1. The respondent in Contempt Application No. 157 of 1990 has preferred this appeal against an order passed in Sub Application No. 230 of 1990 in which learned trial Judge has directed that the first defendant in C.S. No. 481 of 1990 continues to be the President of the Indian Olympic Association and the resolutions, if any, purported to have been passed appointing the appellant as President of the Indian Olympic Association would be of no legal consequence and would have no legal effect and the office premises of the Indian Olympic Association be restored by him to the first defendant in the suit.
2. The Tamil Nadu Olympic Association represented by its General Secretary, the second plaintiff, who has also been the Joint Secretary of the Indian Olympic Association, has filed the suit impleading the first defendant described as the President of the Indian Olympic Association and the second defendant described as the Secretary General of the Indian Olympic Association and alleging that the Association is a Society registered under the Societies Registration Act having its office at New Delhi. The members of the Association consist of National Sports Federations/Associations whose sport is included in the Olympic/Asian or Commonwealth Games, National Sports Federations/Associations which represent widely played Indian sports recognised by the Association, Olympic Associations of States as well as centrally administered Union Territories, service Sports Central Boards and Indian citizens who are member of the Olympic Committee. The Association has its own constitution containing the Memorandum of Association and Rules and Regulations which is the binding contract between the members of the Association. The management of the Association is entrusted to the Executive Council constituted under the Rules. Article VII of the Constitution provides that election would be held once in four years at the Annual General Meeting to elect the Executive Council Members from amongst the representatives of the members present and that an officebearer of the Association would hold office as such for one term of four years on obtaining simple majority votes in the election. In the election held on 27-11-1988 at Park Sheraton Hotel, Madras, the first defendant was elected as the President and the second defendant was elected as the Secretary General and in addition as provided under Article VII above, Executive Council Members were also selected and,
"including the two I.O.C. representatives, there are now 39 members of the Executive council with whom the administration of I.O.A. is entrusted under the provisions of the I.O.A. Constitution."
3. On 16-5-1990 however a notice was served in the office of the President of the Association stating,
"Notice is hereby given that a Requisitioned Special General Assembly Meeting of the Indian Olympic Association under Article VI of the constitution of the I.O.A. be convened at New Delhi, the head quarters of the I.O.A. within one month from the date of receipt of this letter.
2. As required under Article VI of the Constitution the requisition has been signed both by the President and Secretary General of 17 affiliated units of the I.O.A. Their list is at Annexure I which is accompanied by the letters signed by them giving notice for the requisitioned meeting. In addition 7 Presidents/Secretary Generals of the affiliated units have also signed the tetter requisitioning the meeting. Their list is at Annexure 11 accompanied by the letters signed.
3. The Agenda for the aforesaid requisitioned meeting will be to consider and pass the following resolution and to take consequential action thereof:
"Resolved that this house has lost confidence in the present Executive Council of the Indian Olympic Association and to Elect no Executive Council."
4. In case you fail to convene the said requisitioned meeting at New Delhi within the specified period, the requisitionists shall hold the said meeting on 16th June 1990 or on any day thereafter at National Stadium, New Delhi to consider the above noted item of the Agenda."
4. The Executive Council according to the plaint, at a meeting held on 28-5-1990 decided that in view of certain facts (alleged in the plaint) the Special General Meeting could not be convened. Yet, by a notice issued on 28-5-1990, the first defendant convened a Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel at Madras to consider and pass the following resolution as required by the requisitionists.
"Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect New Executive Council leaving the legality of the requisition to be decided by the General Assembly. The plaintiffs have not only sought a declaration that the notice dated 28-5-1990 issued by the first and second defendants on the basis of the requisition notices convening the Special General Meeting of the Indian Olympic Association on 15-6-1990 is illegal, null and void, but also a consequential injunction restraining the defendants from convening and conducting the Special General Meeting on the said date or on any other day at any other place and from considering and taking decision on the resolution mentioned in the notice. The plaintiffs have also filed an affidavit and application in the said suit seeking an order of injunction restraining the defendants from convening and holding a Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel, Madras or on any day at any place and from considering and taking any decision on the resolution mentioned in the notice dated 28-5-1990. In this affidavit, the second plaintiff K. Murugan stated,
"I understand from the report published in Newspapers that the I.O.A. represented by the Secretary General filed a suit in the Delhi High Court for restraining the rival meeting convened by the rcquisitionists on 15-6-1990 at Delhi for considering the same resolution and the said High Court has granted an injunction and also appointed an observer for the Madras Meeting. The validity and legality of the Madras Meeting is not the subject matter in that suit. Further we are not parties to that suit. Hence I submit that the said order which has not considered the validity of the Madras Meeting is not binding on any of us. In addition the said suit has been filed without any authority of the General Assembly,"
"I submit that the object granting the injunction would be defeated by the delay if notice is to be ordered, since the defendants would try to evade notice, we undertake to coming with the provision of 0.39, R. 3, I.P.C. immediately,"
5. The suit and the application for interim injunction were filed on 11-6-1990 and the Judge's Summons under Order 14 Rule 8 of the O.S. Rules read with Order 39 Rules 1 and 2 and S. 151 of the Code of Civil Procedure were handed over to the learned Counsel for the plaintiffs on the same day.
6. A further affidavit was filed by Thiru Murugan on behalf of the plaintiffs on 14-6-1990 in which it was stated that they had filed the suit for a declaration that the meeting notice issued by the first defendant in pursuance of the requisition letters given by some member units of the Association was null and void and illegal and for a permanent injunction restraining the defendants from convening and conducting a Special General Meeting of the Association on 15-6-1990 at Park Sheraton Hotel, Madras on or any day or place and that they had filed an application seeking for interim injunction restraining the defendants from convening and conducting the said meeting on 15th June.
"Since the Hon'ble Court was re-opened after summer holidays on 11 th only we could not file the suit and the application earlier and seek for interim orders,"
"I submit that if this Hon'ble Court is not inclined to grant the interim order of injunction restraining the holding of the Special General Meeting for any reason, I pray that this Hon'ble Court may be pleased to order that the resolution viz.,
"Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect new Executive Council."
shall be passed in the Special General meeting of the IOA to be held on 15th June 1990 at 12.15 p.m. at Park Sheraton Hotel, Madras by secret ballot only and that the IOA President shall preside over the said meeting."
On that very day Learned Trial Judge ordered for Judge's summons under Order 14 Rule 8 of the O. S. Rules read with S. 151 of the Code of Civil Procedure and handed over the same to the learned counsel for the plaintiffs. This time it said, why the Court be not pleased to order that the resolution mentioned in the meeting notice dated 28-5-1990 issued by the defendants be passed in the Special General Meeting of the Association to be held on 15-6-1990 by secret ballot only and that the first defendant would preside over in the said meeting and it seems, the defendants entered appearance and the Court ordered,
"Both applications were heard. It was admitted by the learned Senior Counsel Mr. R. Krishnamurthy, appearing for R1/D1 that the meeting has been convened to be held on 15-6-90 and almost all the persons had come to Madras and in asmuch as it has been submitted in Appln. No. 2593/90 that in the event of the meeting being held and this Court not granting stay of the Special General Meeting to be held on 15-6-1990 at Madras, proper direction may be issued for voting by secret ballot with regard to the resolution. It is to be seen in a suit filed in the Delhi High Court, it appears the learned Judge of the Delhi High Court held that the meeting convened OP the basis of the requisition was not valid but an order had been passed appointing an observer for the meeting to be held on 15-6-1990 herein. As submitted by the Learned Senior Counsel for R1, quite likely all the persons, concerned could have come here and inasmuch as this applicant/plaintiff has filed Application No. 2593/90 seeking for voting by secret ballot, I feel that there need not be any order of stay or injunction restraining the respondent from convening or holding the Special General Meeting, but there could be an order directing resolution mentioned in the Meeting Notice to be put to vote by secret ballot, and inasmuch as the observer is also appointed by the learned Judge of the Delhi High Court, I feel that the ballot papers or voting papers that are being issued to the voting persons could be signed before issue by the R1 who is the Secretary of the Association as well as the observer appointed by the Delhi High Court and only such ballot papers or voting papers signed by the Secretary of the Association and the observer are held to be valid. The meeting convened as scheduled on 15-6-1990 is to be presided over by R1 who is the President. Ordered accordingly.
6A. In the contempt application, on affidavit Thiru Murugan has alleged that on 15-6-1990 all the member representatives numbering 124 assembled at the meeting hall at 12-15 p.m. and the meeting commenced as scheduled and the respondent/ appellant herein however barged into the meeting hall with about 100 outsiders shouting that Sri B. S. Adityan, the President should not preside over the meeting and,
"The President informed the members about the orders issued by this Hon'ble Court and the Delhi High Court. The observer also read out order of this Hon'ble High Court and said that the members must abide by the order.
The respondent and his men shouted that there will be voting only by show of hands and they rushed towards the chairs occupied by the President, Secretary General and the Observer. The said persons placed two chairs near the President and the respondent occupied the same and declared that the resolution of No Confidence has been passed and he has been elected as the President of I.O.A. When Sri B. S, Adityan instructed the officials of I.O.A. to issue the ballot papers the respondent instigated his supporters to go and seize the papers.
Apprehending violence the President Sri. B. S. Adityan gave a request to the Commissioner of Police for a bandobust for peaceful voting. The President, Secretary General, the observer and the members including the respondent and they were sitting in the Meeting Hall till 4-30 p.m. In response to the request of the President, the Police Officers came to the Meeting Hall and stood guard for the ballot papers and the ballot box. Thereafter the officials started issuing the ballot papers signed by the Secretary General and the observer. As soon as a few votes were polled at the instigation of the respondent his supporters rushed towards the Observer and the President and the ballot box and iried to assault the President and the Observer and snatched away the ballot box and the ballot paper box. The Police Officers pushed away the miscreants. One of the respondent's men assaulted an Assistant Commissioner of Police who was standing as guard to the observer.
Fearing further violence the Police Officer requested the Observer to go to a safer place outside the hall. Pandemonium prevailed and in order to avert unpleasant occurrences the President adjourned the meeting slating that further date will be announced after obtaining orders from Court since the convenience of the observer has to be ascertained.
The news reporters who were present from the morning and who were witnessing the unruly behaviour of the respondent and his group have reported about all these facts in the newspapers.
The respondent has now given a statement to the Press that the resolution of No Confidence motion has been passed by majority of votes by show of hands and that he has been elected as President."
7. In the sub-applications filed in the contempt application, it is stated that the order of this Court would stand violated and any such person who is guilty of violating an order or abetting the violation of such order would also be guilty of contempt of this Court if.
"(1) The Special General Meeting were to be held other than under the Chairmanship of the President of the Indian Olympic Association Thiru B. S. Adityam,
(2) The voting were to take place at such Special General Meeting other than by secret ballot; or
(3) If the ballot papers, in case a ballot were to be taken, were not signed both by Thiru Radhir Singh, Secretary General, Indian Olympic Association as well as Thiru Avadh Behari Rohatgi, former Judge of the Delhi High Court and observer appointed by the Delhi High Court in the Special General Meeting to be held on 15-6-1990 at Madras."
It is submitted,
(i) That outsiders other than members of the Indian Olympic Association were present inside the meeting hall where the requisitioned meeting was taking place;
(ii) That entry to these outsiders was denied by the members of the Indian Olympic Association posted at the entrance door of the hall but by reason of Thiru V. C. Shukla shouting to these members and asserting himself under cloak of his status as a Member of Parliament and a former President of the Indian Olympic Association the outsiders brought by him gained entry into the meeting hall.
(iii) That Shri Avadh Behari Rohtagi, former Judge of this Hon'ble Court and Observer read out the order of this Hon'ble Court in CMP No. 6953 of 1990 to the entire assembly before commencing voting by secret ballot.
(iv) That this Hon'ble Court's order required the poll to be conducted through secret ballot but Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh and persons who are outsiders pounced on Thiru Avadh Behari Rohtagi, former judge of the Delhi High Court and assaulted him, tore off the ballot papers, took away the ballot boxes and prevented this Hon'ble Court's order from being implemented.
(v) That thereafter the meeting was adjourned by (he President of the Indian Olympic Association who had been directed to Chair the meeting by this Hon'ble Court and whose adjournment therefore would bind the members present at the Special General Meeting, but however Thiru V. C. Shukla today claims that he had held a meeting at which he had been elected President of the Indian Olympic Association. 1( would follow that any such meeting held by him without its being chaired by Thiru B. S. Adityan, the President of the I.O.A. and after Thiru B. S. Adityan, President I.O.A. had adjourned the meeting would be in total violation of the order of this Hon'ble Court.
(vi) To the extent that the so called meeting was not even purported to have been held by the procedure of secret ballot, the express direction issued by this Hon'ble Court has been flouted.
(vii) It would automatically follow that in view of the fact that the so called election held by Thiru V. C. Shukla was not by secret ballot the question of the ballot papers being signed both by Thiru Randhir Singh, General Secretary of Indian Olympic Association as well as by Thiru Avadh Behari Rohtagi would not arise and this direction automatically stands violated."
and it is said,
"What follows out of the narration of the facts mentioned above is that Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh have not only flouted and violated the orders of this Hon'ble Court but have shown their total contempt for the institution of the Judiciary thus seriously exposing the Judicial organ of the State of Public ridicule. I seek the leave of this Hon'ble Court to implead Thiru Mishra in this petition for contempt."
Stating that the Asian Games were to be held in Beijing, China on and from 22-9-1990 and all the arrangements for the Asiad including the selection of players, managers had been made, the teams in each discipline selected by the respective Federation and already forwarded by the present committee headed by Thiru B. S. Adityan to the Asian Games Organisation Committee, were in the coaching camp and the President and the Secretary General had to countersign the identification cards and alleging that the only motive behind the blatant and open violation by the respondent/appellant, a Member of parliament, former Cabinet Minister and a former Chief Minister, of the orders of this court, which had been read out by Thiru Avadh Behari Rohatgi at the commencement of the meeting with so many witnesses including the newspaper reporters was to somehow or other usurp the office of president of the Indian Olympic Association with the hope that the Govenment of India and the Ministry of Sports would support him in his adventure so that he could be the president of the Indian Olympic Association to represent India at the Asiad to be held in Beijing and the respondent appellant on the very next day, broke open the lock of the office of the Indian Olympic Association in the Jawahar Lal Nehru stadium and had physically trespassed and occupied the office, plaintiff/applicant sought a direction that Thiru E. S. Adityan continued to be the president of the Indian Olympic Association and that the meeting, if any, purported to have been held by Thiru V. C. Shukla after the adjournment of the Special General Meeting on 15-6-1990 and the resolution if any purported to have been passed appointing Thiru V. C. Shukla as President of the Indian Olympic Association would be of no legal consequence and would have no legal effect.
8. The respondent/appellant however appeared and filed a counter-affidavit in the contempt application. He has stated in the counter-affidavit that he came to know about the orders of this Court only after the meeting was concluded and,
"Curiously when lot of publicity was being generated by this issue the newspapers which came out on the 15th June Morning 1990 did not contain any report of the orders of this, Hon'ble Court passed on 14-6-1990 itself."
And alleged that the first defendant in the suit had intentionally not brought to the notice of the members the order passed by this Court before the meeting because of two reasons. (1) Because the entire General Body of I.O.A. was aware of the closeness of the Association between the Plaintiffs/Petitioners and Thiru B. S. Adityan (first defendant in the suit) and the fact that the suit was a clear abuse of process of Court and obviously collusive in nature,
"If the orders were made known Thiru Adityan would possibly have lost any remaining sympathy which the General body would have for him and defeat him at the election. Therefore it suited his purpose to withhold service of the order. If he were really eager to enforce the order, the same could easily have been affixed at the entrance of the meeting hall or even xeroxed and handed over to the members, neither of which were done".
Secondly, both Thiru Adityan and Thiru Murugan were part of the General Body in 1980 which amended the Constitution of I.O.A. to make voting by show of hands mandatory,
"Indeed it was by show of hands on a resolution moved by the Plaintiffs among others that I am unseated from my Presidency in Trivandrum in 1987."
He has stated that the collusive nature of the suit would be further evidenced by his name not figuring in the list of parties in the suit. He has alleged that Thiru Adityan and his men including the plaintiffs had deliberately withheld the information about the orders of this Court because Thiru Adityan knew that he would have possibly lost even the remaining sympathy which the General Body would have for him and would be defeated at the election and that it was he who had tried to create a pandemonium with the sole purpose of calling off the meeting and declare himself elected by secret ballot.
9. The plaintiff/respondents supported the allegation of contempt by filing a copy of the order of the Delhi High Court in I.A. No. 4515 of 1990 in Suit No. 1871 of 1990, a report of the observer appointed by the Delhi High Court and submitled in Suit No. 1871 of 1990 in the Delhi High Court, an extract of a newspaper report supported by the affidavit of the Reporter and a copy of the First Information Report lodged by a Police Officer.
10. The respondent/appellant supported his stand by filing an affidavit of one V. K. Malhotra, who is the President of the Archery Association of India, a Member of Parliament and one of the members of the Association and affidavit of one G. S. Mandar, the President of the Wrestling Federation of India (Director General of Central Industrial Security Force) and a member of the Association, who attended the meeting and prepared the minutes of the meeting.
11. Thiru Murugan has filed a reply-affidavit and alleged,
"No meeting at all was held at the Park Sheraton Hotel on June, 15, 1990 at which any resolution of no confidence was passed or V. C. Shukla elected President of the I.O.A. or where he was authorised thereafter to nominate any executive Council. That is for ihe reason that the report of the observer or any of the two other reports including the affidavit of the petitioner herein, give a true and faithful account of what traspired at the meeting where persons who held high offices or were office-bearers of sporting associations or federations were prepared to resort to hooliganism, rioting and violence for the purpose of seizing a powerful organisation and taking over control. The action of V. C. Shukla and his supporters which is vividly described in these three reports would show that if they are allowed to retain their advantage or benefit of their extra-legal actions including their resorting to violence and rioting even for a day, the rule of law would suffer the credibility of the proceedings of court would be seriously affected. It is obvious that the minutes are fabricated ones. No meeting was in fact held on June 15, 1990 in the Park Sheraton Hotel, that signatures were collected subsequently as the minutes and the signatures have seen the light of the day for the first time only on 25th of June 1990. Those fabricated minutes do not even speak to the presence of the observer or anything that he had said and done on that day. A fraud had been perpetrated on this Hon'ble Court by V. C. Shukla by pretending to have been elected at a meeting held on that day in the Park Sheraton Hotel and by fabricating minutes of such a meeting. The respondents are guilty of having filed forged documents before this Hon'ble Court and the petitioner reserves his right to take criminal action by filing appropriate proceedings u/S. 340 of the Criminal Procedure Code."
12. Learned trial Judge has disposed of the sub-application only saying.
"In disposing of this Sub Application it is not relevant or necessary to go into the question of contempt, that I feel the contention put forward that there was no intimation or information or knowledge about the order passed by this Court at the meeting cannot at all be accepted. The learned counsel for the respondent submitted that no reliance could be placed by this Court on the report of the observer and merely because the observer happened to be a Retired Judge of the Delhi High Court, importance need not be attached to them and according to the learned counsel, since the said observer had been paid Rs. 20,000/- by way of cheque issued by the IOA which was allowed to be encashed by V. C. Shukla, the report is a biased one. As regards this contention I wish to point out that this Court in placing reliance not because he happened to be a retired Judge of the Delhi High Court, but he happened to be an observer appointed by the High Court whatever office he held before. I do not think that the said observer could have wholly given a wrong version of the incident as regards the order passed by this Court being made known to V. C. Shukla and others by the observer as well as by B. S. Adityan. Since the resolution proposed to be moved against Adityan, it was not proper for Mr. Adityan to be the President of the meeting. Such an objection could have been raised and objection could have been given in writing to Adityan and they would have requested the meeting to be postponed to get further orders from this Court. Even under the Constitution of IOA the President shall preside over the meeting of the Assembly and the Executive Council. Even assuming for a moment that the order of this Court directing Adityan to be President of the meeting was not made known, the Constitution IOA lays down that he shall be the President of such meeting. When the requisitionists wanted him not to preside over the meeting, as observed earlier, there could have been a requisition given to the President not to preside over the meeting."
Learned trial Judge has found that on the facts pleaded before him, the plaintiff respondents were entitled to come forward with the prayer that the alleged resolution purported to have been passed by V. C. Shukla as the President of Indian Olympic Association would be of no legal consequence and would have no legal effect and for a further direction that the office premises of the Indian Olympic Association be restored by him to B. S. Adityan.
13. The appellant first filed Contempt Appeal No. 5 of 1990 which was posted before the First Bench of this Court. A preliminary objection was raised on behalf of the respondents as to the maintainability of the contempt appeal. The appellant then filed a petition in C.M.P. No. 9627 of 1990 praying therein,
"Should this Hon'ble Court deem that a contempt appeal as the one filed above is not maintainable, the appellant prays that this Hon'ble Court, in the interest of justice, be pleased to order conversion of this Contempt appeal as an appeal filed under Cl. 15 of the Letters Patent Act in the interest of justice."
After hearing learned counsel for the parties, the First Division Bench allowed the prayer and permitted the conversion of the contempt apeal into a letters patent appeal. The issue as to the maintainability of the contempt appeal has already been concluded by an order of this Court dated 14-8-1990. The impugned order however has been stayed by a Bench of this Court by an interim order dated 14-8-1990 in C.M.P. No. 9042 of 1990. The situation as on this date is that the appellant is functioning as the President of the Indian Olympic Association and it is stated that a new Executive Council has been nominated by him which has since assumed office.
14. To complete the narration of facts, we may here state that at some stage of the proceedings before this Court, certain Special Leave Petitions were preferred before the Supreme Court by Sri Murugan and the Tamil Nadu Olympic Association and the Supreme Court on 5-9-1990 passed orders during the pendency of this appeal to the effect that the affairs of the Indian Olympic Association are in the very sorry state indeed and urgently need looking into it observing,
"Unless some remedial measures are taken, it appears that it might be difficult to conduct the management of the Association in a democratic manner in accordance with its constitution."
The Supreme Court passed no substantive order in the matter as it found that the appeal was to be heard by this Court, but ordered,
"There will however be an order that neither Mr. V. C. Shukla nor Mr. Adityan shall represent the Indian Olympic Association at the Asian Games commencing on September 22, 1990. It is clarified that this order will not prevent either of them from going to attend the Games in their private capacity or in any other capacity. The Government of India, if it think fit may nominate any person eminent in the field of sports other than a party to the dispute in this case to represent the Government and accompany the Indian Olympic Team. It is clarified that such person shall, however, not claim in any manner to represent the Indian Olympic Association but will accompany the team merely as a representative to the Government of India.
15. Government of India however has given a letter on 20-6-1990 to Sri V. C. Shukla Stating,
".....in order to avoid any deadlock in the functioning of Indian Olympic Association (IOA) particularly in view of our participation in the forthcoming Beijing Asian Games being held in September-October 1990, Government would deal with you as President, IOA on interim basis, till such time fina! decisions are taken in respect of any matters pending in court between you and others."
16. There was a suit filed in the Delhi High Court being Suit No. 1871 of 1990 in which a petition I.A. No. 2515 of 1990 was also filed. The said suit and the petition were filed by the Indian Olympic Association through its Secretary General that is to say that second defendant in C.S. No. 481 of 1990 on the file of this Court. A learned single judge of the Delhi High Court on 8-6-1990 disposed of the petition for interim injunction by recording that the President of the Plaintiff Association that is to say the first defendant in C.S.No. 481 of 1990 had already convened a meeting at Madras on 15-6-1990 and thus no parallel meeting should be held at Delhi and accordingly ordered,
"I am of the opinion that plaintiff has made a good prima facie case. The balance of convenience also lies in favour of plaintiff as the President of Plaintiff Association has already convened the meeting at Madras on June 15, 1990. Plaintiff will suffer an irreparable loss and injury in case, a parallel meeting is held.
It is made clear that in the Special General Meeting to be held at Madras on June 15, 1990, the resolution with regard to loss of confidence in the present Executive Council shall also be considered and put to vote. All the members shall be entitled to participate in the meeting and shall have the right to exercise their votes.
In my view, an observed to be appointed by this Court, should be present at the Special General Meeting to be held at Madras on 15th June 1990. I appoint Mr. V. P. Singh, Senior Advocate, as Observer for this purpose. His tentative fee is fixed at Rs. 10,000/-. All his expenses shall be borne by the plaintiff Association."
It appears that by a subsequent order of the Court Mr. V. P. Singh was replaced by Mr. Avadh Behari Rohtagi, a retired Judge of the Delhi High Court, who it is admitted, was present on 15-6-1990 at the commencement of the meeting at Park Sheraton Hotel. He has submitted a report dated 31-6-1990 in which he has stated that he reached the venue of the meeting at 11-30 a.m. on 15-6-1990. The meeting was to begin at 12-15 p.m. When however he reached, an order of the Court dated 14-6-1990 passed in C.S. No. 481 of 1990 was served on him. In that order, Learned Judge directed that the voting on the resolution would be by secret ballot and ballot papers would be signed by the Secretary General of the Indian Olympic Association as well as by the observer appointed by the Delhi High Court and only such ballot papers as were signed by them would be held to be valid. The Court had further directed that the meeting to be held on 15-6-1990 would be presided over by Sri Adityan who was the President of the Indian Olympic Association. Since the Delhi High Court had allowed the Special General Meeting to consider and vote upon the resolution afore-quoted which had been moved by certain members of the Association against the present set of office-bearers headed by B.S. Adityan. There were about 123 members who were divided into two groups, one headed by Adityan and the other headed by Shukla. Before the resolution could be considered and put to vote, Vijay Kumar Malhotra, a leading requisitionist announced that the requisi-tionists had no confidence in Adityan and that they did not want him to preside the meeting and Mandher, President of the Wrestling Federation of India, was requested to take the chair. Mandher took his seat near Adityan and proposed name of V. C. Shukla for the office of President. Thereafter, the report says,
"At this stage 1 announced that this was illegal and brought to the notice of the abuse the order of the Madras High Court served upon me. V. C. Shukla came to me. I showed him the order. He read it. Similarly V. K. Malhotra came to me and read the order. Others also saw the order. Everyone had come to know that the Madras High Court had directed Voting on the resolution by secret ballot and Adityan to preside at the meeting, After his name was proposed, Shukla came and set near us where Adityan, President, Randhir Singh, Secretary-General, and I were sitting. Shukla and Adityan began to talk. Adityan insisted on secret ballot as directed by the Madras High Court. Shukla did not agree. He refused to recognise the Madras High Court order. This talk between the two went on for the rest part of the day to find out some solution or compromise formula. When no agreement was reached Adityan announced that voting by secret ballot will take place. Ballot papers and ballot box were brought. One or two persons cast their votes. But voting was riot allowed to go on. The requisitionists tore the ballot papers and smashed from my hand. I was pushed aside and manhandled. There was a pandemonium. The Police had to intervence to restore order so that voting takes place."
According to this report,
"The long and short of the entire sordid affair is that there was no consideration of the resolution and there was no voting either by secret ballot nor by show of hands. Instead there was confusion, chaos, fighting and shouting. There was a good exhibition of muscle power and lung power..... From what I saw I can say this. There was no election. No voting on the resolution. Voting had to take place by secret ballot. No sooner voting process began all hell broke loose. It was a free for all right with no holds barred. Such a State was not conducive to voting or election on any sane discussion for that matter. It was impossible to conduct the meeting in the confusion and chaos that prevailed. The requisitionists saw to it that voting does not take place. The Madras High Court order was set at naught."
Sri Avadh Behari Rohtagi has said in his report,
"Adityan complained that Shukla has brought in people without accredition cards. Similar was the complaint of Shukla against Adityan. I cannot say anything on this as there was trouble from the very beginning and nothing was orderly."
17. From what we have already noticed, it can be said :
(1) Certain members of the Association wanted convening of Special General Meet-ipg and accordingly gave notice dated 16-5-1990 to resolve that the House had lost confidence in his Executive Council and to elect a new Executing Council. The notice suggested that the meeting should be convened at New Delhi within the specified period or else the requisitionists would hold the said meeting on 16-6-1990 or on any day thereafter at the National Stadium, New Delhi to consider the above noted item in the agenda.
(2) The second respondent representing the Association, filed a suit in the Delhi High Court, being Suit No. 1871 of 1990 in which suit a prayer for injunction was made against the requisitionists. The Delhi High Court on 6-6-1990 passed an order restraining the requisitionists from holding any meeting at Delhi but directed that the Special General Meeting to be held at Madras would be so held and the resolution with regard to loss of confidence in the Executive Council would also be considered and put to vote. The Delhi High Court appointed Sri Avadh Behari Rohtagi, a retired Judge of the said Court as an Observer, who was present at the meeting on 15-6-1990 at Madras Park Sheraton Hotel.
(2) After the order of the Delhi High Court that is to say on 10-6-1990, C.S. No. 481 of 1990 was filed in this Court by the plaintiffs, one being the Tamil Nadu Olympic Association represented by Sri Murugan, its General Secretary and another being Murugan in person, who is the Joint Secretary of the Indian Olympic Association. Only B.S. Adityan, the President of the Indian Olympic Association and Randhir Singh, the Secretary General of the Association were impleaded as party defendants.
(4) Between 11-6-1990 and 14-6-1990, more than one petitions for interim injunction or direction were filed in C.S. No. 481 of 1990 and on 14-6-1990 learned trial Judge passed the order in the presence of the defendants, who were represented by their counsel that resolution mentioned in the meeting notice would be put to vote by secret ballot and that the ballot papers or voting papers which would be issued to the voting persons, would be signed before issue by the Secretary Genera] of the Association (Second defendant in the suit) as well as the Observer appointed by the Delhi High Court and only such ballot papers or voting papers signed by them would be held to be valid and further that the meeting as scheduld on 15-6-1990 would be presided over the first defendant Sri Adityan.
(5) On 16-6-1990 according to one version, supporters of Sri Shukla created disturbances and chaos and according to the other version, Sri Adityan and his men deliberately withheld information about the order of the Madras High Court and the first defendant tried to create a pandemonium with the sole purpose of calling off the meeting and declare himself elected by secret ballot.
(6) According to one version when Sri Adityan found that the supporters of Sri Shukla were not allowing the voting by secret ballot, he adjourned the meeting. According to the other version, in spite of the attempt of Sri Adityan and his supporters to somehow forestall the meeting or to get himself declared as elected by a Sham secret ballot, the no confidence resolution was adopted and Sri Shukla elected at the said meeting as the President by show of hands and was authorised to nominate the other office-bearers.
18. Thus the meeting of the Association either ended in the pandemonium without any vote of no confidence or election of the meeting adopted the resolution of no confidence a majority vote by show of hands and authorised Shukla to nominate other members of the Executive Council. In either case, this Court's direction was not carried out. Whether it was on account of the supporters of Sri Shukla interfering or on account of Sri Adityan deliberately withholding the information about the order of this Court and whether the alleged meeting was adjourned after pandemonium by Adityan or was held under the Presidentship of Sri Mandher in which Sri Shukla was elected as the President by show of hands, Sri Shukla admittedly has assumed the office of President.
19. Our task in the instant case however is limited to first retracing or exploring the jurisdiction of the Court to pass an order of the nature of the impugned order which on the one hand is a sort of declaration and on the other an order of mandatory injunction against the appellant and examining whether the facts of the case warranted a direction of this nature or not.
20. There are powers of this Court which are spelt out in various provisions of the Constitution of India and the statutes framed by the Parliament or the competent Legislature. But this Court's power as the Court of Record has been recognised since its creation and left unaltered by Art. 215 of the Constitution which states,
"Every High Court shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself."
This provision like Art. 129 of the Constitution of India which similarly states about the Supreme Court being a Court of Record and powers of such a Court including the power to punish for contempt itself is generally recognised as the Court's power to punish for its contempt although it is clear that the power to punish contempt for itself is Only one of such powers of the High Court as a Court of Record. Framers of the Code of Civil Procedure, 1908 like the framers of the Constitution of India were also aware of such special jurisdiction of the court and provided two savings, one in S. 4 thereof and the other S. 151 thereof to recognise such a special and inherent jurisdiction of the Court. S. 4 of the Code of Civil Procedure States,
"(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-sec. (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a Land holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the procedure of such land."
Section 151 of the Code states,
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
21. Similar provisions may be found in Ss. 5 and 482 of the Code of Criminal Procedure, 1973 wherein again it is stated,
"S. 5. Nothing contained in this Code shall in the absence of a specified provision to the contrary affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
S. 482. Nothing in this Code shall be deemed to limits or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
22. We do not think it necessary in the instant case to make any comparative study of the Civil and Criminal Jurisdiction of the High Court or the powers that this may exercise in a civil or criminal proceeding because in the instant case, we are concerned with a civil proceeding pending in this Court in which a certain order was passed and since that order has been allegedly violated, a application contempt has been filed followed by a sub-application therein under S. 151 of the Code of Civil Procedure in which application the impugned order has been passed. We may however state one contention raised on behalf of the appellant that a contempt proceeding being a criminal proceeding, the rules that are applied to a criminal proceeding have to be applied in the contempt case filed on behalf of the plaintiff/respondents and thus in the sub-application also, the same rules should be applied. Such a contention however is nothing but a misapprehension and a mistake in understanding the true nature of a contempt proceeding. A contempt proceeding is a proceeding of special jurisdiction of a Court of Record and a contemner is not an accused in a criminal case although some limes he is so described. The Courts have extended the rules of proof beyond, reasonable doubt and such other rules of procedure in a contempt proceeding only to emphasise that as Courts of law and Courts of Record, they must act fairly and give full opportunity to the contemner, who may not] establish his innocence but show that the allegations levelled against him are not free from doubt. In that sense contempt proceedings are described as quasi-criminal proceedings. Otherwise they are proceedings of a summary nature and the Courts evolve their own procedure to dispose of such proceedings.
23. Apart from the provisions in Art. 215 of the Constitution of India, the Code of Civil Procedure and the Code of Criminal Procedure saving the inherent jurisdiction of the Court including its contempt jurisdiction, Art. 225 of the Constitution is another provision which emphatically saves the inherent jurisdiction of the High Court, it states,
"Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and the members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution."
This not only saves the existing jurisdiction of this Court, but also saves the inherent jurisdiction. As a result of these provisions, it can be slated without any hesitation that as the incidence of Court of Record, this Court has got the power to determine the question as to its own jurisdiction and ii has inherent power to punish for its contempt summarily.
24. In Govindarajulu v. Imperial Hank of India, AIR 1932 Mad 180, when a learned single Judge of this Court was confronted with an argument that if an injunction cannot be passed under the provisions of Order 39, Rule 1 or 2 of the Code of Civil Procedure, it would not be permissible to seek the power under Section 151 of the Code in order to justify such an order, accepted the contention that an injunction to restrain the respondent from executing a certain decree could not be granted in exercise of the inherent power of the Court (which has been subsequently overruled by the Supreme Court), but proceeded to consider the jurisdiction of this court as a Court of Record and said,
"..... So far as a Court which is restricted to the terms of the Code of Civil Procedure it concerned, it has been held by Phillips, J. in Varadacharyulu v. Narasimhacharyulu AIR 1926 Madras 258 : 92 Ind Cas 615, which I had occasion to follow in Ayyaperumal Nadar v. Mulhuswami Pillai, AIR 1927 Madras 687 : (102 Ind Cas 700) that if an injunction cannot be passed under the pr visions of O. 39, Rule 1 or R. 2, it is not permissible to seek the power under Section 151 of the Code in order to justify such an order. It has however been argued now that a High Court is not resticted to the terms of the Code, but possesses an equitable power, otherwise derived, to control the proceedings in other Courts. There can be no doubt that in England a power of this character exists and a discussion of the nature of it will be found in Ellerman Lines Ltd. v. Read (1928) 2 KD 144. In that case the question arose as to whether a British subject could be restrained from enforcing a foreign judgment, in execution, and the court of appeal answered the question in the affirmative, the principle upon which the matter was decided being clearly explained in the judgment of Atkin, L.J., namely, that the Court in granting injunctions does not seek to assume jurisdiction over the foreign Courts or arrogate to itself some superiority which entitle it to.....dictate to the foreign Court, or that it seeks to criticize the foreign Court or its procedure :
"The English Court has regard to the presonal altitude of the person who has obtained the foreign judgment. If the English Court finds that a person subject to its jurisdiction has committed a breach of co-venent, or has acted in breach of some fiduciary duty or has in way violated the principles of equity and conscience, and that it would be inequitable on his part to seek to enforce ajudgment obtained in breach of such obligation, it will restrain him, not by issuing an edict to the foreign court, but by sayying that he is in conscience bound not to enforce that judgment."
I do not propose to go so far as the learned Judges who decided Ganga Singh v. Pirthi-chand Lal, AIR 1922 Patna 34, and who appear to have based their decision as to the power of a Court (not necessarily a High Court) to issue an injunction in certain circumstances purely upon English precedents and without any reference to the terms of the Code of Civil Procedure. But there is authority for the view that the High Courts, over and above the powers which they enjoy under that Code possess an equitable jurisdiction derived from the old Supreme Court to issue an injunction in appropriate cases. This is the basis of the decision in Pariakaruppan Chettiar v. Ramaswami Chettiar AIR 1928 Madras 497 where Ramesam and Devadoss, JJ. held that the Chartered High Courts have such a power following Rash Behary Day v. Bhowani Churn Bhose (1907) ILR 34 Cal 94) and Mungle Chand v. Gopal Ram (1907) ILR 34 Cal 101. In that former of these two decisions Woodroffa, J. who certainly is a high authority on question of procedure, gave it as his opinion that a High Court had and has, independently of the Civil Procedure Code, power to make an order of the nature sought, and he answered in the negative the question whether there was anything in the Civil Procedure Code which took away that power. That case was decided under the old Code, but I do not think ihat there is anything either in S. 151 or any other provision of the new Code which would deprive a High Court of powers derived independently of it. Another case Singnaravelu Mudali v. Balasubramania Mudali AIR 1926 Madras 1126, decided by Ramesam, J. has been cited to me as an authority in favour of the existence of the power, but I observe that he was able to bring the injunction within the terms of R. 2, O. 39 so that the remaking observations in the learned Judge's Judgment are, I think merely obiter, though, as I understand them, he was of opinion that a power exists apart from the terms of that rule. It appears to me however that Periakaruppan Chettiar v. Ramaswami Chettiar AIR 1228 Madras 491 is sufficient authority for the general proposition that this Court is not bound by the terms of the Code in issuing injunctions in appropriate cases. It appears to me that a case of the present for the exercise of such a power. We have two proceedings going on at the same time, one the execution of the decree and the other a proceeding which may eventuate in the decree being set aside. It is quite clear that these two proceedings, if allowed be to on independently may lead to incompatible and perhaps unfortunate consequences. I think accordingly that, in general, there is justification for a Court exercising the power to restrain the holder of the decree against which such proceedings are pending from exercising it."
25. In Sukhdev Singh v. Teja Singh, AIR 1954 SC 186 : (1954 Cri LJ 460) a clear pronouncement of the Supreme Court is available as to the nature of the contempt jurisdiction of this Court. One of the arguments advanced before the Supreme Court was that a contempt being punishable under the Contempt of Courts Act, 1952 or an offence punishable by a law consequently triable under the Criminal Procedure Code. As Section 5 of Code of Criminal Procedure made it applicable not only to the trial of offences under the Indian Penal Code but also to the trial of offences against other laws. The Supreme Court rejected the said contention saying, (Para 3)
"We are unable to agree. In our opinion, the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record and S. 1(2) of the Code expressly excludes special jurisdiction from its scope."
Section 5 of the Code of Criminal Procedure, 1973 is similar to Section 1(2) of the 1898 Code. The Surpeme Court then proceeded to examine as to what this "special jurisdicton" is and noticed that the term "special jurisdiction" is not defined in the Criminal Procedure Code but the words "special law" defined in Section 41 of the Indian Penal Code would mean "a law applicable to a particular subject" and the said (Para 3)
"..... In the absence of any specific definition in the Criminal Procedure Code, we think that that brings out the ordinary and natural meaning of the words "special jurisdiction" and covers the present case. Contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Records."
Making thereafter a study of the law on the subject, the Supreme Court proceeded to take notice of the view of the Courts in India and referred to several authorities on the subject and stated (page 5)
"This has long been the view in India. In 1867, Peacock C.J., laid down the rule quite broadly in these words In 'In re Abdool: (1867) 8 Suth WR (Cri) 32 at P. 33'.
"There can be no doubt that every Court of Record has the power of summarily punishing for contempt."
It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin of the power in the case of the Calcutta, Bombay and Madras High Courts to the Common Law of England : See 'Surendranath v. Chief Justice and Judges of the High Court of Bengal', (1982-83) 10 Tnd App 171 at p. 179 (PC) but it is evident from other decisions of the Judicial Committee that the jurisdiction is broader based than that. But however that may, be Sir Barnes Peacock made it clear the words "any other law" in Section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three chartered High Courts.
Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three courts, the Charter of ]974, which established the Supreme Court of Bengal, while providing in clause 4 that the Judges should have the same jurisdiction has the Court of King's Bench in England, also expressly stated in clause 21 that the Court is empowered to punish for contempt.
When the Supreme Court of Bengal was abolished, the High Courts Act of 1861 continued those powers to the Chartered High Courts by Sections 9 and 11 and clause 2 of he Letters Patent of the year 1865 continued them as Courts of Record. Despite this, in 1883 the Privy Council did not trace this particular jurisdiction of the Calcutta High Court to clause 15 of its charter but to the Common Law of England. But what is the Common Law? It is simply this: that the jurisdiction to punish for contempt is something inherent in every court of record.
Sulaiman, J. collected a number of English authorities at pages 631 to 632 of his judgment In re Abdul Husan Jauhar, AIR 1926 All 623 (SB), and concluded thus:
"These leading cases unmistakably show that the power of the High Courts in England to deal with the contempt of inferior courts is based not so much on its historical foundation as on the High Court's inherent jurisdiction."
Apparently, because of [his the Privy Council held in 1853 that the Recorder's court at Serrc Leona also had jurisdication to punish for contempt, not because that Court had contempt, not because that court had inherited the jurisdiction of the English courts because il was a Court of Record. Their Lordship's language was this:
"In this country every Court of Record is the sole and exclusive judge of what amounts to a contempt of court ..... and unless there exists difference in the constitution of the Recorder's Court at Sierre Leion the same power must be conceded to be inherent in that Court..... We are of opinion that it is a Court of Record and that the law must be considered the same as in the country."
The 1884 edition of Belchamber's Practce of the Civil Courts also says at page 241 that :
"Every superior Court of Record whether in the United Kingdon, or in the colonial possessions or dependencies of the Crown has 'inherent' power to punish contempts, without its precincts, as well] as 'in facie curiae' ..... So also 7 Halsbury's Laws of England (Hailsham edition) page 2.
"The superior courts have an 'inherent jurisdiction' to punish criminal contempt etc....."
But reverting to the developments in India, the High Court of Allahabad was established in 1866 under the High Courts Act, 1861 and was continuted a Court of Record. In 1906 the Privy Council remarked at page 108 of its judgment in -- 'In the matter of Sashi Bhushan Sarbadhicary (1907) 1LR 29 All 95 : (1907-5 Cri LJ 57) (PC)
"There is also no doubt that the publication of this libel constituted a contempt of Court which might have been dealt with by the High Court in a summary manner by fine or imprisonment or both."
After this came the Goverment of India Act, 1915. Section 106 continued to all High Courts then in existence the same jurisdiction, powers and authority as they had at the commencement of that Act, and Section 113 empowered the establishment of new High Courts by Letters Patent with authority to vest in them the same jurisdiction, powers and authority "as are vested in or may be conferred on any High Court existing at the commencement of this Act."
The Supreme Court has thereafter referred to various judgments of the Indian Courts including the Special Bench judgment of the Lahore High Court in Habib, in the Matter of AIR 1926 Lahore 1 ; (1925-26 Cri LJ 1409) In the Matter of Muslim Outlook, Lahore AIR 1927 Lahore 610 : (1927-28 Cri LJ 727) Matter of Har Kishan Lal AIR 1937 Lahore 497 : (1937-38 Cri LJ 883), a Special Bench Judgment of the Allahabad High Court in In re Abdul Hasain Juhar AIR 1926 All 623 and a Full Bench of the Patna High Court in Emperor v. Murali Manohar Prasad AIR 1929 Patna 72 : (1929-30 Cri LJ 741) and other cases and stated :--
"Finally in -- 'Parashram Detaram v. Emperor AIR 1945 PC 134 at p. 136 the Privy Council said that,
"this summary power of punishing for contempt..... is a power which a court must of 'necessity' possess".
We have omitted references to the Bombay and Madras decisions after 1883 because the Judicial Committee settled the powers of the three Chartered High Courts. What we are at pains to show is that, apart from the Chartered High Courts, practically every other High Court in India has exercised the jurisdiction and where its authority has been challenged each has held that it is a jurisdiction inherent in a Court of Record from the very nature of the Court itself. This is important when we come to construe the later legislation because by this time it was judicially accepted throughout India, that the jurisdiction was special one inherent in the very nature of the court".
The Supreme Court has thereafter referred to Art. 215 of the Constitution, the Contempt of Courts Act, 1926, which was repealed by the Contempt of Courts Act, 1952 and said.
"In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate court, the Constitution vests these rights in every High Court, so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority."
"We hold, therefore, that the Code of Criminal Procedure docs not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of a the charge against him and given a fair and reasonable opportunity to defend himself."
26. In Manohar Lal v. Seth Hiralal , however, the
inherent jurisdiction of the Court to make orders ex debito justitiae was recognised by the Supreme Court in these words, (at p. 537 of AIR).
"It is true that the High Courts constituted under charters and exercising ordinary original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain parties in a suit before them from proceeding with a suit in another court, but that is because the chartered High Courts claim to have inherited this jurisdiction from the Supreme Courts of which they were successors. This jurisdiction could be saved by S. 9 of the Charter Act (24 and 25 Vict. C. 104) of 1861 and in the Code of Civil Procedure. 1908, it is so expressly provided in S. 4. But the power of the Civil Courts other than Chartered High Courts must be found within S. 94 and O. 39, Rr. 1 and 2 of the Civil Procedure Code.
The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules for guidance in rcpect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in (1935) 62 Ind App 80 : AIR 1935 PC 85:
"It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the Court a statutory discretion, there can be implied in Court, outside the limits of the Act a general discretion to dispense with the provisions of the Act."
Inherent jurisdiction of the court to make orders ex debilo justitiae is undoubtedly affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
27. Thus this court's special jurisdiction as well-as inherent jurisdiction to make orders ex debito justitiae on the one hand and to punish for its contempt on the other, cannot be doubted and if a jurisdiction exists in a court, the court always has the right and duty to exercise that power as effectively as possible as it is always a inherent jurisdiction of the court to make its power effective even though there is no specific provision of law to cover that particular power.
28. Article 215 of the Constitution has made no distinction between a civil contempt or a criminal contempt and covers the whole field of litigation, civil or criminal and any thing that tends to curtial or impair the freedom of the limbs of the judicial proceedings. The courts in their attempt to identify the nature of contempt have noticed however three different sorts of contempt viz., (1) scandalising the court itself. (2) abusing parties who are concerned in causes before it and (3) prejudicing mankind against persons before the case is heard. We need not however wander into this areana as the Parliament has enacted the Contempt of Courts Act, 1971 and defined "contempt of Court" to mean civil contempt or criminal contempt, 'civil contempt" to mean wilful disobedence to any judgment, decree, direction order, writ or other process of a court or wilful breach of an undertaking given to a court" and, ..... "Criminal contempt" to mean the publication, whether by words, spoken or written or by single or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise or lowers or tends to lowes the authority of any Court or prejudice or interferes or tends to interfere with the due course of any Judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. The present appeal is concerned with the civil contempt only although it is conceded before us that there are several allegations in the contempt application, which make out a case of criminal contempt. Civil contempt is thus essentially concerned with the enforcement of judgment, decree, direction, order, writ or other process of a Court. The administration of justice can only be effective if it has the means to enforce the court's judgment and orders. That is why civil contempts are also called contempt in procedure. Courts also do not easily resort to the contempt procedure. Contempt is a blunt weapon. It is used sparingly and only in cases where when it is found difficult to generate obediene and respect for the court or when a court attempts to secure obedience to its. orders, directions, etc., or to elicit respect to it. It rarely does any such thing to grandiose its Officers on the man power including the judges. It does so, first to undo the wrong done and secondly to ensure that the administration of justice is not brought into a scorn or ridicule because there is no interest of the court, which is not public interest. If violations of the Courts' orders will be ignored, there will be nothing left save for each person to take the law into his own hands. Loss of respect for the Courts will ultimately result in the destruction of the rule of law and ultimately the society. Still courts before seeking enforcement of their order, want to be satisfied first to whom the order, writ or direction was addressed, whether to whom the order was addressed knew about the court's order or not and whether such a person had willfully disobyed the order of the court or not. ,
29. One of the contentions before us has been that the order/direction/injunction of a court in a Civil Proceeding is directed only to the party to a proceeding and its implementation therefore is required by such a party alone. A stranger or a third party may be involved in contempt only if he is found aiding or abetting or otherwise obstructing the enforcement of the Court's order. There is and there can be no dispute to the rule that a person cannot be held guilty of contempt in infringing an order of the Court he knows not.
30. Order 39 Rules 1 and 2 of the Code of Civil Procedure provide for temporary injunction in any suit on proof that any property in dispute is in danger of being wasted, damaged or aliented by any party to the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose of his property with a view of defrauding his creditors or threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit and in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, to restrain the defendant from committing the breach of contract or injury complained of or any breach of contract or injury of a like kind arising out of the same contract or related to the same property or right.
31. We have already noticed that a Court's power to grant injunction is not confined to Order 39, Rules 1 and 2 of the Code of Civil Procedure. In Appropriate cases, the Court can grant injunction exercising its inherent power. Yet, a departure from the rule that any order or direction in the nature of injunction should be directed to the parties to the suit or litigation before it cannot easily be allowed. That is why the first thing to know in such a case is who the contemner is, a party to the proceeding or a stranger. In addition to holding those who have been expressly enjoined by an injunction to have committed a contempt if they disobey the Older, a person who is not a party to the action, who knowing of an injunction, order or direction, aids and abets the defendant in breaking it is also a contemner is a rule which has since received wide recognition by almost every court. The rule stated in Seaward v. Paterson (1897-1 Ch 545) has been so often repeated that it has almost become a common knowledge that a person, who is not enjoined by the Court's order is not bound by the injunction order or direction. That was a case in which an injunction had been granted restraining Paterson, his agents and servants inter alia from doing or suffering to be done which may interfere with the full and quiet enjoyment of the plaintiff or his under tenants of the premises adjoining or neighbouring to the first, second and third floors of certain premises. In contravention of this injunction, Paterson allowed boxing matches to be held on his premises. The motion to commit was moved against him and other persons against whom it was alleged, had aided and abetted the breach. The Court of Appeal in that case held.
"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 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 (punish) him for contempt as distinguished from the breach of the injunction, which has a technical meaning."
In this case the argument that Murray had no notice of the injunction since he was not served with a copy of the order until after the boxing matches had been held, was rejected because the Court was satisfied that he did in fact know of the terms since he had been present during a great part of the trial and had been informed by Paterson of the result immediately afterwards. His other argument that he was a mere spectator and could not therefore be considered as an aider or abetter was also rejected because it was shown that far from being a mere spectator, he was in fact acting as a promoter. The Court however accepted in that case that being a mere spectator was not enough per se to prove that he was aiding and abetting the breach.
32. In Thorne RDC v. Bunting (No. 2) (1972) 3 All ER 1084, a Bench of the Court of Appeal considered a case of breach of undertaking and liability of third parties for contempt. Observing on facts, Russell LJ, held.
"The mother and son had submitted to orders about their registrations limited to the specific and small portions of the relevant land that belonged to the council. The undertaking which the father submitted to (although it would seem apparently that it went further than could have been obtained if the matter had been fully fought out) extended to much more land; that is to say, to other land not the property of the council. The result of the orders against the mother and son and the undertaking by the father has been, of course to clear from the registration the lands in the whole area in fact belonging to the council. The father has done his best to fulfil his undertaking in respect of the rest of the land by saying "so far as I made it provisional common land by the original application No. 807, then in respect of this land 1 withdraw it, and in so far as 1 was party to the applications in respect of rights 2279 and 2281. I am prepared to write a letter, take whatever step you require on my part, to assist the de-registration in respect of the rights provisionally registered in relation to this other land'. But the registration authority say. 'Well, in respect of this other land, we cannot de-register from these rights registered provisionally under 2279 and 2281 because you, the father, are the only person who created or caused their original registration. We are not prepared to act under the discretion given to us by a particular sub-section. We are not prepared to delete the registration of these rights in respect of this wider area of land; and consequently we are not prepared to take the steps which will make this wider area of land cease to be common land. So far as we are concerned, therefore, it will have to wait until the Commons Commissioners get round to deciding how much (if any) of the whole of this area is in fact common land and I, suppose, what common rights there are attached to any part of it," and then said the crucial point,
"It is said here is the father; he admittedly has done his best to comply with his undertaking. Here are the mother and son who are under no obligation under any order of any court to take any step in relation to the withdrawal of registration Nos. 2279 and 2281 in connection with land in the total area other than land belonging to the council."
Russell I...!., said.
"I am hound to say, at a very early stage in the hearing of this appeal, it came to me as an astonishing proposition that in a case where no breach of the father's injunction could be asserted and no relevant order was in existence against the mother and son, anybody could say that the mother and the son, by not doing that which they were under no possible obligation to do, were in contempt of court."
In this judgment, Seaward v. Paterson's case (1897 - 1 Ch 545) (supra) on aiding and abetting the breach of injunction and some other cases were referred to by the learned judge but said,
"We have had our attention drawn to a phrase, six lines in an old note under the heading 'Rules of Court' in Butler's Case (1696) 2 Salk 596. We have been referred to some passages in the judgments delivered for the benefit of the House of Lords in Miller v. Knox (1838) 4 Bing NC 574, relating to people aiding the Sheriff's execution. We have been referred to a case of aiding and abetting breaches of an injunction, Seaward v. Pater-son (1897) 1 Ch 545 to another one of aiding and abetting, Phonographic Performance Ltd, v. Amusement Caterers (Peckam) Ltd. (1963-3 AH ER 493); and to another one in connection with aiding and abetting, or the situation or directors, Filiot v. Kinger (1967) 3 All ER 141. I cannot find anything in these cases which justifies the conclusion that, in a case like this, there can be any conceivable question of charging either the mother or the son with contempt of court."
Therein learned Judge made a further relevant observation.
"Counsel for the council has fought doughtily, wielding general propositions based on six lines in the Salkeld report (In Butler's case 1696-2 Salk 596) that if anybody docs anything which tends to deprive a plaintiff of the fruits of an order, they are in contempt of court. All I can say is, I cannot see it at all. It will be observed, as 1 ventured to observe in the course of the hearing, that what arc the fruits of the order depends on the order. They may be desert apples or they may he crab apples; and here the only undertaking the council got out of the father was ihat he would take some steps which by themselves, if other people did not do something voluntarily to aid him, would not achieve the ultimate aim that the council were looking for; that is to say, to get all this land totally deregistered. But the trunk of the fruit tree was a weak one, although it seeks to have been rather stranger than in law the council were entitled to obtain against the father."
33. In the case of Northern Counties Securities v. Jackson & Steeple (1974) 2 All ER 625, a judgment of the Chancery Division, Walt on J. delivered adjudgment in a case in which a certain undertaking to use best endeavours to obtain quotation for and permission to deal in shares and issue the same on bahalf of the company, was an issue, but shareholders were charged for contempt. Learned Judge noticed the arguments.
"Counsel for the plaintiffs argued that, in effect, there are two separate sets of persons in whom authority to activate the company itself resides. Quoting the well-known passages from Lord Haldane in Lennard's Carrying Co Ltd. v. Asiatic Petroleum Co Ltd. (1914-15) All ER Rep 280 he submitted that the company as such was only a juristic figment of the imagination, lacking both a body to be kicked and a soul to be damned. From this it followed that there must be some one or more human persons who did, as a matter of fact, act on behalf of the company, and whose acts therefore must, for all practical purposes, be the acts of the company itself. The first of such bodies was clearly the body of the directors, to whom under must forms of articles (see art 80 of Table A, or art 86 of the defendant company's articles which is in similar form) the management of the business of the company is expressly delegated. Therefore, their acts are the company's acts; and if they do not, in the present instance, cause the company to company with the undertakings given by it to the court, they arc themselves liable for contempt of court. And this, he says, is well recognised : See RSC Ord 45, R. 5(1), where under disobedience by a corporation to an injunction may result directly in the issue of a writ of sequestration against any director thereof. It is of course clear that for this purpose there is no distinction between an undertaking and an injunction (see the Supreme Court Practice 1973) Vol. 1 P.
This is, indeed, all well established law, with which counsel for the directors did not quarrel and indeed I think his first proposition asserted. But, continues counsel for the plaintiffs, this is only half of the story. There are some matters in relation to which the directors are not competent to act on behalf of the company, the relevant authority being 'the company in general meeting', that is to say, a meeting of the members. Thus in respect of all matters within the competence -- at any rate those within the exclusive competence of a meeting of the members, the acts of the members are the acts of the company, in precisely the same way as the acts of the directors are the acts of the company. Frgo, for any shareholder to vote against a resolution to issue the shares here in question to the plaintiffs would be a contempt of court, as it would be a step taken by him knowingly which would prevent the company from fulfilling its undertaking to the court. Counsel for the plaintiffs admitted that he could find to authority which directly assisted his argument, but equally confidently asserted that there was no authority which precluded it.
Counsel for the directors indicted the argument of counsel for the plaintiffs as being based on a nominalistic falacy. His precise proposition was formulated as follows:
"Whilst directors have special responsibilities as executive agents of the company to ensure that the company does not commit a contempt of court, a shareholder when the position has been put before them generally who chooses to vote against such approval will not himself be in contempt of Court.
Putting this into less formal language, what counsel for the directors submitted was that although it is perfectly true that the act of the members in passing certain special type of resolutions binds the company, their acts are not the acts of the company. There would, he submitted, be no real doubt about this were it not for the use of the curious expression 'the company in general meeting' Which, in a sense, drags in the name of the company unnecessarily. What that premise really means, he submitted, is the member (or corporators) of the company assembled in a general meeting', and that if the phrase is written out in fall in this manner it becomes quite clear that the decisions taken as such a meeting, and the resolutions passed threat are decisions taken by, and resolution passed by the members of the company, and not the company itself. They are therefore in the postion of strangers to the order and not in contempt by their act in voting as they please, whatever its effect may be."
Having so put the contentions, the learned Judge said.
"In my judgment, these submissions of counsel for the directors are correct. I think that in a nut shell the distinction is this. When a director votes as a director for or against any particular resolution in a directors' meeting, he is voting as a person under a fiduciary duty to the company for the proposition that the company should take a certain course of action. When a shareholder is voting for or against a particular resolution he is voting as a person owing no fiduciary duty to the company who is exercising his own right of properly to vote as he thinks fit. The fact that the result of the voting at the meeting (or a subsequent poll) will bind the company cannot affect the position that in voting he is voting simply as an exercise of his own property rights.
Perhaps another (and simpler) way of putting the matter is that a director is an agent, who casts his vote to decide in what manner his principal shall act through the collective agency of the board of directors; a shareholder who casts his votes in general meeting is not casting it as an agent of the company in any shape or form. His act, therefore, in voting as he pleases cannot in any way be regarded as an act of the company".
Having so stated the law, the learned Judge treated the shareholders, who acted in the face of the given undertaking, as third parties, unless found aiding and abetting could not be charged for contempt. In this case, the learned Judge accepted the proposition as a general statement of law that where a court makes an order directing a party to an action to observe or do some act, this does not impose an obligation on someone who is not a party to the action to do anything, but observed,
"If applied to the directors of the company subject to such an order of the court it is misleading. The directors, although not in express terms parties to the action, do come under an obligation to procure that the company acts in conformity with the order of the court, for the simple reason that if they did not there would never by any effective remedy of this nature against a company..... I have no doubt that where conditional contract is entered into-conditional, for example, on the shareholders approving an increase in the capital of the company there is, in general, no duty on the company to procure the fulfilment of the condition....."
There is yet another observation in the judgment, "It would, of course, be otherwise if one could envisage any circumstances in which an order was made by the courts on a company to do something, for example to increase its capital (as distinct from using its best endeavours to increase its capital), which must of necessity involve the shareholders voting in a particular manner. But I at any rate cannot envisage any ordinary situation (as distinct from for example, situation where all the shareholders were before the court and bound by the order) where such an order would ever be made."
In other words, Walton, J treated the undertaking on behalf of the company to be one depending upon the precise condition and the precise construction of the nature of the order and undertaking and the conditions of contract under which the directors of the company functioned, but found it rather difficult to anticipate a situation in which any order could be passed in the absence of the shareholders as party to the proceeding to bind them.
34. In Z Ltd. v. A (1982) 1 All ER 556 Lord Denning read 3 judgment on behalf of the Court of Appeal adopting a device as parties in the case were cancelled by the letters of the alphabet, and stated the guidelines on the issue of assets under a special direction called mareva injunction effecting bank accounts and other assets and observed,
"Once granted, a Mareva injunction has immediate offect on every asset of the defendant covered by the injunction, because it is a method of attachment, which operates inrem in the same manner as the arrest of a ship and because any authority which third parties may have to deal with the asset in accordance with the instructions of the defendant is revoked once such third parties have notice of the injunction."
35. The case of Attorney General v. Newspaper Publishing PLC, (1987) 3 WLR 942 is a judgment of the Court of Appeal of England which states the legal position and development of law with regard to violation of an order of injunction and contempt, Three judges constituting the bench Sir John Donaldson, M. R. Lolyd and Balcombe L. JJ. delivered their separate judgments and answered questions which appear to be relevant for this case. They recoreded opinion in an appeal by the Attorney-General against the decision of Sir Nicolas Browne-Wilkinson V. C., on a point of law,
"Whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the fooling that it assaults or interferes with the process of justice in relation to the said injunction."
In the first judgment, it is said,
"I now return to the judgment of Sir Nicolars Browne-Wilkinson V.C. "(a) In no case (apart from Smith-Barry v. Dawson, the Irsh case) has a third party, C., been held to be in contempt of an order restraining a named person, B from doing an act unless C has been privy or party to the doing of an act which is a breach of precise terms of the order."
If Smith-Barry v. Dawason, (1891) 27 LR Ir 558 is accurately reported, there was some confusion between the species of contempt which consists of disobeying, or assisting in the disobedience of an order of the court and that which consists of interfering with the due administration of justice, and this may have stemmed from the fact that no argument was addressed on behalf of the alleged contemnors. Mr. Smith Barry had been declared by a final judgment, to which the alleged contemnors were not parties, to be entitled to possession and to quiet enjoyment of his patent rights to hold a market in the Fair Green. The alleged contemnors had held a rival market in the Fair Green with knowledge of that decision and of the fact that an injunction had been granted against the defendant in the action prohibiting him from holding such a market. Hedges E. Chatertn said, at pp. 559-560 that the alleged contemnors were;
"In my opinion, in just the same default as the original defendants would have been if they had done similar acts. (But) the cases cited clearly establish the right to have these attachments issued, and nothing can be more in point than the Killiney Foreshore case (unreported). But even without any of these authorities, ordinary commonsense would show that persons cannot be allowed to set at definance the order of the court because they do not happen to be named in the injunction."
If in an action between A and B for the possession of a dwelling house, B is ordered to give up possession and to refrain from retaking possession, As remedy, if someone, C, subsequently tries to dispossess him, is an action against C, not proceedings for contempt of court in disobeying an order to which C was never a party and in the breach of which he was not assisting. So long as the full importance of Sir Nicolas Browne-Wilkins on V.C.'s words "contempt of an order" are appreciated, I consider that this represents the law. The Attorney-General does not allege that the defendants are up contempt of the orders made in the Guardian and Observer actions or assisted in doing an act which is a "breach of the precise terms of the order," i.e. terms which restrained conduct by the Guardian and the Observer, their servants, agents, etc. He claims that, given the fact that these orders had been made with a view to preserving the subject matter of the dispute, destruction of that subject matter is an interference with the due administration of justice and so a contempt of court.
"(b) Under English law an injunction can only properly restrain a party to the proceedings from doing an act, although it may restrain him from doing the act 'by himself, his servant or agent.'"
This appears to be a wholly correct statement of the law (Marengo v. Daily Sketch and Sunday Graphic Ltd., (1948) 1 All ER 406 hut it is capable of being misleading. The form of order now usually adopted which enjoins the defendant "by himself, his servant or agent" does not enjoin the servants or agents at all. All that the additional words do is to serve as a warning to such servants and agents that they should not assist in the doing of the prohibited act. If they do so, they will not have disobeyed the order, but they will have interfered with the due administration of justice and may be liable to be proceeded against on that account.
That this is the position is made even clearer by the two motions Lord Wellesley v. Earl of Mornington (1848) 11 Beav. 180 and Lord Wellesaley v. Earl of Mornington (No. 2) (1848) 11 Beav, 181. There the injunction Order omitted any reference to servants or agents. Lord Langdale M. R. dismissed the first motion to commit Mr. Batley, the Earl's land agent, who had cut down some trees which the Earl had been forbidden to cut. He did so because the motion was based upon an allegation that Mr. Batley had acted in breach of the order. As Lord Langdale M. R. pointed out, the order was not addressed to Mr. Batley and he was not enjoined thereby. However, the second motion accused Mr. Batley not of breaching the order, but of knowingly assisting in a breach of the order and thereby obstructing the process of the court. As Lord Langdale M. R. put it at p. 183:
"If the matter had been pressed, I should have found it my duty to commit Mr. Bailey for his contempt in intermeddling with these matters....."
(c) As a result of (a) and (b) above, there is no English case in which a third party, C, has been held in contempt for doing any act which does not constitute a breach by the defendant enjoined, B, of the precise terms of the Orders."
I am not sure whether this adds anything to (a) and (b). Whilst it certainly records that no one has been able to find a reported decision involving a finding of contempt by C, where the act complained of was intimately related to an order against B but did not involve assisting in doing that precise act, I am not sure of its significance, save that it underlines the fact that this is a novel situation. There is at least one case in the books which, if C had acted differently, would have raised the point. This is Galaxia Maritime S.A. v. Mineral import -- export (1982) 1 W.L.R. 539, where A obtained a Mareva injunction against B ordering B not to remove his assets from the jurisdiction including, in particular, cargo loaded on C's ship. C. for his own purposes --he wished to have the use of his ship and to allow the crew to get home for Christmas - -and regardless of the wishes of B wished to remove his ship from the jurisdiction with or without the cargo. Capplied successfully for the injunction to be discharged and seems, to have assumed, as the court also assumed, that absent permission from the Court or the discharge of the injunction, the ship could not sail. I think that C was right, but had the ship sailed with the cargo, it cartainly could not have been said that he was in breach of the precise terms of the order which prohibited B exporting the cargo and still less that B would have been in breach.
"(d) The plaintiff in the proceedings, A, an apply for the committal of C even though the act of C is a criminal contempt,"
This is an historical anomaly arising out of the classification of contempts as civil and criminal. If instead, they are classified as contempts involving (a) disobedience or assisting in the disobedience of orders and (b) other conduct interfering with the administration of Justice, there is no problem. A can apply in category (a) and the Attorney-General can apply in category (b). In any event it appears to cast no light upon what has to be decided in this appeal.
"(e) The principle underlying the law that C is in criminal contempt if he is party to a breach of the Order is that the court will not allow its order to be knowingly flouted, thwarted or frustrated by any person even though he be a stranger to the action."
This is quite correct bul, I think, nihil ad rein. The three newspapers were not parties to breaches of the actual orders in the Guardian and Observer actions which prohibited publication by those newspapers. In publishing as they did, they were intending to serve their own interests or their view of the public interest and certainly not the interests of the Guardian and Observer.
Based on these propositions of law, Sir Nicolas Browne-Wilkinson V.C. said that it seemed to him that the Attorney-General was seeking to widen the application of the law of criminal contempt, albeit in accordance with established principle. This I am unable to accept. "I he law of contempt is based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice. Its application is universal. The fact that it is applied in novel circumstances, for example to the punishment of a witness after he had given evidence (Attorney-General v. Butterworth, (1963) 1 QB 696), is not a case of widening its application. It is merely a new example of its application. In that case, as here, the trial judge, Nocatta, J., relied upon the fact that there was no such case in the books, but the court held that that was a distinction of fact, not principle; per Donovan, L..I. at pp. 724-725.
Next, and this is really the final stage in his reasoning a part from the practical considerations with which I must deal hereafter, Sir Nocolas Browne-Wilkinson V. C., said, anti, p. 955 F-F;
"the question which I have to decide whether, due to the chance that there is in existence an order of the court preventing the Guardian and the Observer from publishing, the appropriate sanction is contempt of court."
At the risk of appearing to be a carping critic and I repeat my tribute to the clarity of his Judgment -- I think that the Vice-Chancellore misdirected himself in thus formulating the question. Contempt of court is not a sanction. Contempt of court is lawful conduct, the sanction for which is imprisonment, attachment, a fine or an order to pay costs. So the question should at least be rephrased to read:
"Whether, due to the chance that there is in existence an order of the court preventing the Guardian and the Observer from publishing, the conduct of 'The Independent'. 'The London Evening Standard' and 'The London Daily News' was unlawful as constituting an interference with the due administration of justice."
But even this is not correct. "Chance" is not the right word. The existence of the restraining orders against the Guardian and the Observer was a fact. It was only a chance in the sense of being what I believe is known across the Atlantic as a "happenstance" - a past circumstance which was not created by any of the principal actors. So I would substitute "fact", for "chance", whilst at the same time appreciating that I have to consider whether it is a very material fact, one which made any real difference.
This brings me to the very interesting and, as 1 think, crucial decision is In re X (A Minor) (Wardship : Injunction) (1984) I WLR 1422. There Balcombe, J. made an order prohibiting publication of information about the word by the "News of the World", which was a party, and any other person who should have notice of the order. It was effective in fact and I am wholly satisfied that it was also effective in law. What is interesting is why it was effective in law.
As Sir Nicols as Browne-Wilkinson V.C. pointed out, English civil courts not in per-sonam. They adjudicate disputes between the parties to an action and make orders against those parties only. This is true even in proceedings under R.S.C. Ord. 113, which permits proceedings against "Persons unknown." They become parties. What is not permissible is to make an order against a stranger to the action. In Ivason v. Harris, (1802) 7 Vas. Jum. 251 256, Lord Eldon L.C. said:
"I have no conception, that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause."
Yet that is what Balcombe, J. purported to do. To say that the jurisdiction of the court in wardship involves a peculier parental or administrative responsibility to which the disposal of controverted questions is only incidental is no explanation. This only means that this jurisdiction is unusual in the extent to which it involves extended judicial supervision throughout the wardship, which may last for years.
I sympathise with the position in which Balcombed, J. found himself. The proper discharge of the wardship by the court in the exercise of the ancient duties of parents patrieae made it essential that there should be no publication and he had to find a way of achieving this result. But had any newspaper, other than the "News of the world", published details of the ward and had the Attorney-General sought to commit it or its editor for contempt consisting of disobediance of the order, the motion would have been dismissed, it would have been a reply of Lord Wellesley v. Earl of Mornington, (1848) 11 Boav. 180, which would have been indistinguishable. The fact that the order was addressed to the alleged contemnor would rightly have been disregarded as done without jurisdiction. But if the Attorney-General had moved instead upon the ground that the publication interfered with the administration of justice (Lord Wellesley v. Earl of Mornington (No. 2), (1848) 11 Beav. 181), he would have succeeded and the fact that publication had taken place notwithstanding the warning conveyed by the form of the order would have been an aggravating circumstance."
36. Lloyd, L.J., in his separate judgment agreed with the proposition that in no case other than the Irish case of Smith-Barry v. Dawson, (1891) 27 LR Ir 558, has as third party, not subject to the Order of the court, been held liable for contempt for doing an act which is prohibited except by aiding the person enjoined, and the proposition that while it is open to the court to extend the law, nevertheless the court should be wary of doing so, since the liberty of the subject is involved, but made his independent comments upon whether to apply the law of contempt to a person who is not a party to the order in question would not only widen the application of the law, but also infringe a fundamental principle that the courts do not make orders against all the world and said that the court acts in personam. Accordingly its orders only operate in personam, never in rem and to hold that a person who is not party to the order and not party to the breach of the order as aider and abetter may nevertheless be liable for contempt on the ground that he has contravened or frustrated the spirit of the order will not be proper. Referring to Sweaward v. Paterson (1897-1 Ch 545) (supra) and other cases, learned Judge held,
"Although there are dicta in Sweaward v. Paterson, (1897) 1 Ch. 545 and Lord Wellesley v. Earl of Mornington, 11 Beav. 180 which may be said to support a wider principle, I regard those cases and having decided, and decided only that a person may be liable in contempt if, with knowledge of the order, the aids and abets a breach of the order by the person enjoined. The same is true of Z Ltd. v. A-Z and AA-LL, (1982) QB 558. It was held in that case that the bank would be liable for contempt if, with knowledge of the Mareva injunction, it enabled its customer to act in breach of the terms of the injunction, even though the injunction had not been served on the customer. The customer could not, of course, be liable in contempt himself until notice of the injunction had been properly served. But he could breach the injunction as soon as it was granted, and the bank could therefore be liable in contempt for aiding and abetting that breach....I would only add, before leaving the cases, that it would be an improvement of this branch of the law if aiding and abetting a breach of a court order were re-classified as a civil contempt rather than a criminal contempt. The best course would no doubt be to abolish what remains of the distinction altogether, in accordance with the recommendation of the Phillimore Committee, Report of the Committee on Contempt of Court (Crand. 5794). But if the distinction is to remain, it does not make sense that a stranger to the order, who aids and abets a breach, should be criminally liable while the person to whom the order is directed and who himself commits a breach should only he liable for civil contempt. That is the sort of nonsense which does no credit to the law, as was pointed out forcibly enough by Lord Atkinson nearly 75 years ago in Scott, (1913) AC4I7".
Coming to the third step to apply the law of contempt to a person who is not a party to the order in question he said,
"It is when he comes to the third step in his reasoning that I begin with great respect, to part company from Sir Nicolas Browne-Wilkinson V.C.I accpet, of course, that it is a fundamental Principle with certain very limited exception, of which the best established is wardship, that our courts act in personam. As Lord Eldon L.C. said in Iveson v. Harris, (1802) 7 Ves. Jun. 251, 256:
"I have no conception, that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause".
That dictum was repeated with approval by Lord Uthwatt in Marengo v. Daily Sketch and Sunday Graphic Ltd., (1948) I All ER 406, 407; see also, Brydges v. Brydges and Wood (1909) P 187, 191.
But the question here is not whether a third party is bound by the injunction, but whether he can be liable for contempt even though he is not bound by the injunction. He cannot be liable in contempt for breach of an order to which he is not a party; nor, on the facts of the present case, could the respondents be liable for aiding and abetting a breach. But it does not follow that they may not be liable for interfering with the course of justice. Thus, to take a wholly improbable example in order to illustrate the point; suppose a party to certain proceedings assaults or abuses the judge; suppose the judge make an order against him in the proceedings prohibiting him from repeating his abusive conduct. If a stranger comes to court and abuses the judge in like manner, it will surely not be a defence to a charge of contempt that he was not a party to the order. His conduct amounts to a contempt of court independently of any order made in the proceedings. Nor would holding such a man liable for contempt create any undesirable uncertainty or injustice. He is assumed to know that abusing the judge is a contempt of court. Ignorance of the law will afford him no more excuse in this than in any other branch of the criminal law.
It may be said that abusing the judge is an obvious contempt, whereas interfering with the course of justice, in particular proceedings is much less precise. This is true, Moreover I would accept that not all acts which are calculated to interfere with the course of justice will necessarily ground a charge of contempt. The act must be sufficiently serious and sufficiently closely connected with the particular proceedings. But in the present case the conduct relied on by the Attorney-General is not marginal. It is not a mere prejudging of the issue to be decided in the particular proceedings. It is not a mere usurpation of the court's function. It is the destruction, in whole or in part, of the subject matter of the action itself. The central issue in the Guardian action is whether "The Guardian" should be restrained from publishing confidential information attributable to Mr. Wright. Once the information has been published by another newspaper, the confidentiality evaporates. The point of the action is gone. It is difficult to imagine a more obvious and more serious interference with the course of justice than to destroy the thing in dispute".
37. Balcombe L.J., in his judgment has also accepted that a third party may be charged for criminal contempt but not civil contempt and stated his opinion in these words,
"Although I hope I have made it clear in the earlier part of this judgment that the reason why I consider that the publications of the respondents are capable of constituting criminal contempt of court is because they interfered with the administration of justice and not because they disobeyed orders made in the Guardian/Observer actions which were not addressed to them, I am conscious that this conclusion is reached by a sophisticated argument which may not be readily appearent to the layman. It seems to me that it would be preferable, in an appropriate case, where it is apparent that the subject matter of an action (e.g. confidential information or a secret process) could be destroyed by its publication by any person, whether a party to the action or not, for the court to make its initial protective order in terms which make it clear to third parties that they, too, must not destroy that subject matter. The question is whether the court has power, in an appropriate case, directly to order third parties not to destroy the subject matter of the action. The general principal was stated by farewell LJ. in Brydges v. Brydges and Wood (1909) P. 187, 191:
"But the court has no jurisdiction, inherent or otherwise, over any person other than those properly brought before it as parties or as persons treated as if they were parties under statutory jurisdiction (e.g., person served with notice of an administration decree or in the same interest with a defendant appointed to represent them), or persons coming in and submitting to the jurisdiction of their own free will, to the extent to which they so submit (e.g., creditors of a bankrupt executor, who has carried on business under a power in the will, coming in to claim against the testator's estate in order to obtain subrogation to the executor's right of indemnity). But the courts have no jurisdiction to make orders against persons not so before them merely because an order made, or to be made, any or will be ineffectual without it. Even in the case of an injunction Lord Eldon says in Inveson v. Harris, (1802) 7 Vcs. Jun. 251, 256: I have no conception, that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for f he purpose of the cause. The old practice was that he must be brought into court, so as according to the ancient laws and usages of the country to be made a subject matter of the writ".
See also Ranson v. Platt, (1911) 2 KB 291 and Marango v. Daily Sketch and Sunday Graphic Ltd. (1948) 1 All ER 406. The last case, being a decision of the House of Lords, is clearly binding on this court, unless there is any relevant exception to the general rule. That there is at least one exception appears from a case of my own at first instance, In re X (A Minor) (Wardship: Injunction) (1984) 1 WLR 1422. In that case I held that, in the exercise of the wardship jurisdiction, there was power to make an order (prohibiting the publication of information about the ward) binding on the world at large, when persons who were potentially subject to that order had not been parties to the proceedings in which the order was obtained, with all respect to Sir John Donaldson M.R., that was the ratio of decision, and I still believe it to have been correct. It is true that I then said that I was satisfied that, if it were not an exercise of the parental jurisdiction in wardship, there would be no such power, but the question whether there might be other exceptions to the general rule was not then before me. I believe that there can be another exception to the general rule which would enable the court to make an order, binding on fhe world at large, in the circumstances of the present case, where such an order may be appropriate to preserve the subject matter of an action pending trial. The law of contempt is but one example of the court's ability to regulate its own procedure so as to ensure that justice prevails. The rule that courts normally act only in personam is but another example of the same process. If the court needs to ensure that the subject matter of an existing action be preserved against all comers pending the trial of the action, then in my judgment the court can obtain the desired result by introducing another exception to the general rule that the court acts only in personam. I can find nothing in the cases to which I have referred, in which the general rule is stated, to say that the rule is wholly without exception, and it is not without significance that the Canadian courts have felt themselves able to make such orders".
38. Courts in United Kingdom, it appears, understand the distinction between civil contempt and criminal contempt as we understand in India and accept a broad classification, which has been recognised by our Courts as well as the Contempt of Courts Act, 1971. But their thinking has since developed and they appear to approach the problem with a reclassification as (a) a conduct which involves a breach, or assisting in the breach of a Court order and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case, or more generally, as a continuing process, the first category being a special form of the latter, such interference being a characteristic common to all contempts. The distinction between the two categories is that in gereral conduct which involves a breach, or assisting in the breach, of a court order is treated as a matter for the parties to raise by complaint to the court, whereas other forms of contempt are in general considered to be a matter for the Attorney Advocate General to raise. In doing so, he acts not as a government minister or legal adviser, but as the guardian of the public interest in the due administration of justice, In the case of the former, the Courts do not only intend to punish in the form of committal, attachment or fine, but also strike out all or part of a claim or refuse to entertain the whole or part of a defence. Courts in United Kingdom also maintain that an injunction can only restrain a part of a proceeding from doing an act although it may restrain him from doing the act from himself or his servants or agents and a third party is not held to be in contempt of an order restraining a named person except that person, who aids and abets the commission of the breach. Rarely, any exception was made like in the case of Mareva injunction. They however took notice of the violation at the hands of the third party as a conduct interfering with the administration of justice and treated it as a criminal contempt. As noticed in the citations above, the law of contempt in United Kingdom is based upon the broadest of the principle viz., that the Courts cannot and will not permit the interference with the due administration of justice. Its application is universal and it is applied in novel circumstances, Facts of a given case alone justify new example of committal action. In the wardship injunction afore referred to, one such exception had been made. We find that the above rules has been confined to United Kingdom but it has been extended by the Canadian Courts also, at least once stated by the Viscount Haldane L.C. in SCOTT v. SCOTT, (1913) AC 417, 437, "white the broad principle is that the Courts of this country must, as between the parties, administer justice in public, this Principle is subject to apparent exceptions, such as these to which I have referred to. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is one. In the two cases of wards of court and of lunatice. the court is really silling primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative and disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end must accordinly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must be as of necessity saperseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the Judge as restingin his mere discretion as to what is expedient. The latter must trest it as one of principle, and as turning, not on convenience, but on necessity."
39. In the case of S. N. Bannerjee v. Kuchwar Lime and Stone Company Ltd., AIR 1938 PC 295 : 68 Cal LJ 488, the Privy Council in an appeal from a decision of the High Court, Patna applied the rule of law as stated in Sfaward v. Patfrson (1897-1 Ch 545) (supra) and stated.
"The respondents, however, contended that even if the Secretary of State was not 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 Avery v. Andirews, (1882) 51 U Ch 414 and Sfaward v. Pa'terson, (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 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 in the cases referred to nor do they think it is sound in principle."
40. A Special Bench of the Patna High Court in Pratap Udal Nath v. Sara Lal, AIR 1949 Patna 39 considered a case of disobedience of an injunction decree and held that equity acts in personam and reiterated the aforementioned law in Sfaword v. Paterson (1897-1 Ch 545) in these words,
"Equity acts in personam, and an injunction is a personal matter. The Ordinary rule is that it can only be disobeyed in contempt by persons named in the writ. None of the opposite parties in present case were defendants in the suit or named in the decree. Mr. B. C. De, for the petitioner seeks to overcome this difficulty upon the principle laid down in Avery v. Andrews, (1882) 51 U Ch 414 : 46 LT 279 and Sfaward v. Paterson, (1897) 1 Ch 545 : & 6 LJ Ch 267 to the effect that persons not party to the injunction may be proceeded against for contempt for aiding and abetting the breach.
There can be, however, no question of aiding and abetting where there is no principal offender. There is no one whom the opposite party can be said to have aided and abetted. The principle, in my opinion, is not therefore applicable; and it seems to me that the decision of the Privy Council in the case of S. N. Banerji v. Kuchwar Lime & Stone Co. Ltd., ILR 17 Pat 770 : AIR 1938 PC 295 is conclusive upon that point."
41. In P. K. Kripalani v. Mahabir Ram Saha, , where a sub-tenant resisted the execution of the order, a Division Bench of the Calcutta High Court said that committal for contempt is a serious matter and the jurisdiction nust be exercised with scrupulous care only in a case which is clear and beyond reason doubt. Such an order should never be made if the case is doubtful. It is for the petitione: making for the committal of another for contempt to justify clearly that the order should be passed. If he fails to do so, no order should be made. Bench also said that a person bona fide claiming to be rightfully in possession of property, is entitled in law to resist a court officer from ousting him in execution of an order of Court passed in a proceeding to which he was not a party. The Court held, (at p. 453 of AIR).
"The rule clearly is that the wilful disobedience to an order of a court requiring a person to do an act, other than the payment of money is a contempt : Halsbury's Laws of England (2nd Ed.) Vol. VII p. 30 Art. 42. But that rule does not, in our view, help the petitioner in the present case, and this for two reasons. First, in order that the rule may apply there must be an order on a person to do an act and in this case there is no such order. All that the order of Roxburgh, J. does is to direct the bailiff to deliver possession : it does not direct any other person to do any act. There is no question here, therefore, of any person disobeying an order, unless it is the bailiff. The case of Iberian Trust Ltd. v. Founders Trust & Investment Co. Ltd., (1932) LR 2 KB 87, 95 may be usefully compared with the case in hand. That was also a case of contempt for not carrying out an order of the court and it failed on the ground that there was no order on the defendant, the alleged contemnor.
Luxmoore, J. Said:
Now, turning back to Rowlatt, J.'s order, what is it that the defendant company have been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything, it says: "that the plaintiffs to have a return of the said shares within fourteen days". Am I to spell out of that an order on the defendant company to do something ? I think not. if the Court is to punish any one for not carrying out its order the order must in umahiguous terms direct what is to be done.
Secondly, the opposite party No. 2 being no party to the proceedings resulting in the order of Roxburgh, J., that order could not have directed him to do anything. As Lord Eldon pointed out in Ivcson v. Harris, (1802) 7 Ves. 251, it was not competent to the Court, "to hold a man bound by an injunction, who is not a party "in the cause for the purpose of the cause." See also S. N. Bannerjee v. Kuchwar Lime & Stone Co. Ltd., (1939) 43 Cal WN 197 : (A1 R 1938 PC 295). The order of Roxburgh, J. not being therefore an order on the opposite party No. 2 there is no question of his disobeying that order or committing contempt by any disobedience thereof. It may be that if the opposite party No. 2 is a tenant of opposite party No. 1, as he claims to be, the order may have been binding on him in certain circumstances under R. 35 of O. 21 of the Code of Civil Procedure, as was held in Yusuf v. Jyotish Chandra Banerji, (1932) ILR 59 Cal 739 : (AIR 1932 Cal 241). But this would not make the Order an Order on the opposite party No. 2 for the order is binding on him only in the sense that it may have been executed by removing him from possession notwithstanding that he was no party to the proceeding in which the order was made. This therefore is not a case in which the opposite party No. 2 can be said to have committed contempt by disobeying an order of Court."
The Calcutta Court thereafter posed a question, can it then be said that the opposite party No. 2 is guilty of contempt by obstructing the course of justice and settingthe process of the Court at naught ? and answered, .
"If he did so he would undoubtedly be guilty of contempt and this although he was no party to any proceeding in court which was obstructed thereby; Cooper, v. Asprey, (1864) 3 B & S 932. It is contended on his behalf that he cannot be said to have done that in this case as no interference with the process of the Court. Possession was retaken from the petitioner after it had been delivered to him by the plaintiff, after, as it was put, the force of the order had expired and therefore there was in this case in any event, no obstruction to the course of justice whatever other offence or civil wrong the retaking might have amounted to. On that facts of the present case it does not seem to us that the argument is tenable. What happened was that the opposite party No. 2 was present all along when the plaintiff was delivering possession to the petitioner and he offered no resistance then nor attempted to retake possession till the bailiff had turned his back. It is quite obvious that the opposite party No, 2 only lay by so as to mislead the bailiff into believing that there was no opposition to possession being delivered to the petitioner. The retaking of possession followed so soon after the delivery of possession as in reality and substance to amount to being part of the delivery of possession and therefore to obstructing the bailiff in carrying out the order. A person who retakes possession of land from a party who had recently obtained possession of it by a writ has been held to be guilty of contempt ; Oswald on Contempt (34d Ed. p. 88, relying on In re Higg's Mortigage, Goddard v. Higg, 1894 WN 73. Again in Lacon v. De Grost, 1893 10 TLR 24 it appears that the Sheriff had been able, after much trouble, to execute a writ it and deliver possession of certain premises to the party entitled to possession under an order of court, but immediately after the Sheriff had gone away, the defendant and his men retook possession with the help of a riotous mob from the party to whom possession had been delivered by the Sheriff and they were held liable in contempt. Learned counsel for the contemnors had argued that "the writ in fact had been executed, and so there "was no ground for a proceeding for contempt". Baron Pollock said, in his judgment in this case.
In case like this, where judgment had been given that the plaintiff shall recover possession of premises and a writ has been issued to the Sheriff to deliver possession; if the officer has been apparently put in possession and the difendent chooses at some later time to change his mind and come back to the premises and by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him does not fully and honestly give up possession, but only colourably does so, the Judge applied to may and ought to find that the process of the court had not been obeyed, and that there had been contempt of court. In the present case the practical test was this; if the Sheriff's officer had known what was intended he certainly would not have left the premises.
We are clearly of the opinion that in this case also, if the bailiff had suspected the intention of the opposite party No. 2, he would not have left when he actually did. The act of this opposite party, therefore, was as if he had in reality ousted the bailiff from possession. Prima facie it would therefore appear that he was guilty of contempt. It makes no difference that he was no party to the action, for a stranger has no more right than a party, wilfully and wrongfully to oust the court's officer from possession or prevent him from carrying out the Court's order."
42. A Division Bench of the Orissa High Court in Santosh v. Birachandra, also reiterated the same view saying that the offence of contempt committed by disobedience to order of injunction by a person not a party to the injunction is limited to case a where he aids and abets the party enjoined in the breach and on the facts of the case, held (Para 10):
"Admittedly, the appellant Sarpanch was not a party to the order of injunction passed by the Subordinate Judge on April 8, 1962 in Miscellaneous Case No. 33 of 1962 in Connection with the arbitration case against the Union of India and the State of Orissa, who alone were parties in the said proceedings. The question is can it be said that the appellant Sarpanch had in any way aided or abetted the persons so inhibited in breaking the injunction? Our answer is 'No'. The name of the appellant Sarpanch was not mentioned in the order of injunction. In view of the position that the injunction was issued by the Court against the Union of India and the State of Orissa alone in respect of the plots in dispute and further that the injunction order made no mention of their servants and agents, the appellant Sarpanch cannot be found guilty for disobeying the injunction."
43. One of the earlier judgments of the Calcutta High Court in Kailas Chandra v. Sadar Munsif, Silchar, AIR 1925 Cal 817, considered a case of an injunction with respect to a meeting of a company, which had been announced to take place on a certain day. Previous to that day, a suit was instituted for declaring that the petitioner and certain other persons are not competent to act as shareholders. A temporary injunction was asked for restraining the defendants from acting as shareholders of the company. The Court passed an injunction not restraining the shareholders in question from voting at the meeting, but restraining the company from holding a meeting until further orders. The order was not served on the petition. On the day of the meeting, some of the shareholder including the petitioner porceeded to a private house and held a meeting whereby they purported to appoint directors, etc. The petitioner was not a party to the suit. The Court on such facts held,
"These are the facts and one has only got to state them to see that there has been an error at every stage in these proceeding.....There are proper ways in which a meeting of a company can be called either by the directors in accordance with the provisions of the Articles of Association or by the shareholders on requisition, also in accordance with the provisions of the Articles of Association. There is only other way of which I know, apart from any special Articles of Association, that a meeting of a company can be called and that is by a direction of a court to the Liquidator in winding up proceedings. The mere fact that certain persons who happened to be shareholders of the company met together at a private house and purported to pass resolution appointing directors and so on does not make that a meeting of the company. For a meeting to be a meeting of the Company it must be a meeting convened, in one of the ways to which I have referred and convened strictly in accordance with the Article of Association. The result is that the order of the 27 June, 1924 was wrong and there was no breach of that order as no meeting of the company was held on the 18th of May 1924 as the Munsif seems to have thought".
44. In Narain Singh v. Hardayal Singh, , the Court found the Executive Officer of a Municipal Committee guilty of contempt of the disobediance of an order passed against the Municipal Committee basically on the principle as Courts in England punish for contempt strangers aiding and abetting breaches of prohibitory orders, thereby obstructing the course of justice, but referred to 12 Amn. Jur. para 26 which states,
"The violation or disobedience of an injunction order issued by a Court having jurisdiction in the matter, when committed by a party to the injunction suit or by a third party having actual notice is a contempt of court.....This rule is not confined to parties to the injunction. One who is not a party to the injunction suit, but who is within the class of persons whose conduct is intended to be restrained or who acts in concert with a party litigant or with a third party is guilty of contempt. Persons who act as agents, servants, associates or confederates of parties to the injunction suit may be held guilty of contempt in doing acts forbidden by the injunction order."
45. A Division Bench of this Court in N. Senapathi v. Sri Ambal Mills, has stated the law in a case wherein an objection was taken to the rerritorial jurisdiction of the Court of District Munsif, Coimbatore in issuing an order of injunction against the first respondent company. Under the said order, holding an extraordinary general meeting of the company was inhibited. However, several persons were brought in the contempt proceedings including the 1st respondent Company, Managing Director of the company, another director of the company and an advocate, who was the legal adviser of the company. It appears that the notice of the orders of injunction had been served telegarphically to respondents t and 2 informing them of the prohibitory orders. Petitioner himself went to the notified place of meeting at 9.30 a.m. on 14-12-1964. He found the shareholders and directors present including the respondents. Petitioner informed those persons of the ex parte interim injunction and pointed out that holding and passing the contemplated resolution would amount to flouting the orders of the Court and to contempt of court. In spite of this, apparently due to an earlier wirttcn legal opinion furnished by the 11th respondent concerning the validily and legal effect of the interim orders of injunction, the meeting was actually held and the resolution was passed. The Bench said (Paras 7 and 9):
"We have been at some pains to examine the law on this aspect of the flouting of an order of Court, which may be passed without territorial jurisdiction, for, it seems to as that this is of some importance and cases might arise frequently in actual judicial administration. It seems to be abundantly clear that the question whether a court has territorial jurisdiction or not, when one defendant indisputably resides within such jurisdiction and the other ex facie does not, is primarily a question of fact for the court to decide. For instance, it may depend on such a matter of evidence as the location of a particular milestone in relation to a house of business, or the house of a private individual. Even if such jurisdiction were altogether lacking, it could be easily cured under Section 20(b) of the Code of Civil Procedure, either by an order of special leave of court, or by the acquiescence of the concerned party. Where neither of these elements is available, we may assume that Prima facie, the Court has no territorial jurisdiction to exercise its powers over the concerned defendant including a power to inhibit the acts of the defendant by an interim injunclion. But we do think that it is very important that a distinction should be made between a lack of jurisdiction which does not go to the root of the powers of Court, such as an absence of territorial or pecuniary jurisdiction or an alleged absence in these respects, and a lack of jurisdiction which is basic to the very organisation of Court, or to the scope of its powers. Authorities are available for the view that a mere absence of territorial or pecuniary jurisdiction does not proceed to the root of the matter of jurisdiction and is capable of cure by acquiescence by order of Court, or in other respects as provided for by law... An order irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed until by a proper application, it is discharged... It is sufficient to refer here to Halsbury's Laws of England, 3rd Edition, Volume 8 part I Sec. 3, sub-section 39 (also see Oswald on Contempt 1910 Edition 106 which runs thus):
"A stranger to an action who aids and abets the breach of a prohibitory order obstructs the course of justice and this contempt is punishable by committal or attachment."
There are several English cases cited in the books in support of this authority. Hence as far as these other respondents are concerned, they are undoubtedly guilty of contempt, whether they were parties to the order or otherwise so long as it was brought to their notice that the meeting was prohibited and nevertheless they participated in it.
46. We can see thus clearly that the Courts in India invariably accepted the law applied in England and found (1) a party to the suit if he had notice or knowledge of the order of the Court and (2) a third party or a stranger, if he had aided or abetted the violation with notice or knowledge of the order of injunction guilty of civil contempt and otherwise found a (bird party guilty of criminal contempt if he has been found knowingly obstructing implementation of its order of direclion, if ii is found in the instant suit that Sri Shukla was directly or indirectly a party defendant in the suit and the order of the learned single Judge was directed to his conduct also and he violated the order after notice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt if he is found to have aided and abetted the violation of the order of the Court. Even otherwise it is found that he obstructed or attempted to obstruct the implementation of the Court's injunction/direction, he may be found guilty of criminal contempt provided he had the notice or the knowledge of the order of the Court. It will be only after a determination of the nature of the disobedience that it will be possible for the Court to say whether the procedure applied to a civil contempt shall be applied to the contempt proceeding in his case or the procedure applied to a criminal contempt will be applied (o it. In the former case, the learned single Judge shall be competent to proceed. In the latter case, it shall be before a Division Bench and subject to such conditions as are envisaged under the Contempt of Courts Act, 1971. We have however no hesitation, in view of the principles of law noticed by us that this Court's power as the Court of Record will extend not only to the determination of the contempt but also the determination whether on the allegations brought before it, a civil contempt is made out or a criminal contempt is made out and instead of any action of committal for contempt, the Court should make any such order which would be in the administration of justice or not. We 'have already noticed that there are provisions in Order XXXIX Rule 2A of the Code of Civil Procedure as a remedy for the violation of temporary or interim injunction. Besides what is contemplated under Order XXXIX Rule 2A of the Code of Civil Procedure, Courts have found another source of power in Section 151 of the Code of Civil Procedure and if that is also ignored for a moment, this Court's power as a Court of Record and a Court of Special jurisdiction is preserved under Articles 215 and 225 of the Constitution of India. There have been cases before several Courts in which when faced with situations that some order or direction was violated and the violation resulted in grave and serious injury, the Courts took the view that the Code of Civil Procdure is not exhaustive. There are cases which say that if remedy to do justice is not provided for in the Code or any other Act, the High Court must not fold its hands and allow injustice to be done.
47. In Bhagat Singh v. Dewan Jagbir Sawhney, AIR 1941 Cal 670, a learned Judge of the Calcutta High Court observed that the law cannot make express provisions against all inconveniences and that the Court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of what it alone exists.
In Manchar Lal v. Seth Hiralal, , the Supreme Court approved the above statement of law.
48. In Hari Nandan v. S. N. Pandita, , the Allahabad High Court has taken the same view, namely that when a party has been dispossessed in disobedience of the order of injunction, the Court can in exercise of its inherent power pass such order for ends of justice as would undo the wrong done to the aggrieved party. A similar view has been expressed in Magna v. Rustarn, .
49. Kerr on Injunctions, 6th Edition, Page 41 has said :
"But where the injury is of so serious or material a character that the restoring things to their former condition is the only remedy which will meet the requirements of the case, or the defendant has been guilty of sharp practices or unfair conduct, or has shown a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue, notwithstanding the amount of inconvenience to the other party, and though the expense thereby caused to him will be out of proportion to any advantage the plaintiff may derive from it."
50. In one of the recent judgments in Sujit Pal v. Prabir Kumar Sun, , a Division Bench of the Calcutta High Court has
reiterated this view and stated that "no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in O. 39 R. 2A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its inherent power."
51. A similar view has been expressed by a Full Bench of this Court in Century Flour Mills v. S. Subbiah, . The Full Bench has said (at pp. 271-272 of AIR),
"Since the matter is not res integra, the best way to approach the question is to refer to the decided cases and in the light of it, to come to a conclusion. Cases are agreed that, whether it is a stay order or injunction, essentially, there is no difference between them except that in the case of a stay order, it is addressed to the Court concerned and in the order, to the person inhibited from doing a certain thing. There is also no difference that so far as Order XXXIX, C.P.C. is concerned, it confers only limited powers and would not be of assistance in circumstances as in the present case.... In our opinion, the inherent powers of this Court under Section 151, C.P.C. are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not to allow the perpetration of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from S. 151, we should observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's order. But in this case it is not necessary to go to that extent as we held that the power is available under S. 151, C.P.C.
52. One important aspect of the case since there has been some arguments before us about it is, can it be said that for a breach of the injunction by a party or a stranger for aiding or abetting the breach alone, the Court's inherent power can be exercised and not in a case of a third party, who had the knowledge of the order, but decided to violate it, who may be guilty of obstructing the administration of justice still, will not be subject to any restitution order? This we feel needs no detailed discussion. No person can obstruct the path of justice. No one can escape by committing a gross and violent obstruction to the implementation of the order/direction of the Court. The only question relevant in such a situation will be, whether the right which such a person has pleaded has been acquired by the violation of the order or had existed in him independently unaffected by the injunction. There can be no other law than one stated above that no person should be allowed to reap the benefits of a wrong done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or criminal contempt. Whether it is a civil concept or a criminal contempt, it is a contempt of Court and the disobedience of the order in any case is an obstruction in the administration of justice. It has been urged however that any order of restitution or restoration of the status quo ante by the order of the Court should be as a consequence of the commission of the breach having been established. Reference has been made to certain procedure adopted by Courts in England that where judgments or orders of the Court are disobeyed, they are enforced by writ of sequestration or an order of committal. This however should not detain us beyond stating that even if it is assumed that the Court shall make an order of restitution or restoration of the status quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power, there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case.
53. In M. S. Gill v. C.E.C., , the Supreme Court has observed with respect to the power of the Court and the Chief Election Commissioner under Sections 97, 98 and 99 of the Representation of People Act and said (at pp. 884-885 of AIR),
"If a candidate whose return is challenged, has a case invalidating the challenger's election, he may set it up subject to the provisions in Section 97. Then comes the finale in Section 98. The High Court has three options by way of conclusive determination. It may (a) dismiss the petition (b) declare the election void and (c) go further to declare the petitioner duly elected. Side-stepping certain species of orders that may be passed under Section 99, we have to explore the gamut of implied powers when the grant of power is wide but needs incidental exercises to execute the substantive power... Everything necessary to resurrect, reconstruct and lead on to a consummation of the original process. May be, to give effective relief by way of complaint of the broken election, the Commissioner may have to be directed to hold fresh poll and report back together with the ballots. A recount of all or some may perhaps be required. Other steps suggested by other developments may be desired. If anything integrally linked up with and necessitated by the obligation to grant full relief has to be undertaken or ordered to be done by the election machinery, all that is within the orbit of the election court's power. Black's Law Dictionary explains the proposition thus;
"Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant. This understanding accords with justice and reason and has the support of Sutherland. The learned Additional Solicitor-General also cited the case of Matajog Dobey v. H. C. Bhari, , and
Commissioner of Commercial Taxes v. R. S. Jhaver, , to substantiate his thesis that the doctrine of implied powers clothes the Commissioner with vest incidental powers. He illustrated his point by quoting from Sutherland Frank E. Harack Jr. Vol. 3 "Necessary implications.
Where a statute confers powers or duties in general terms, all powers and duties, incidental and necessary to make such legislation effeetive are included by implication. Thus it has been stated.
"An express statutory grant of power of the imposition of a definite duty carries with it by implication in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. The behind the rule is lo be found in the fact that legislation is enacted to establish broad or general standards. Matters of minor details are frequently omitted from legislative enactments and if there could not be supplied by implication, the drafting of legislation would be an interminable process and the true intendment of the Legislature likely to be defeated. The rule whereby a statute, is by necessary implication extended, has been most frequently applied in the construction of laws relegating powers to public officers and administrative agencies. The power thus granted involves a multitude of functions that are discoverable only through practical experience.
A municipality empowered by statute to construct sewers for the preservation of the public health, interest and convenience was permitted lo construct a protecting wall and pumping plant which were necessary for the proper working of the sewer, but were essential to public health. A country school superintendent, who was by statute given general supervisory power over a special election, was permitted to issue absentee ballots. The power to arrest has been held to include the power to take finger prints and take into custody non-residents who were exempted from the provisions of a licensing statute."
54. Confronted with the provisions in Section 125 of the Code of Criminal Procedure which provides for grant of maintenance after adjudication the Supreme Court in Savitri v. Govind Singh Rawat, said,
"In the absence of any express prohibition it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the appellant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also takes several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa non potest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist) (vide Eral Jowitt's Dictionary of English Law 1959 Edn. p. 1797). Whenever any thing is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that some thing else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subject until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties".
This view has been expressed in a large number of cases including Nemai Chand Jain v. Lila Jain, , and Century Flour Mills Ltd. v. S. Subbiah, , and in a case under Section 18 of the Hindu Adoption and Maintenance Act on the question of interim maintenance, a learned single Judge of this Court in the case of D. Udayar v. Raja Rani ammal, has said (at p. 371 of AIR),
"When the jurisdiction of the Court is attracted by filing a suit the Court has power to make interlocutory orders in aid of the suit. Denial of status does not take away the jurisdiction of fhe Court.... Bearing the general principles in view, namely the acts of Court including its delays ought not to prejudice and cause hardship to any party, the power to make an interim order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass final orders therein.
55. There are three possible stages, where to redress damage or injury, the Court may decide to grant a mandatory injunction in a case in which a certain injunction is violated.
(1) there can be an injunction apprehending further contempt, unless further order is not made to stop, the violation will continue or perpetrate.
(2) Final adjudication of the damage is postponed and a temporary but mandatory order is made, and
(3) Damage or injury is finally determined, and steps taken to effectuate the order.
The Supreme Court has said in R. P. Ltd. v. Proprietors, Indian Express Newspapers, Bombay Pvt. Ltd., .
"We must see whether there is a present and imminent danger for the continuance of the injunction. It is difficult to lay down a fixed standard to judge as to how clear, remote or imminent the danger is.... It is necessary to reiterate that the continuance of this injunction would amount to interference with the freedom of press in the form of preventive injunction and it must, therefore, be based on reasonable grounds for the sole purpose of keeping the administration of justice unimpaired. In the words of Mr. Justice Brandeis of the American Supreme Court concurring in Charlotte Anita Whitney v. People of the State of California, (1926) 71 Law Ed 1095 at p. 1106, there must be reasonable ground to believe that the danger apprehended is real and imminent. This test we accept on the basis of balance of convenience. This Court has not yet found or laid down any formula or test to determine how the balance of convenience in a situation of this type, or now the real and imminent danger should be judged in case of preventive publication of an article in a pending matter.....
The law of contempt must be judged in a particular situation. The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumstanced by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of Court means interference with the due administration of justice."
The narration of Korren Injunction above, the law as stated in Bhagat Singh v. Dewan Jagbir Sawhney, (AIR 1941 Cal 670) (supra) and the statement of law in Sujit Pal v. Prabir Kumar Sun, (supra) lend support to the view that any action under Order 39, Rule 2A of the Code of Civil Procedure of contempt can be postponed and the Court may issue a temporary mandatory injunction and order for restoration of status quo ante. The Supreme Court in State of Bihar v. Rani Sonabati Kumari, has held in respect of a
proceeding under Order 39, Rule 2(3) of the Code of Civil Procedure before amendment, similar to the amended provision of Order 39, Rule 2A that these provisions a punitive aspect as evident from the contemner being liable to be ordered to be detained In civil prison but they arc in substance designed to effect the enforcement of or the execution of the order. Thus to effect the enforcement of the order or to execute the order, which is found not to have been implmented, irrespective of whether action for contempt is taken or not, the Court can order for status quo ante by issuing a mandatory injunction. It is indeed ancillary to the Court's power to grant finally on the conclusion of the contempt proceeding that the Court will also have the power to make an interim mandatory injunction. A question may legitimately arise as to what consideration may prompt the Court to ignore or overlook the contempt proceeding or postpone the contempt proceeding or order for a mandatory injunction pending a final adjudication. Here one may Bear in mind that merely because the Court's special jurisdiction or inherent jurisdiction is invoked at a stage when a pelition for contempt is filed, it will be wrong to say that such jurisdiction of the Court is invoked in the contempt proceeding, it is a jurisdiction a special or inherent designed to effect the enforcement or the execution of the order. Where the injury is of so serious or material a character, that the restoring things to their former condition is the only remedy which will meet the requirements of the case or the defendant has been guilty of sharp practices or unfair conduct or has shown a desire to steal a march upon the plaintiff or to evade the jurisdiction of the Court, a jurisdiction of this kind can be exercised in a pending proceeding, a suit, a contempt proceeding, oreven an independent proceeding after the final order or decree which has been evaded or violated. To put any restriction upon the jurisdiction of the Court in this regard will render the constitutional protections under Articles 215 and 225 of the Constitution aforequoted and afore discussed ineffective and unenforceable. When then however be the consideration that will induce the Court to resort to such jurisdiction will depend upon the nature of the injury, its seriousness and the threat it created to the enforcement of the order of the Court and the public interest of the administration of justice on the one hand and the rights of the parties on the other hand. As observed in the case of Manga v. Ruslam, , the object of such an order being to safeguard the rights of a party against a threatened invasion by the other party, if in disobedience of the order of injunction, such rights are invaded during the pendency of the suit, the inherent power under Section 151 of the Code can be invoked and a mandatory injunction can be granted. The Courts have also to lake notice of the larger and higher interests of the administration of justice which is a public interest and this should receive the first priority in considering whether the Court's special or inherent power should be exercised or not. Grant of a temporary mandatory injunction will naturally thus require not only a strong Prima Facie Case To Ensure That the Court's injunction or direction should first be implemented or until it is implemented, status quo ante is maintained, it shall also bring into consideration such rules on balance of convenience which are relevant quo rights of the parties in dispute and the public interest of the administration of justice.
56-57. Adverting to the facts of this case, we knew that the main relief in the suit to declare that the notice dated 26-5-1990 issued by the first and second defendants on the basis of the requisition notices convening a Special General Meeting of the Association on 15-6-1990 is illegal, null and void cannot be said to have become infructuous merely because the Court instead of granting any injunction to hold the meeting on 15-6-1990, gave a direction to consider an agenda of no-confidence against the Executive Council and election of new President and members of the Council in a particular manner. It can still be found in the suit that the notice was illegal, null and void and as a consequence, the Court may suitably modulate the relief or permit the plaintiffs to amend the relief. Besides this the trial Court will have jurisdiction to consider the grant of a mandatory injunction even in a suit which stood disposed of if iis decree is found to have been violated or frustrated. The trial Court being a Court of Record will have special jurisdiction/inherent power to pass such orders as arc deemed necessary to meet the ends of justice since this power is saved for it under Sections 4 and 151 of the Code of Civil Procedure and Articles 215 and 225 of the Constitution. The instant suit which is still pending, shall give to the Court power to consider the desirability to grant a mandatory injunction, for the reason of its interim injunction having been violated, to remove the violation and until the suit is finally decided to preserve the property in dispute in Status Quo.
58- Our attention has been drawn to several provisions of the Memorandum of Association including Clause (c) of Article XXVII thereof which states,
"The Association may sue or be sued in the name of the Secretary General, 10A -- A law suit can only he filed at New Delhi, the headquarters of the I.O.A."
It is suggested on that basis that the second defendant being the Secretary-General of Indian Olympic Association, the suit has been one against the Association and thus addressed to every person connected with the Association. If this clause is required to be applied, it may be deemed that the Association is the second defendant, but then the suit had to be filed at New Delhi and not at Madras. Even if it is assumed that the Association has been a defendant and thus the direction issued by the Court was directed to the Association, a question will arise whether the order of the Court merely because it was addressed to the Secretary-General, who represented the Association, was an order addressed to the representatives, who had arrived to participate in the Special General Meeting or not. The General Assembly had been defined in the Rules and Regulations of the Association to mean and include the Representatives deputed by the Members in accordance with the Rules and the persons holding Indian citizenship and who are Members of the International Olympic Committee. Article III names the members as National Sports
Federations/Associations, whose sport is included in the Olympic/Asian or Common Wealth Games, National Sports Federations/ Associations, which represent widely played Indian sports recognised by the I.O. A., Olympic Associations of State, as well as Centrally Administered Union Territories, Service Sports Control Board and the Indian Citizens who are Members of the International Olympic Committee. As to who may be eligible to participate in the general meeting and special meeting of the Association and who may be eligible to vote or who qualify for being elected to the Executive Council, etc. may be gathered from the provisions which say that at the annual general meeting and special general meeting, the members shall be entitled to send their representatives and will depend mainly upon the Sports Federations and the Associations sending their representatives as they are such members under the Rules and Regulations of the Association who are entitled to send their representatives. We do not think it is necessary for us in this appeal to decide on facts in dispute as to who participated or who was eligible to participate in the special general meeting called on 15-6-1990. But as we have noticed above, it will be necessary for the Court before finding out whether Sri Shukla is guilty of civil contempt, to decide whether defendants 1 and 2 were implcaded in their individual capacity or defendant No. 2 as alleged represented the Association and thus the order/direction of the Court was addressed to the Association and if it was addressed to the Association it was also addressed to Sri Shukla. In other words, since the Association was a party, Sri Shukla was also a party at the time of the order/direction which has allegedly been violated. If it is not so found, the Court shall have then to consider whether there are any materials to show that Sri Shukla aided and abetted the violation of the order/direction of the Court. In cither case, it will be necessary to record a finding that notice of the Court had been served upon Sri Shukla or he had knowledge of the order/direction of the Court otherwise. In the event of the Court finding that the order had been addressed to Sri Shukla and he had the knowledge of the order when the violation took place, he may be found guilty of civil contempt, provided other ingredients of contempt are found to exist. Sri Shukla still may be found liable for civil contempt even though the order of the Court had not been addressed to him if there are materials to show that he had aided and abetted in the commission of the violation having notice or knowledge of the order of the Court, even otherwise he may be found guilty of contempt but as a stranger or a third party for obstructing the course of justice, a criminal contempt and not a civil contempt. In the case of a civil contempt, found to have been committed by Sri Shukla, the Court shall have full power to direct him by an order in the nature of a mandatory injunction to restitute or restore the Status Quo as it obtained on the date of the order besides such punitive actions which the Court may take against him in exerciseof its power under Order 39, Rule 21 of the Code of Civil Procedure or as a Court of Record under Art. 215 of the Constitution of India read with the relevant provisions of the Contempt of Courts Act, 1971. Incase it is found however that the order of the Court had not been addressed to Sri Shukla as a representative of one of the members of the Association, nonetheless it is found that he had the knowledge of the order/direction of the Court, and he knowingly and deliberately constructed the implementation of the order/direction of the Court, he may be found guilty of criminal contempt; the Court shall not be powerless even in such a case and may direct Sri Shukla or any other person who may be found to have stood in the way of implementation of the order/direction of the Court, to remove the obstruction and restore Status Quo Ante, besides any effective action that may be taken in the criminal contempt. The Court's power under its special jurisdiction of inherent jurisdiction to make such an order even in the case of a criminal contempt cannot be denied. It shall however be necessary in the case of a criminal contempt that the procedure prescribed under the Contempt of Courts Act, 1971 is followed and the criminal contempt will have to be dealt with by a Division Bench and not by the learned single Judge that is to say the trial Court. Learned trial Judge has found in this case that it was not possible to accept the contention that there was no intimation or information or knowledge to Sri Shukla about the order passed by the Court at the meeting. He has however not considered the question whether the order/direction of the Court had been addressed to Sri Shukla or not. whether there were/are materials to show that Sri Shukla aided and abetted in the commission of the violation of the order/direction of the Court or not and whether as a third party, Sri Shukla obstructed the due courts of justice or not. Learned trial Judge however has rightly observed that in disposing of the sub-application under Section 151 of the Code of Civil Procedure, it was not relevant or necessary to go into the question of contempt, if he has meant to say that it was not necessary to dispose of the contempt petition finally because even for a Prima Facie determination for the purpose of removing the obstruction in the implementation of the order/direction of the Court, or for enforcing the order/ direction of the Court, it will be necessary to find that Sri Shukla violated the order of the Court or that he obstructed the execution of the order of the Court. Besides such a finding as noticed by us above, it will also be necessary to consider all aspects of inconvenience that Sri Shukla suffer on the one hand and the injury that may be caused would be of so serious or material a character that the restoring things to their former condition is the only remedy which will meet the requirements of the case or that Sri Shukla had been guilty of sharp practices and unfair conduct or had shown a desire to steal a march upon the plaintiff or that he had acted to evade the jurisdiction of the Court and such other principles which govern or emerge from the rule of the balance of convenience on the other hand. Learned trial Judge has got jurisdiction for making an order in the nature of mandatory injunction but on principles that we have noticed above.
59. Mr. K. K. Venugopal has conceded that Learned trial Judge has not addressed himself to the above aspects of the case. Mr. Cooper, who has followed him, has submitted that the question aforementioned are questions of law. Both of them however have urged that this Bench as the Court of Appeal should determine these questions and decide the controversy finally. Mr. Kapil Sibbal on the other land, however, has submitted that any determination of these questions at this appellate stage will cause serious prejudice to the interests of the appellant as he may be deprived of a right of appeal under the Letters Patent against any finding on the question above by the learned trial Judge and in case it is found to be a criminal contempt of his right of being tried by a Division Bench subject to the statutory appeal before the Supreme Court.
60. We have given cur anxious consideration to the matter. We are of the opinion that it will be fair and equitable to remit back the case to the trial Court to consider the case in the light of the observations with respect to the law on the subject by us above. But we are not able to close our eyes to the serious injury that the sports in the country is likely to suffer on account of the remand and delay in determination of the matter in full even for the purpose of granting an immediate relief by an order of mandatory injunction. Since we have found that the Court can grant temporary mandatory injunction pending a contempt petition or independent of it, we have no hesitation or doubt in holding that the Court, pending a decision on the desirability of issuing a temporary mandatory injunction and restoration of status quo ante to ensure the enforcement of or the execution of the order/direction which has been allegedly violated, can make an ad interim order as well either in the nature of mandatory injunction and restoration of status quo ante or by an order to ensure that until issue of the grant of mandatory injunction and restoration of status quo ante is decided, no injury is caused to the public interest of sports. The Supreme Court has also shown its concern to the state of affairs of the Indian Olympic Association causing serious injury/damage to the interest of Sports. While it may be said that if it is found that no confidence resolution has not been adopted, the plaintiffs have a right for continuance of the status quo as it obtained before 15-6-1990 and if it is found that Sri Shukla has acquired an independent right to the office of the President of the Indian Olympic Association unaffected by the order/direction of the Court, then Sri Shukla has got a right to be the President of the Indian Olympic Association, these two conflicting interests have to be balanced with reference to the facts that may be found one way or the other. In our opinion, there shall be no injury of any kind to any of the parties to the proceeding including the plaintiffs or to Sri Shukla if all of them arc asked to keep away from the Indian Olympic Assocciation until the issue as to the grant of mandatory injunction is decided. We are more inclined in favour of such an order for the reason that only the President and the Secretary-General of the Association before 15-6-1990 are present as part defcndcnts in the suit. The Executive Council of the Association has got as its members besides the President and the Secretary-General, 9 Vice-Presidents, 6 Joint-Secretaries, a Treasure. 7 members elected from among the Representatives of the State Olympic Associations and 12 members elected from amopng the Representatives of National Special Federations/Associations/ S.S.C.B. who are not before this Court. It is not known whether they desire to be restored as members of the Executive Council and are willing and ready to function in the said capacity. It is one of the settled rules that even a temporary mandatory injunction should not be granted in favour of a person, who is not willing to get such an order. It will be inappropriate therefore to restrain Sri Shukla until the entire matter is finally decided as observed by us earlier. But at the same time, it shall be wholly inappropriate to allow Sri Shukla to function as the President or those nominated by him to constitute the Executive Council in view of the seriousness of the allegations made on behalf of the plaintiffs because it is clearly the case of Sri Shukla that he was elected as the President of the Association as a result of the no-confindence resolution, which if at all adopted, was not adopted in accordance with the directions of this Court.
61. For this reason and the reason of the interest of the sports as well as the interest of administration of justice, two public interests, we are inclined to order that until the final adjudication of the issue whether any mandatory injunction be issued for restoration of status quo ante or not, the administration of the Association is put in the hands of a person of eminence, independence and who takes interest in sports.
62. In the result, the appeal is allowed. The order of the learned trial Judge dated 11-7-1990 made in Sub-Application No. 230 of 1990 is set aside. The case is remitted back for a fresh hearing and disposal in accordance with law and in the light of the observations made above. Pending disposal of the said application, it is hereby ordered that Shri S. Natarajan. a retired Judge of the Supreme Court shall he the one Member Executive Council, who shall exercise all the powers vested in the Office-bearers including the President as well as the Executive Council in consultation with a Committee nominated by him of men representing National Sports Federations/ Associations, Stale Olympic Associations and the International Olymic Committee members in India not exceeding seven and receive a fixed honorarium of Rs. 15,000/- p.m. and expenses and allowances admissible to the President of the Indian Olympic Association from the funds of the Association. Parties are directed to comply with the order forthwith. Since the matter is of importance and far-reaching consequences, we direct that the sub-application be disposed of as quickly as possible preferably within a period of two months.
63. Order accordingly.