# HOSHIAR SINGH v. GURBACHAN SINGH

- **Citation:** [1962] Supp. 3 S.C.R. 127
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** S. K. Das, K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hoshiar-singh-v-gurbachan-singh-2363
- **Pages:** 31

## Headnote

127
Contempt of Court-Issue of prohibitory order-Knowledge
aliunde-Disobedience-Absence of official communication, if a
proper defence-Senttnce.
The appellants,· one a Sub-Divisional Officer and the
other a
Naib Tehsildar, were
entrusted with the duty
of allotting land to displaced persons. The first respondent
forcibly occupied the land allotted to B. On May 9, 1958,
the first
appellant ordered that B
and other allottees
similarly situated would be given possession of lands allotted
to them on May 20, 1958. On May 16, 1958, the first
respondent and
others threatened with dispossession filed
petitions in the High Court under Art. 226 of the constitution and obtained interim
~tay of delivery of possession till
May 19, 1958, when the petitions would come· up before
the Division Benc;h for admission. On May 19, 1958, the
Division Bench extended the operation of the stay
order
until May 23, 1958. The notice of the first stay order reached
the appellants on May 19, 1958, but no notice of the second
order was officially communicated to them till May 21, 1958.
It was alleged that on May 20, 1958, the appellants, although
informed of the second stay order by certain interested
persons and the Advocate for orie of the parties, form:illy
dispossessed_ the respondent in disob~dience of the Court's
order and handed over possession of the land to B.
On the
complaint of the respondent the High C0urt held that the
appellants were guilty of contempt of court and·,· instead of
committing them for contempt, administrated a warning as
the appellants honestly believed that they were not bound to
stay delivery of possession in absence of an official communi~
cation. The appellants appealed by special leave.
Held, (per Das and Subba Rao, .JJ.)that in a case.pf con·
tempt for disobedience of a prohibitive order, as distinguished
from an order of affirmative nature, it was not necessary to
show that notice of the prohibitory order was served upon
the party against whom it was granted. It would be sufficient
if it was proved that the party had notice of it aliunde.
N. Baksi v. C. K. Ghosh, A. T. R. (1957) Patn. 528,
referred to.
1962
Februa'} 8.
1962
H()shiar Singh
v.
Gurbacha1, Si11:h
128 SUPREME COURT REPORTS [1962) SUPP.
There may Le circumstances where officials entrusted
\\'ith the carryinR" out of a Jcgal order mighr have valid reasons
~o dru ht 1 lic aut.hf'nticity of. the order con\'cycd to them hy
1nl<>rested
part1e~.
But
1n the present cast' there could
hardly he any such rt·ason!'.. The appellants had really no
justification for doubting the
authenticitv of an
ordr.r
cornmunica ted to them hy- an A<lvocatc.
'
.
H"Ti/, furthr-r. t}1at in a m;i;tter reJating to contempt of
co11rt, thrre cannot he hoth j11stification and apology.
M. Y. S/.ni.,f v. 'J'he Tfon'lil, .TurlgPS of the Tligh Court of
l\'ngr.ur. [lg'"l I~- C'. R. 757, referred to.
A lthm1~h thr appellants mi~ht hav• hnn.,.tly believed
tl-<lt 1hr\0 \\·rrl" not l-ounrl to hoJ<l thf'ir hand in absence of an
offcial rrimm11nirati0n. that wo111(1 be no defence to the
rl1tlr_!"'r nf r0nt<'mpt of ~011rt, hut only a relevant consideration
in a\\·arding- the 5Pntenrr.
p,,,r
Da\'al. J.-Contr.mpt proct-erlin.vs are c:riminal
or Olltlsi
<'riminal in naturt" and it i" essential that he.fore
any artinn ran he tal.:fn thr accusation must ht- specified in
rhar::ictcr. Tn thf inc:tant rasc, the rc,.pondent rlirl not state
that he ,.•,:as fnrmally Oispossfsc:rd. Thi'.". would he for some
reason if actu<ll pnc:-.~ssion had hf'<'n delivered. He could not
l--t- saicl to ht\\'{' c:omr to rourt with cl"an hands. Further, the
fiPrlinl! nf tl~e Jlie'h C011rt that the appellants
delivered
no<::session l·onrstl,· hrlic\'in(! that tht-y \\'ere not hound not to
do -.o in the ahc:rnc:r oi 11,~ nffir-ial r-omm11nic:ation meant that
there: ,.,•as no rlrfiancr of thr l-fit"h f'.nurt's order. There conlrl
he no \\'ilful
cHsohedienc~ sinc:t:> th,.re \vac; no helicf in the
cxic;ff'nc:e of the ordrr.
It mav nnt he ncc:e

## Text

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-
3 S.C.R.
SUPREME COURT REPORTS
HOSHIAR SINGH
v.
GURBACHAN SINGH
(S. K. DAS, K. SUBBA RAO and RAGHUBAR
DAYAL, JJ.)
127
Contempt of Court-Issue of prohibitory order-Knowledge
aliunde-Disobedience-Absence of official communication, if a
proper defence-Senttnce.
The appellants,· one a Sub-Divisional Officer and the
other a
Naib Tehsildar, were
entrusted with the duty
of allotting land to displaced persons. The first respondent
forcibly occupied the land allotted to B. On May 9, 1958,
the first
appellant ordered that B
and other allottees
similarly situated would be given possession of lands allotted
to them on May 20, 1958. On May 16, 1958, the first
respondent and
others threatened with dispossession filed
petitions in the High Court under Art. 226 of the constitution and obtained interim
~tay of delivery of possession till
May 19, 1958, when the petitions would come· up before
the Division Benc;h for admission. On May 19, 1958, the
Division Bench extended the operation of the stay
order
until May 23, 1958. The notice of the first stay order reached
the appellants on May 19, 1958, but no notice of the second
order was officially communicated to them till May 21, 1958.
It was alleged that on May 20, 1958, the appellants, although
informed of the second stay order by certain interested
persons and the Advocate for orie of the parties, form:illy
dispossessed_ the respondent in disob~dience of the Court's
order and handed over possession of the land to B.
On the
complaint of the respondent the High C0urt held that the
appellants were guilty of contempt of court and·,· instead of
committing them for contempt, administrated a warning as
the appellants honestly believed that they were not bound to
stay delivery of possession in absence of an official communi~
cation. The appellants appealed by special leave.
Held, (per Das and Subba Rao, .JJ.)that in a case.pf con·
tempt for disobedience of a prohibitive order, as distinguished
from an order of affirmative nature, it was not necessary to
show that notice of the prohibitory order was served upon
the party against whom it was granted. It would be sufficient
if it was proved that the party had notice of it aliunde.
N. Baksi v. C. K. Ghosh, A. T. R. (1957) Patn. 528,
referred to.
1962
Februa'} 8.
1962
H()shiar Singh
v.
Gurbacha1, Si11:h
128 SUPREME COURT REPORTS [1962) SUPP.
There may Le circumstances where officials entrusted
\\'ith the carryinR" out of a Jcgal order mighr have valid reasons
~o dru ht 1 lic aut.hf'nticity of. the order con\'cycd to them hy
1nl<>rested
part1e~.
But
1n the present cast' there could
hardly he any such rt·ason!'.. The appellants had really no
justification for doubting the
authenticitv of an
ordr.r
cornmunica ted to them hy- an A<lvocatc.
'
.
H"Ti/, furthr-r. t}1at in a m;i;tter reJating to contempt of
co11rt, thrre cannot he hoth j11stification and apology.
M. Y. S/.ni.,f v. 'J'he Tfon'lil, .TurlgPS of the Tligh Court of
l\'ngr.ur. [lg'"l I~- C'. R. 757, referred to.
A lthm1~h thr appellants mi~ht hav• hnn.,.tly believed
tl-<lt 1hr\0 \\·rrl" not l-ounrl to hoJ<l thf'ir hand in absence of an
offcial rrimm11nirati0n. that wo111(1 be no defence to the
rl1tlr_!"'r nf r0nt<'mpt of ~011rt, hut only a relevant consideration
in a\\·arding- the 5Pntenrr.
p,,,r
Da\'al. J.-Contr.mpt proct-erlin.vs are c:riminal
or Olltlsi
<'riminal in naturt" and it i" essential that he.fore
any artinn ran he tal.:fn thr accusation must ht- specified in
rhar::ictcr. Tn thf inc:tant rasc, the rc,.pondent rlirl not state
that he ,.•,:as fnrmally Oispossfsc:rd. Thi'.". would he for some
reason if actu<ll pnc:-.~ssion had hf'<'n delivered. He could not
l--t- saicl to ht\\'{' c:omr to rourt with cl"an hands. Further, the
fiPrlinl! nf tl~e Jlie'h C011rt that the appellants
delivered
no<::session l·onrstl,· hrlic\'in(! that tht-y \\'ere not hound not to
do -.o in the ahc:rnc:r oi 11,~ nffir-ial r-omm11nic:ation meant that
there: ,.,•as no rlrfiancr of thr l-fit"h f'.nurt's order. There conlrl
he no \\'ilful
cHsohedienc~ sinc:t:> th,.re \vac; no helicf in the
cxic;ff'nc:e of the ordrr.
It mav nnt he ncc:es<:.arv that the party against l\·hom a
p'"ohihitorv order ,.,·a<:. m:v1f" must he sr.r\'c<l "·ith the order, but
it sl·oulO Pa''(' noticr nf the nrdt"r tr.for,. it could be cxpt'Ctf"rl
to nl·t"Y .. Such noticr mn~t h,- from sourct-o; connected v.:ith
the court
p;i~<;inrr thr ordr:r. The allege.cl knn\vJeclge of thr:
party cannot he ,,..,anf' lo (1rprncl on the ,·eracily of the
v•itnessr:s rx:imin~rt hv tht" party praying fnr ac.tion.
In re Bruant L.R. ( l 8i6) 4 Ch.D. 98. In Ex Parle
La.11glcy, E.;:parlf' Smith. In re !Ji~lwp LR. ( 1879)
13 Ch. D. 110 and The Seraylio. L. R. (1885) IO
P. D. 120, discuss<'<L
C1tD!l:S-Ar. APPELLATE Jr:HJSDICTJON: Criminal
Appeal Xo. 18i of 19:39.
•
•
3 S.C.R.
SUPREME COURT REPORTS
129
Appeal by special leave from the judgment
and order dated August 18, 1958, . of the Punjab
High Court in Criminal Original No. 20 of 1958.
Gopal Singh and P. D. Men(ff!,
for the
appellants. R. S. Gheba, for respondent No. 1.
1962. February 8. The Judgment of Das and
Subba Rao, JJ., was delivered by Das, J., Dayal, J.
delivered a sepa.rate judgment.
S. K DAS, J.-'This is an appeal by special
leave from the judgment and order of the Punjab
High Court dated August 18, 1958 by which the said
Court found the two appellants guilty of contempt of
court and instead of committing them for such contempt, administered a warning to them and directed
them to pay Rs. 50/- each as costs of the respondent.
Gurbachan Singh.
The two appellants before us bear the same
name. One of them was the Sub Divisional Officer,
Sirsa, District Hisear and the\other Naib Tehsildarcum:Managing Officer, Sirs<i, same district at the
relevant time. In this judgment we shall call the
Sub Divisional Officer as the first appellant and the
Naib Tehsildar as the second appellant. The facts
alleged against the appellants were these.. One
Budh Singh, a displaced person, was allotted some
land in village Jagmalera, Tehsil Sirsa, District
Hissar. The land allotted• to Budh Singh was, it
was stated by the appellants, forcibly occupied by
the respondent Gurbachan Singh. The respondent
:was not a legitimate allottee and the appellants,
who were concerned in their official capaoity with
the allotment and management of land for displaced
persons, were naturally anxious to oust the respondent and deliver possession to Budh Singh of the
land allott.ed to him. On May 9, 1958 appellant
No. l made an order that Budh Singh and other
allottees like him would be given possession of the
land, allotted to them. The date fixed for such
196!
Hoshiar Singh
v.
Gurbachan Singh
1961
Hoa/iiar Singh
"·
Gurbac.~an Singh
Das J
130 SUPREME COURT REPORT5 [1962) SUPP.
delivery of possession was l\fay 20, I !J58.
On l\fay
16, 1958 Gurhaehan Singh and a. number of other
persons who were similarlv threatened with <lisposHeesion filPd petitions to· the High Court under
Art. 226 of the Constitution challenging the l<'gality
of the aDtion
threatened against them.
These
petitions were put up befor0 the learned Chief
Justice on that very day, namely, !\fay Hi, l 9i:S,
when he issued an order staying delivery ofpclHsession
till May l!l, I 9;)8, when the petitions were to come
up for admission before a Division Bench, On
May 19, 1958, the Division Rench extended the
operation of the stay order until May 2:{, 1958.
In
tho- High Court the appellants did not dispute that
the first order staying dclivNy of possession up to
llfay l!J, I !JfiS was communicated to them on May
l!J, 1958 on which date the notice from the High
Court reached Sirsa._
It appears that a notice of
the second order extending the st11y of delivery
possc~sion till llfay 23,
1958, was not officially
communicated to the appellants till llfay 21, l!l:'iS.
The allegation on bohalf of the respondent was
that on May 20, I!Jii8, which was the rdevant date,
the two a·ppellants wi>re informed by certain interested personR, t-o whom we shall prt•scnt.]y rofor,
that a.n exten~ion of the stay ordn up to :\lay 2:J,
I!J;i8, had been granted by the Higli Court.
In
spite of thiR information,
however, the second
appellant, in consultation with am] undN instruction, of the first. nppcllant, formally dispossess<'d
the respondentand handed ovn possession of
the land t.o Rudh Singh.
In these circumstances the allegation on lwhalf
of tb" respondent wa• that the two appellants hnd
committed cont<>mpt of court hv di"ob<'ying the orckr
of tho High Court stnying deli~cry of possession ~ i II
Ma:v 23, 19:'58. The respondent made an applica~1on
to the High Cnurt for taking Rnitahle action ag,rn1st
the two appellants. Thi" application was mad" on
llfay 27, 1958.
On this application the High Court
•
'
3S.C.R.
SUPREME COURT REPORTS
131
issued notice and after hearing the parties, Falshaw,
J. (as he then was) who dealt with the application
came to the conclusion that the two appellants
were aware of the order of the High Court extend-
. ing the operation of the stay order and yet they
disobeyed the said order by dispossessing the respondent and handing over
possession to Budh
Singh. He held them guilty of contempt of court,
but at the same time expressed the opinion that the
appellants honestly believed that they were not
bound to hold their hands in the absence of an
official communication of the High Court's order
extending the operation of the stay order. In this
view of the matter, the learned .Judge instead of
committing the two appellants for contempt of
court merely administered a warning to them and
directed them to pay the costs of the respondent.
On behalf of the appellants several points
have been urged in support of their contention that
they were not guilty of contempt of court. Firstly,
it has be1m contended that on the materials on the
record, the High Court was wrong in proceeding on
the footing that the two appellants were informed
by the interested parties that an extension of the
stay order up to May 23, 1958, had been granted
in the case of the respondent. It has been argued
before us th'1t on May 20, 1958, the appellants
did not know that the stav
order had been
extended till May 23, 1958, iri ·the writ petition filed
on behalf of the respondent Gurbachan Singh,
though in another case of Didar Sin1th relating
to allotted
land in the same village,
the
appellants were informed by an ad vacate that the
stay order had been extended till May 23, 1958.
It has been contended before us that in the a,bsence
of positive evidence fixing the two appellants with
knowledge of the extension of the stay order in the
particular case of the respondent, the High Court
was wrong in finding that the two appellants had
wilfully disobeyed the order of the High Court.
1962
Horhiar S in:h
••
Gubrachan Sing~
DasJ.
196t
Hoshiar Singh
v.
Gurbochan Singh
IJa1.J.
132 SUPREME COURT REPORTS [l!J62] SUPP.
In order to appreciate this argument urged on
behalf of the appellants it is necefisary to state
some more facts. In para. 17 of the applir.'1tion which
the respondent made to the High Court for taking
neceliSary action against the appellants for alleged
contempt of court, it was stated that at f).30 a.m.
on May 20, 19:;,;, two persons named Bir Singh and
A vtar Singh
WPnt
personally to the house of
appellant No. 2 and told him that the stay order
had been extcn<le<l by the High Court and that they
had b<lcn informed by the advocate on telephone.
This allegation was supported by an affidavit made
on behalf of the respondent.
Appella.nt l'\o. 2,
however, denied this allegation in hiR counteraffidavit..
In paraH. 18, 19 an<l 20 of his petition
the respondent Htakd that at about 7-40 a.m. on
Ma.v ~O. I O.i8 a written application was filed bcforo
appellant No. :! in which it was stated that the High
Court harl. stayed delivny of possession till }fay
2:l, l!J58; this application was drafted by an advocate named Ganga Bishan, who acted on behalf of
Didar Singh.
The applieation was presented to
appellant !\o. 2 in preserrno of two other pcraons
named ~Ia.stan Singh and Teja Singh. Thereafter,
an aflida.vit wa.R also made on behalf of Didar
Sinl?h.
This affidavit was presented to appellant
Xo. 2 at about 8-1 ii a.m. Thereafter,
appellant
No. 2 went in a. 'joep' to appellant No. l in order
to consult
the latter. Appelhtnt No.
2 Raw
appellant
~o. I
in the
latter's court
room.
Ho e1tme out within a. few
minutes, and told
Gangit
BiRhan
that the
affidavit Rhould
he
presenled to appellant No. I. Thereupon, another
·application was
written
011
behalf of Didar
~ingh and this was presented to appellant No. l
supported by the affidavit already made on behalf
of Didar Singh.
Appellant ~o. I did not, howt·ver, pass n~ccssary orders on tho application till
about 10 a.m., when he mado an endorsement to
the effect that the Tchsil<lar, Sirsa, should take
3 S.C.R. SUPREME COURT REPORTS
133
necessary action. When the application was taken
to the Tehsildar, he noted on it that the Naib
Tehsildar, namely, appellant No. 2 had already left
for the village to deliver possession. Thereupon
Avtar Singh, Bir Singh, Didar Singh and Mastan
Singh went to village Jagmalera where the lands
lay and again met appellant No. 2.
The application made to appellant No. 1 with his orders thereon was shown to appellant No. 2. It was alleged
that appellant No. 2 was also shown the wording
of the stay order as received by the party through
a special messenger.
Appellant No. 2, however,
replied that he had been ordered to dispossess the
respondent and insisted on his proceeding with the
dispossession.
In his counter-affidavit appellant No. 2 admit-
. ted .that on May 20, 1958 an application was presented to him by Didar Singh at about 7-40 a.m.
He further admitted that an affidavit in support
of the application was also presented to him.
Appellant No. 2 then made the following significant statements.
"On receipt of these documents I told
Shri Didar Singh that I could not act on the
application and suspend the proceedings for
dispossession unless I was shown the order of
stay alleged to have been made by the High
Court."
Appellant No. 2 explained his conduct by referring
to the background of quarrel and enmity between
the parties which had led to several criminal cases
between them. Appellant No. 2 said in his counteraffidavit that with this background of enmity he
felt that though Didar Singh was an intereste Ii
party, it would not be safe to accept the statements
of facts contained in the application or affidavit
made on behalf of Didar Singh at their face value.
Appellant No. 2 also admitted that he consulted
appellant No. 1, who also advised that it would not
1962
Hoshiar Singh.
.
v.
Gwbachan Singh
Das J.
1962
lloshiar Singh
V,
·, urbach·;11 Sinth
DasJ.
134 SUPREME COUltT REPORTS [1962) SUPP.
be safe to aet on the statements made in the application or affidnvit.
Appellant ~o. 2 also admitted
that Ganga Bishan Advocate, presented the applications to him. He al8o admitted that the appli·
cation which was filed by Ganga Bishan to appellant Xo. I was received back with the orders of
appellant No. I thereon at a.bout 6 p.m. on :\Ia.y 20,
l\158, while appellant No. 2 was returning from the
village.
Appellant No. ~denied that he was shown
the wording of the stay order of the High Court. He
admitted, however, that he was asked uot to proceed with delivery of possession on account of the
High Court. Appellant No. I. also made similar
statements in his counter-affidavit. He admitted
that
at
about
9 a. m.
on llfav
20,
1958
an
a.pplillation
oupported
by
iiffidavit
wus
ma.do to him on behalf of Didar Singh imd he then
endorsed the application to the Tehsilda.r for
necessary action.
Unfortunately, the applications which were
made to appell!Lnts I and 2 have not been filed and
we do not know tho precise eontents of the two
applications.
We have, howt:>ver, afTidavits made
on behalf of Dida.r Singh. Teja Singh, Ganga Bishan
and Avta.r Singh.
The learned Advocate for the
parties have taken.us through those affidavits. The
a.Jgument presented on behalf of the appellants is
that though thoy knew of thc extension of the stay
order in Didar Singh's case by reason
of the
application and affidavit filed on his behalf before
thom, they did not know that a similar extensiou of
the stay order had been granted by the High
Court in the other ca;ies as well.
This argument
has been pressed before us with some vehemence
and we proceed now to consider it. It is worthy
of note that such an argument which goes to the
very root of tho matter was not presented to the
High Court. It is not disputed that "disobedience
of a. judgmcn t or order requiring a porson to do
a.ny a.ct other than tho payment of money, or to
3 S.C.R. SUPREME COUH,'f REPORTS
135
abstain from doing anything i~ a cont.empt of court
punishable by attachment or committ,al" ; but
disobedience, it is argued, if it is to be punishable
as a contempt, must be wilful ; in other words, the
party against whom a proceeding by way of contempt is taken must know t:ii.e order before it can
be said that he has disobeyed it. It is somewhat
surprising that if the stand of the appellants
was
that
they
did
not
know
of
the
order made by the High Court on May 19,
1958, in the respondent's case, such a point was
not urged in the High Court. Falshaw, J., (as he
then was) said in his judgement that it was not in
dispute before him that 011 the morning of May 20,
1958, both the appellants were informed that an
extension of the stay order upto May, 23, 1958,
had been granted by the High Court.
This statement of the learned Judge must have reference to
tho case of the respondent which he was considering.
Apart, however, from the point that such an argument on behalf of the two appellants was not presented in the High Court, it appears to us that on
the affidavits made available to the Court, the only
reasonable infer~nce is that though the application
and the affidavit were made on behalf of Didar
Singh, both the appellants were informed that the
High Court had granted an extension of the stay
order in all the cases. It is admitted on both 8ides
that there were three cases in which deli very of
possession had to be given of lands in village Jagmalera. It is also not seriously in dispute that on
May 9, 1958, appellant No. 1 made an order directing that delivery of possession should be given to
the allottees of their respective areas and persons
in unauthorised occupation would be dispossessed.
On May 16, 1958 three writ petitions were made
which were placed before the Chief Justice who
made an interim order of stay lasting for three days.
On May 19, 1958 the writ petitions were placed before a Division Bench for admission and that Bench
t962
Hoshiar Singh
v.
Gurbachan Singh
Dat J,
1961
HoJhiar Singh
••
Ourbachan Singh
j),,, J.
136 SUPREME COURT REPOI~TS (1962J SUPP.
extended the stay order till May !!3, 1958.
These
are the admitted facts. It is also admitted that
the respondent Gurbachan Singh did not appear
before the appellants on May 20, 19ii8, a fact which
has been emphasised by the learned Advocate for
the appellants. Let us, however, seo what the
affidavits filed in the case show. Teja Singh said
in his affiJavit that Harbans Singh Gujral, who
was the advocate acting on behalf of the petitioners
in all the cases, told him on the telephone on
May 19, 1958 that the High Court had extended
the stay order in all the cases upto May 23, 1958.
Teja
~ingh iiccompa.nied Didar Singh,
Ganga
Biahan, Mastan Singh and others to the village on
.illay 20, HJ68, and he said that au application was
mado to appelle.nt No. 2 in which it was stated that
the stay order had been extonded by the High Court.
The affidavit of Ganga llishan is very eignificant in
this connection. He said that on May ~O, 1958,
ho drafted the application which was later ma.de
to appellant No. 2.
Ganga Bishan said that it was
stated to appellant No. 2 th:it the stay ordor made
by the High Court related to all tho cases of village
Ja.gmalera. He further said that appellant ~o. 2
was informed that stay of delivery of possession
had been extended by the High Court upto May 23,
1958 ; appellant No. 2,
ho,vever, wanted to be
shown the order of the lI igh Court ; thereupon an
affidavit of Didar Singh to the effect that tho stay
order had been extended by the High Court upto
:May 23, 1958, was filed.
Ganga Bishan also said
that appellant No. I was also informed that the
High Court had i.xtended the stay order upto May
23, 1958. The affidavits made on behalf of Didar
Singh and A vtar Singh were also to the same effect.
·In view of theso affidavits we find • it very
difficult to hold that the appellants knew of the
stay order only in
Didar Singh's
case
but
did not know of the stay order in the other
cases.
It
is
worthy
of
note
here
that
-
•
3 S.C.R.
SUPREME COURT REPORTS
137
in the counter-affidavits filed on behalf of the appellants the Doint that was made on their behalf was
that they. considered it unsafe to rely on the applications and affidavits made, in view ot the background
of enmity between the parties. The two appellants
did not say in their counter-affidavits that they came
to know of the stay order only in one case and not
in the others . .:Such a point does not appear to have
been specifiqally made on behalf of the appellants
at any stage of the proceedings in the High Court.
Therefore, we have come to the conclusion that the
appellants knew of the order of the High Court
in all the cases and it is not correct to say that the
appellants knew of the order of the High Court
only in one case and not in the others. We find it
difficult to believe that Ganga Bishan would not
tell the appellants that the High Court had extended the stay order in all the three cases of the village
Ganga Bishan says in his affidavit that he did tell
the appellants of the extension of the stay
order in all the three cases and there was no counter-affidavits on behalf of the appellants traversing the statements made by Ganga Bishan. We
must, therefore, overrule the first point urged on
behalf of the appellants.
The second point which has been urged on
behalf of the appellants is that in the absence of
an official communication of the order, they were
justified in not acting on what they came to
know from interested parties and their advocate.
The learned Advocate for the appellants has
submitted that in a case of this nature, before
wilful disobedience of the order of the High Court
could . be imputed
against the
appellants, it
was legally
essential that the order should be
officially communicated or served on the appellants and in the absence of such communioation
or service, the proceeding for contempt must fail.
We are unable to accept this contention as correct.
1962
lioshiar Sinqh
••
Gurbacf1an Singh
Das J.
1962
H oshiar Sfr1vh
v.
Owbachan Singh
Das J,
138 SUPREl\IE COURT HEPORTS [1962] SUPP.
Tho legal position ha.~ been very succinctly put
by Oswald:
.
"The judgment or order should be served
on the party personally, except in the following cases:
(I) prohibitive orders, the drawing
up of which ii! not completed; (2) orders embodying an undertaking to do an act by a
named day; (3) orders to answer interrogatories or for discovery or inspection of
documents: (4) where an order for substituted
service has been ma.de; (ii) where the res·
pondent has evaded service of the order ......
In order to justify committal for breach
of a
prohibitive order it is not. necessary
that the order should havo been served upon
the party against whom it has been granted,
if it bo proved that he had notice of the
order aliunde, as hy telegram, or rtewspaper
report, or otherwise, and knew that it was
intended to be enforced, or if ho consented
to the order, or if he was present iii Court
when the order was pronounced, or when
the motion was
made, although he loft
before tho order was pronounced."
(Oswald's Contempt of Court, 3rd Edn. pp. 199 and
:!03).
The order in the present case was a
prohibitory
order
and
if
thn
appellants
knew
that
the High Court had
prohibited
delivery of
possession till May 23,
1958, it
was undoubtedly the duty
of the appellants
to carry out that order. Wo <lo not think that
the appellants can take up the plea that as the
order had not been officially communicated to
them, they were a.t liberty to ignore it. The appellants were officers whoso
duty it was to uphold the law and if they 'knew that a valid order
had been ma.de by the High Court staying delivery
of possession, they disobeyed that order at their
peril. There may be circumstances where officials
-
3 s.c.R.
SUPREME COURT REPORTS
139
entrusted with the duty of carrying out a legal
order may have valid reasons to doubt the authenticity of the order conveyed to them by interested
parties and in those circumstances it may be said
that there was no wilful disobedience of the order
made. We do not, however, think that the appel·
!ants in the present case had any real justification
for doubting the authenticity of the order made
by the High Court, even though the order had
not been officially communicated to them. The
appellants knew that an interim order of stay had
been made by the High Court on May 16, 1958;
that order was in force till May 19, 1958. Thereafter the appellants were informed not merely by
interested parties but by an Advocate, who was
an officer of the Court, that the High Court had
extended the stay order npto
May 23, 1958.
A
formal application supported by an affidavit was
made to that effect. Despite the reason alleged
by the appellants that there was a background of
enmity between the parties, we do not think that
the appellants have given any good reasons on
which they were entitled to doubt the authenticity
of the order communicated to them by Ganga
Bishan, an Advocate acting on behalf of Didar
Singh. It is worthy of note that the appellants
did not deliver possession in Didar Singh's case.
They were content with delivering possession in
the case of the respondent only. Taking into
considerations all these circumstances we are satisfied that there was in this case in the eye of the law,
a wilful disobedience of the order of the High
Court staying delivery of possession, even though
the appellants might have wrongly but honestly
believed that it was not safe to act on the information given to them by Ganga Bishan.
The learned Advocate for the appellants has
referred us to a num her of decisions, English
and Indian, relating to mandatory orders, or
1962
Ho$hiar Singh
Y.
G-urbachan Singh
Das ;T.
191iZ
Hoshia• 8in:h
..
111rhf'fcha11 Si11:h
DaJ J.
140 SUPREi\IE COGH.T REPORTS [1962] SUPP.
orders for the
payment of money, 'or
orders
which
require under the rules
of the Court
tu be served in
particular manner. In re: Holt '
(wi lnfm11)(1); Ex-parte Linvley ('); In re: Tuck
ilfurch v. £oosemore ("); Dwijendra Krishan Datta v.
Surendra Nath :\'ay Choudhury ('): and Gordon v.
Gordon('). In those docisions
it was held that
it was necessary to havo the order properly served
before charging a person with disobcrlioncc of it.
We do nut think th&t those decisions are in point,
because we are dealing with a prohibitory order
and in tho matter of a prohibitory order it is
well-settled that it is not neces.-iary that the order
should have been served upon the piuty against
whom it has been granted in order to justify
committal for breach of such an order, provided
it is proYed that the person complained against
had notice of the order aliunde.
The distinction
between prohibitory orders and orders of an atlirma.tive nature wus adverted to in N. Baksi v. 0. /(_
Ghosh(') and a
largo number of decisions were
referred to in support of the rule that in respect
of a prohibitory order, service of the order was
not essential for founding an action in contempt.
We do not think that any useful purpose will be
served by examining thoRe decisions over a.gain.
We are content to adopt for tho purposes of this
case the rule as succinctly put by Oswald and
quoted earlier -in this judgment.
Lastly, our attention has been drawn to tho
statements made
by the respondent in para. 22
of his petition to tho effect that though appellant
No. 2 ma.de a report about delivery of possession
in respect of the land of the respondent, no actual
dispossession could be made because cotton · crop
was standing on the land a.nd a. large number
of pJJrsons had gathered there. The
argument
before us is that if, according to the respondent
(1) (1879) 11 Ch. D. 168.
(3) (1906! 1 Ch. b92.
(5) (1946) 1 All B.R. Zo\6.
(21 (1879) 13 Cb. D. 110.
(4) A.1.R. 1927 Calculta 548.
(6) A.1.R. 1957 Patna 528.
3 S.C.R.
SUPREME COURT REPORTS
141
himself, no actual dispossession took place then
this is not a fit case in which action for contempt
should be taken against the appellants. It bas
been submitted on behalf of the appellants that
contempt proceedings are of an extraordinary
nature and the Court should be reluctant to
exercise its extraordinary power if the action complained of is of a slight or trifling nat11re and
does not cause any substantial loss or prejudice to
the complainant. It has been argued that if the
respondent himself said that he ha.cl not been actually dispossessed, then there was no reason for
proceeding against the appellants for contempt of
court. Secondly, it is pointed out that the appellants offered an apology in case the High Court
held that they should have taken action on the
information given to them by Ganga Bishan. As
to the second submission, it is enough to point
out that in a matter relatin~ to contempt of court,
there cannot
be both justification and apology.
(See
M. Y. Shareef v.
The Hon'ble Judges of the
High Court of Nagpu.r (1). As to the first submission we may draw attention. to the statements
of appellant No. 2 in para. 21 of his affidavit in
which he said that so far as the respondent's land
was concerned, possession was delivered to B11dh
Singh. This statement of appellant N"o. 2 clearly
shows that the two appellants took the very
action which was prohibited by the High Court
by its order dated ·May 19, I !158.
We are, therefore, unable to accept the submission that there
was no foundation for taking action against the
appellants for contPmpt of court. This disposes
of all the points urged -0n behalf of the appellants.
As to the punishment imposed, the l(larned
Judge took into consideration that the appellants
wrongly but honestly might have believed that
thev were not bound 1 o hold their hands in the
absence of an official communi~tlon of the order
(ll [1955] l S.C.R. 757.
1962
Hoshiar Singlp
••
Gurbachan 8 ing
Dai J,
1962
Hoshiar S1'ngh
V,
Gurbachan Singh
DasJ.
Rathuhar Dayal,],
142 SUPREME COURT REPORTS [1962) SUPP.
of the High Court. That belief a1forded no defence to the chl\rge of contempt of court, bnt. was
a consideration relevant to the sentf>nce.
Jn our
opinion, there are no ground~ for
interference
with the order of the High Court. 'l'he appC'al
accordingly fails and is dismissed.
RAOHQ!AR DAYA!., J.-I have had the previlcge of perusing thP ,Judgment of my learned
brother S. K. Das, J., bnt regret. my inability to
hold that tho appellants committed contempt of
Court.
I need not repeat the fact.I' set out in the majority judgment.
No conviction for committing contempt of
Court r.an be based on the finding of the High
Court that the appellants delivered poeses~ion believing that they were not bound to hold their
bands in the absenr.e of the official communication
of the High Court's orckr. The finding mrans that
they dPlivered po~SPesion not in defiance of the High
Court's ordN, but bPcause they honestly thought.
that in the absence of the official communication of
the order, they could uot act on the supposition
that the original stay ordn. whieh was to be effective up to !\fay rn, 1958, continued to he effective.
If in their honest opinion no stay order existed at
the time, their conduct cannot be said t<i amount to
\\ ilful disobedience of the High Court's 01 der extending the st.ay order up to :\fay 23, 1958.
No
question of wilful disobedience can arise when the
very existeneo of the <'rdcr is not believed. The
question of obedience or disobediPnce arises only
after the party knows of the order and if tho
party docs not know the order, 110 such question can
arise.
The allegations in the petition by the first
responcknr, filed in t.he High Court, did not make
out that the appellants delivered
po~session, tho
-·
3 S.C.R.
SUPREME COURT REPORTS
143
delivery of which had been stayed upto May 23,
1958, by the High Court by its order dated May
l!J, 1958.
TbiA is clear fro'll
the statements in
paragraphs 21 and 22 of the petition. They are:
"21. However, when actually he attempted to start the work of dispossession, he found
that a large number of people were collected
at the spot and apprehending that the police
force already taken to the spot might not be
sufficient to cope up with the situation if
some trouble arose, he withdrew from the
spot.
22. That although in the land possessed·
by the petitioner in Jag Malera, cotton crop
was standing in some of the fields and no
proceedings for dispossession of the petitioner
could be taken by respondent .No. 2 on
account of the presence of a large number of
persons at
the spot, respondent No. 2,
however, made som<' report later on that the
petitioner had been actualy dispossessed of his
lands and the same was given over to Budh
Singh at the spot.
In the other cases,
however, he made a report that he could not
deliver possession on account of the presence
of a mob at the spot and that the police force
with him being too small, was not sure to cope
up with the situation."
These paragraphs can only mean that appellant No. 2 attempted to start the work of dispossession, but did not proceed further, and withdrew
from the spot iu view of an apprehension of breach '
of peace and that be made some report of a fictitious kind to the effect that the petitioner had been
actmclly dispossessed of his land and possession had
been given over to Budh Singh at the spot.
It was om phasized that actual possession could not
have been delivered on account of the standing
cotton crop. It follows that even on the statements
1962
Hoshit1r Sinrh
v.
Gurbachan Singh
R.i:hubar Dayal J,
1962
Hoshiaf' Singh
v,
(;urba,han S£r.gh
Rag}_ubar Da;al J.
144 SUPREME OOURT REPORTS [1962] SUPP.
of the first respondent in his petition for action
against the appellant~ for contempt of Court, there
waR no assertion that they had disobeyed tho stay
order by <.lelivering possession to Budh Singh. In
the absence of such an assertion, no itction could
have been taken or ought to have been taken against
the appelbnta.1
Contempt procei>dings are criminal or quasicriminal procPedin11s. It is essential that the nccusation made against the opposite part.v by the peti- ·
tionPr for taking action against him should be
preeiRe and Rhould dearly make ont that the
oppositr partv had, by some specific act, committod
contempt of Court. The conviction of the opposite
party must rest on the facts nlh~ged and proved by.
tho petitioner. A conviction mny also rest on the
sole admisgion of the allPged contemner if that
eRtnblishcR his commit.ting contempt of Court, but,
in that <·ase, his admission should be taken aR a
whole and not thnt its incriminating part be taken
out of the contP:i:t. and mado the baRis for conviction.
It is immaterial that appellant ~o. 2 st:tted in
his reply that actual nosRPssion oft.ho land in the
unnuthr;rised possession of thP first reRpondent was
delivered to Budh Singh and that at the time no
cotton crop waA Rtandin!!'. and that the respondent
was adopting a contradictory position.
The High Court did not give any finding on this
question.
Tt. simply ~aid in its judgment, d1w t-0
the misr<',ailing of the allegations in the petition.
"fn spite of thiR fact it is n llegcd that in
the village the ~aib Tehsildar formally disposseRscd the present petitiouer and handed
ovpr hiR Janel to one Bndh Singh .. .''
The respondent made no stritP.mcnt about the
Naib Tehsil<lar formall.v
dispo~scssing him and
handing over thl' land to Bndh Singh.
3 S.C.R.
SUPREME COURT REPORTS
145
A clear.cut finding on
the disputed fact
whether actual p'.lsiession h'!.d been delivered or not
is not to be given in s11mm,1ry proceedings for contempt of Court.
If actual possession had been delivered to
Budh Singh, there must have been some good
reason for the respondent not to admit it in his petition and that can only be that in any future dispute
where the question of possession of the respondent or
of the Budh Singh be in question, the respondent be
not confronted with his own admission in his petition .
and affidavit accompanying it. 'It may be mention-·
ed that identical statements where made in paragaraphs 21 and 22 of the affidavit. There might be
some other reason for the respondent not to admit
the delivery of possession, but it is clear thnt the
respondent did not come to Court with clean hands
and, in the circumstances, proceedings for contempt
of Court on his application was wrong exercise of
discretion. However, the mlj.in fact remains that
no allegation was made in the petition that the
respondents had delivered possession.
The appellant~ were not served, by the time ·
the delivery of possesion may be ~upposed to have
taken place, with the order of the High Court
extending the stay order up to May 23, 1958. The
telegram sent by the counsel of Gurbachan Singh
from Chandigarh, recached the first appellant, the
Sub Divisional Offieer, at 1-30 p.m., on .May
10, 1958, and any order of his on it did not reach
appellant No. 2 till 6 p.m., by which time, according
. to him,, possession had been
delivered. The
formal stay order from the High Court reached
much later.
It may not be necessary to serve prohibitive
~
order on the party against whom it is granted, but
that party must have notice of the order before it
can be expected to obey it can be committed for
,.
contempt of Court for disobeying it. This is what
1962
Hoshiar Singh
v.
Gurbaehan Sim1h
Raghuhar DaJal J.
1962
lfoshiar Singh
v.
Gut6cchan Sinyh
Rathubar Do; al J.
146
SuPREME COURT REPORTS [1962) SUPP.
o~wald states at pago 203 of his book on 'Contempt
of Court', III Edition.
He says:
·
"In order to justify committal for brrad1
of a pohibitivc order it lli not
nccc~sary
that tho order should have been
8Cl'P'cl
upon the party against whom it has been
granted, if it be proved that ho had notice of
the order aliunde, kl! by tcfogram, or nnw8paper report, or otherwiso, .... "
It would appear from the later part of the observation that it was 8ufficient that the party coneenH·u
· gets notice of the prohibitive order by any mc~ns,
specially by tdegram or 11ews1nper report. This
is however not what was held in tho cases referred
to by Oswald in support of his statement.
Xotic<>
to the party concern.,<l, of the prohibitive order. in
those cases was communieat.Cd by the Court
through it.s regular procedure or by a Solicitor of
the Court.
In In re Bryant (1) the parties conc<~rned wern
informed by the solicitor of the judgn1ent-debtor
that the debtor h:id filed a liquidation petition in
the London Bankrnptc:y Court and that applicat.ion
would he made at the next 8itting of the Court to
restrain further p1occcdings under the execution.
The auctione:er cunccrncd received a telcirram fr<,111
Bryant's solicitors referring to the parties to t lw
case and stating that injunction staying sale nlld
further pro<~'cdings had been granted that morning
and· that the order would be served as soon as possi.
ble. The auctioneer, however, proceeded with th•.'
sale. It was in tlwse circumstances th:i.t tbo part i<·s
concerned wtrc held
to have disobeyed
t lw
order of the Court and to have committed its
contempt. The ~olicitor was
an officer of the
Court.
This case
i~ no authority for the propositiu 11
that information conveyed to the party concnrnc d
(I) 1..R.