Full Judgment Text
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PETITIONER:
JAGANNATH SINGH AND OTHERS
Vs.
RESPONDENT:
DR. RAM NARESH SINGH
DATE OF JUDGMENT:
10/03/1970
BENCH:
ACT:
Practice and Procedure-Case not properly described in cause
list--Non-appearance of counsel and party-When excusable.
HEADNOTE:
A motion for contempt against the appellants was made and it
was shown on the daily cause list on Monday, 1st of May 1967
before a Judge of the High Court. On that day the case did
not reach and it was shown on the next day. The name of the
counsel of the appellants was not correctly mentioned in the
cause list of 1st of May, but the next day the entry was
correctly made. When the case was called, the appellants
were absent as also their counsel. The order was passed
exparte imposing fines on the appellants - The clerk of the
counsel filed an affidavit stating that he missed the case
on the first day as his counsel’s name was not correctly
recorded, and as-contempt matters are usually shown on
Monday, he overlooked it the following day also. It was
also stated that his counsel was informed by another counsel
that ’his case had been called out and when his counsel went
to enquire, he found that the judgment had already been
delivered. An application was thereafter made for rehearing
the case after vacating the order. The Judge did not accept
the explanation. In appeal, this Court,
HELD :-The High Court contributed to the failure of the
party to appear before it on the first day and in these
circumstances, the High Court should have seen its way to
hear the counsel when he put an application for re-hearing.
The omission to mention the case correctly in the cause list
was a mistake of the Court itself and some indulgence was,
therefore, to be shown to the party who had been misled by
this erroneous entry. It is no doubt true that on the next
day, the entry was correctly made. When the counsel knew
that his case was not in the Cause List the previous day he
ought to have looked into the Cause List for the next day’s
work. There was some negligence on the part of the counsel
or his clerk but it was not so grave as to disentitle the
party to be heard, and in any event, the alleged contemnors
could not be punished for a mistake on the part of their
counsel or the counsel’s clerk.
Further, this was a case in which the counsel must have an
opportunity of explaining his conduct and the conduct of his
clients in reference to the order of stay for whose
disobedience the charge of contempt was made. [972 B-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 59
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and 60 of 1968.
Appeals by special leave from the judgments and orders dated
May 2, 1967 and May 18, 1967 of the Allahabad High Court in
Criminal Misc. Contempt Case No. 53 of 1966.
M. V. Goswami, for the appellant (in both the appeals) S. S.
Khanduja and Kailash Chander for the respondents (in both
the appeals).
O. P. Rana, for the interveners.
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The Judgment of the Court was delivered by
Hidayatullah, C.J. These two appeals arise out of two sepa-
rate proceedings in the High Court of Allahabad. Criminal
Appeal No. 60 of 1968 arises out of an order by which the
appellants held guilty of contempt and fined, asked the
Court to vacate the order and to rehear the case. Criminal
Appeal No. 59 of 1968 concerns the main order passed in the
case holding the appellants guilty of contempt and imposing
fines on them. We have not considered the merits of Civil
Appeal No. 59 of 1968 because in our opinion, Civil Appeal
No. 60 of 1968 should be allowed with the consequential
order that the conviction for contempt of Court should be
set aside and the case remanded to the, High Court for re-
hearing.
It is not necessary to go into the facts of the case because
we are only concerned with the absence of counsel and
parties when the motion for contempt was heard in the High
Court. The case was shown in the daily Cause List of
Monday, the 1st May, 1967 before Mr. Justice Gyanendra Kumar
in Court Room No. 2. On that day, there were two cases fixed
at the top for dictation of judgment and for orders.
Thereafter, this case was shown at the 12th place. The
entry read correctly in so far as the names of the parties
were concerned and the number of the case but by some
mischance, the name of the counsel was shown as Mr. C.B.
Gupta in place of Mr. C.B. Misra. It appears that the case
was not reached that day. It was shown the next day in the
same Court its position was then No. 3. One case which hard
the 15th place on 1st May, 1967 was shown ahead of this
case. This time, the name of the counsel was correctly
mentioned.
When the case was called in the Court of Mr. Justice Gyanen-
dra Kumar, the appellants were absent as also their counsel.
The order was passed ex-parte imposing fines upon the
contemnors who are the appellants here. According to the
affidavit filed by the clerk of Mr. C. B. Misra, he missed
the case on the first day because the name of his counsel
was not correctly recorded. He also stated that as contempt
matters were usually shown on Monday, he overlooked the case
on the following day also and hence Mr. C. B. Misra could
not be present in Court. It is also stated in the affidavit
that another counsel informed Mr. C. B. Misra that his case
had been called in Court No. 2. Mr. Misra went to enquire
because he did not know that he had a case there. He found
that this case was in fact shown in the Cause List but that
it was already heard and decided and the judgment was also
delivered. The application was thereafter made for re-hear-
ing the case after vacating the order, pointing out the
facts which we have narrated above. The learned Judge did
not accept the affidavit of Mr. Misra’s clerk. He observed
that, it was not a
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case of optical illusion or that two pages had been turned
by mistake. The case was shown on the 1st May and also on
the second May he was not, therefore, prepared to accept the
explanation.
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Although, we are reluctant to interfere in matters of
discipline, when the High Court punishes for contempt for
disobedience of its orders, we think in this case, the
learned judge might well have heard Mr. Misra. There is no
doubt that on the 1st of May there was an error in the Cause
List and it is a maxim that ,an act of Court should not harm
any person. The omission to mention the case correctly in
the Cause List was a mistake of the Court itself and some
indulgence was, therefore, to be shown to the party who had
been mislead by this erroneous entry. It is no doubt true
that on the next day, the entry was correctly made. When
the counsel knew that his case was not in the Cause List the
previous day he ought to have looked into the Cause List for
the next day to find whether it was included in the next
day’s work. There is some negligence on the part of the
counsel or his clerk but it is not so grave as to dis-
entitle the party to be heard, and in any event, the alleged
contemnors cannot be punished for a mistake on the part of
their counsel or the counsel’s clerk. In a contempt matter,
the Court acts as accuser as well as the Judge. Although,
strictly speaking, the contemnor is not allowed to defend
himself where the contempt is Patent, however, here, there
was some question as to whether the stay granted remained
intact after the order of August 30, 1965 or had been varied
by that order. There was also some doubt as to whether the
constructions had been made in such a way as to amount to
disobedience of the injunction which had been made by the
Court on January 11, 1965. All these matters might have
been properly explained if the party had appeared. In our
judgment, the High Court contributed to the failure of the
party to appear before it on the first day and in these
circumstances, the High Court should have seen its way to
hear the counsel when he put an application for re-hearing.
We say nothing about the merits of the case. If contempt
has been committed, no doubt, it will be dealt with properly
by the High Court. But in this case, we are satisfied that
the counsel must have an opportunity of explaining his con-
duct and the conduct of his clients in reference to the
order of stay. We accordingly set aside both the orders and
remit the case to the High Court for considering whether
contempt has been committed or not and to deal with the
matter in accordance with law. Since the appellants were
guilty of some negligence, we think, we should make an order
that they should bear the costs of Cave remanded. these
appeals qualified at Rs. 300.
Y.P. Case remanded
LIGSupCI/70-15-5-71-GIPF.