure a transfer rather than scanda lise is a different question, but even on this point of motive, speaking for myself I consider, as the learned Advocate‑General argued, that section 25 Civil P. C. is so clearly inapplicable that this lawyer of 23 years standing knew that his application must fail ; the probable inference is that his object was to scandalise the judge, secondly the accused made this application and affidavit without consulting his counsel; such conduct is more consistent with knowledge that the counsel would refuse to associate himself with a scandalous application than with an xiety to have the best advice and help in prosecuting a suit, which the accused has said was a matter of life and death to him. Thirdly, the language used is not sober and restrained. Mr. Suhrawardy finally argued that our learned brother should have overlooked the matter. I do not agree that this was a slight matter. Moreover this matter found its way into the press ; there is nothing on record to show that the applicant was responsible for publication, but when a matter of contempt does not appear in the press it assumes a graver aspect. In the case in re. S. B. Sarbadhicary, 29 All. 95‑34 I. A, 41 their Lordships of the Privy Council said : " it is essential to the proper administration of justice that unwarrantable attacks should not be made with impunity upon Judges in their public capacity." The applicant has apologised for " such language in the transfer application as may be capable of being construed as disrespectful which I did nor mean." This apology is in truth no apology ; it extends only to the language and to the sub stance of the affidavit, and it is the .substance of the affidavit which constitutes the serious contempt in this case. This deliberate attack upon the impartiality of a judge of this Court deserves more than a nominal sentence. I therefore agree with the sentence proposed by the Honourable the Chief Judge. VELLANI, J.‑I concur. MUHAMMAD BACHAL, J.‑I concur. MUHAMMAD BAKHSH, J.‑I concur. A. H. Respondent 2 convicted.