# THE STATE OF BIHAR v. RA~I SONABATI KUMARI

- **Citation:** [1961] 1 S.C.R. 728
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 83 of 1956
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bihar-v-ra-i-sonabati-kumari-2219
- **Pages:** 22

## Headnote

Stpl1:mb~r ao.
728
SUPREME COURT REPORTS
[1961]
THE STATE OF BIHAR
v.
RA~I SONABATI KUMAR!
(S. K. DAs, J. L. KAPUR,
K. SuBBA H.Ao
.M. HIDAYATULLAH a.nd N. RAJAOOPALA
AYYANOAR, JJ.)
Temporary injunction-Disobedience by Stale of order issued
against it-Proceeding i11 contempt against the Slal<-M ainlarnablity-Code of Civil Procedure, 1908 (Act I' of 1908), 0. 39,
r. 2(3)_:Constitutio11 of India, Art. 300.
The respondent sued the State of Bihar for a declaration
that the Bihar Land Reforms Act, 1950, was ultra vires, void and
unconstitutional and for a permanent injunction restraining the
State and its off!fers or agents from issuing any notification
thereunder in respect of her estate or taking possession thereof
and on a petition filed along with the plaint obtained an order
of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter,
the State made an application under 0. 39, r. 4 of the Code for
a discharge of the order of temporary injunction on the ground
that the impugned Act had in another case been declared valid
by the Supreme Court.
Before that application could, however.
be h~ard, the State o! Bihar, on May 19, 1952, issued a notification under s. 3(1) o! the Act, authenticated by the Additional
Secretary to the Government, declaring that, amongst others,
the respondent's estate had vested in the State o! Bihar under
the provisions of the Act. Thereupon the respondent moved
the trial Court for taking action against the State under 0. 39,
r. 2(3) of the Code. The contention on behalf of the State was
that in view of Art. 31-B of the Constitution the issue o! the
notification was lawful and could not constitute contempt of
Court. The Subordinate Judge held that this was no defence
to the application by the respondent and directed attachment of
the appellant's property to the value o! Rs. 5,000 and the High
Court on appeal affirmed that decision.
Held, that the courts below took the correct view of the
matter and that the appeal must be dismissed.
The procedure laid down by 0. 39, r. 2(3) o! the Code o!
Civil Procedure is remedial and essentially one for the enforcement or execution of an order of ten1porary injunction passed
under 0. 39, r. 2(1) and is available against the State although
the provision for detention may not apply to it. It is wrong to
say that it is either contrary to Art. 300 of the Constitution or
hit by the rule that no action lies against the State m tort or
for a wrong-doing entailing punishment or compensation.
District Board of Bhagalpur v, Province of Bihar, A.l.R. 1954
..
1 S.C.R. SUPREME COURT REPORTS
729
Pat. 529 and Tarafatullah v. S. N. Maitra, A.LR. 1952 Cal. 919,
distinguished.
There is also no basis for the co.ntention that the State is
not expressly or by necessary implication mentioned in 0. 39,
r. 2(3).
The word 'person' used by it, properly construed,
includes the defendant against whom the order of injunction is
primarily issued as also the defendant's agents, servants and
workmen. Since the court'~ power to issue an order of temporary
injunction against the. State under 0. 39, r. 2(1) cannot be in
doubt, disobedience of such an order when issued necessarily
attracts 0. 39, r. 2(3) of the Code.
Director of Rationing & Distribution v. Corporation of Calwtta,
[1961] 1 S.C.R. 158, held inapplicable.
Held, further, that when once an order is passed which the
Court has jurisdiction to pass, it is the duty of the State no less.
than any private· party to obey it so long as it stands, and the
conduc_t of the State Government in the instant case in issuing
the notification at a time when its application for vacating the
injunction was 'still pending and the attitude taken up by it
after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.

## Text

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Stpl1:mb~r ao.
728
SUPREME COURT REPORTS
[1961]
THE STATE OF BIHAR
v.
RA~I SONABATI KUMAR!
(S. K. DAs, J. L. KAPUR,
K. SuBBA H.Ao
.M. HIDAYATULLAH a.nd N. RAJAOOPALA
AYYANOAR, JJ.)
Temporary injunction-Disobedience by Stale of order issued
against it-Proceeding i11 contempt against the Slal<-M ainlarnablity-Code of Civil Procedure, 1908 (Act I' of 1908), 0. 39,
r. 2(3)_:Constitutio11 of India, Art. 300.
The respondent sued the State of Bihar for a declaration
that the Bihar Land Reforms Act, 1950, was ultra vires, void and
unconstitutional and for a permanent injunction restraining the
State and its off!fers or agents from issuing any notification
thereunder in respect of her estate or taking possession thereof
and on a petition filed along with the plaint obtained an order
of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter,
the State made an application under 0. 39, r. 4 of the Code for
a discharge of the order of temporary injunction on the ground
that the impugned Act had in another case been declared valid
by the Supreme Court.
Before that application could, however.
be h~ard, the State o! Bihar, on May 19, 1952, issued a notification under s. 3(1) o! the Act, authenticated by the Additional
Secretary to the Government, declaring that, amongst others,
the respondent's estate had vested in the State o! Bihar under
the provisions of the Act. Thereupon the respondent moved
the trial Court for taking action against the State under 0. 39,
r. 2(3) of the Code. The contention on behalf of the State was
that in view of Art. 31-B of the Constitution the issue o! the
notification was lawful and could not constitute contempt of
Court. The Subordinate Judge held that this was no defence
to the application by the respondent and directed attachment of
the appellant's property to the value o! Rs. 5,000 and the High
Court on appeal affirmed that decision.
Held, that the courts below took the correct view of the
matter and that the appeal must be dismissed.
The procedure laid down by 0. 39, r. 2(3) o! the Code o!
Civil Procedure is remedial and essentially one for the enforcement or execution of an order of ten1porary injunction passed
under 0. 39, r. 2(1) and is available against the State although
the provision for detention may not apply to it. It is wrong to
say that it is either contrary to Art. 300 of the Constitution or
hit by the rule that no action lies against the State m tort or
for a wrong-doing entailing punishment or compensation.
District Board of Bhagalpur v, Province of Bihar, A.l.R. 1954
..
1 S.C.R. SUPREME COURT REPORTS
729
Pat. 529 and Tarafatullah v. S. N. Maitra, A.LR. 1952 Cal. 919,
distinguished.
There is also no basis for the co.ntention that the State is
not expressly or by necessary implication mentioned in 0. 39,
r. 2(3).
The word 'person' used by it, properly construed,
includes the defendant against whom the order of injunction is
primarily issued as also the defendant's agents, servants and
workmen. Since the court'~ power to issue an order of temporary
injunction against the. State under 0. 39, r. 2(1) cannot be in
doubt, disobedience of such an order when issued necessarily
attracts 0. 39, r. 2(3) of the Code.
Director of Rationing & Distribution v. Corporation of Calwtta,
[1961] 1 S.C.R. 158, held inapplicable.
Held, further, that when once an order is passed which the
Court has jurisdiction to pass, it is the duty of the State no less.
than any private· party to obey it so long as it stands, and the
conduc_t of the State Government in the instant case in issuing
the notification at a time when its application for vacating the
injunction was 'still pending and the attitude taken up by it
after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 83 of 1956.
Appeal from the judgment and order dated June
30, 1954, of the Patna High Court in Appeal from
Original Order No. 255 of 1952.
Lal Narayan Sinha and S. P. Varma, for the appel- ·
!ant.
·
· A. V. Viswanatha Sastri, B. K. Saran, D. P. Singh
and K. L; Mehta, for the respondent.
1960. September 20.
The Judgment of the Court
was delivered by
AYYANGAR J.-The State of Bihar is the appellant
in this appeal which comes before us on a certificate
granted by the High Court of Patna under Art. 133(1)
(c) of the Constitution.
The principal point of law raised for-decision in the
appeal is whether a State is liable to be proceeded
against under 0. 39, r. 2(3) of the Code of Civil Procedure, when it wilfully disobeys an order of temporary
injunction passed eo nomine against it.
There is little controversy regarding the facts, but
they have to be set out to appreciate some of the
matters debated before us.
The Stale of
Bihar
v.
Rani Sonabtiti
Ku111ari
Ayyangay ].
Tise SlaJe of
Dillar
v.
Rani Sonabati
Kumari
730
SUPREME COURT REPORTS
[l96l]
The Bihar L&nd Reforms Act, 1950 (which we shall
refer to ae the Act), which provided for the transference to the State of the interests of proprietors and
tenure-holders in· estates within the State, received
the assent of the President on September II, 1950,
and was published in the Bihar Gazette on September
25, 1950. Thereupon Rani Sona.be.ti Kumari, the respondent, who was tho proprietresq of the Ghatwali
Estate of Handwa situated within the State, instituted against the State of Bihar, in the Court of the
Subordinate Judge, Dumke., on the 20th 1'l'ovember,
1950, Title Suit 40 of 1950, inter alia for a declaration
that the Act was ultra vires of the Bihar Legislature
and. was therefore "illegal, void, unconstitutional and
inoperative " and that the defendant had " no 'right to
issue any notification under the said Act or to take
possession or otherwise meddle or interfere with the
management of the estate in suit " and for a permanent injunction "restraining the defendant, its officers,
servants, employees and agents from issuing any
notification under the provisions of the Bihar Land
Reforms Act, in respect of the plaintiffs estate" and
also "from taking possession of the said estate and
from meddling or interfering in any way with the
management thereof".
Along with the plaint, the respondent filed a petition for a tern porary injunction in which the prayer
ran:
"It is therefore prayed that a temporary injunction be issued against the defendant, its officers, employees, servants or agents restraining them from
issuing any notification with regard to the plaintiff's
estate under the Bihar Land Reforms Act, 1950 (Act
XXX of 1950) and from meddling or interfering with
the possession of the plaintiff to tho properties in suit,
till the disposal of this .suit ".
The Court issued an ex pa.rte ad interim· injunction
presumably in terms of the prayer in the petition, and
directed notice of the petition to be served on tho
Stahl of Bihar who filed their counter-affidavit on
December 9, 1950, opposing the grant of any interim
injunction and praying that the petition be dismissed
1 S.lJ.R. SUPREME COURT REPORTS
731
with costs. The petition was heard in the presence
of both the parties on March 19, 1951, and the Subordinate Judge made the ad interim injunction absolute and the order went on to add "and it is ordered
that the defendant shall not issue any notification for
taking over possession of the suit properties under the
Land Reforms Act and shall not interfere with or
disturb in any manner ·the plaintiff's possession over
these properties under any of the provision of the
aforesaid Act until this suit is finally disposed of by
this Court". The order was appealable under 0. 43,
r. (1) (r) of the· Code, but the State preferred no appeal
and so it became final.
On May 17, 1952, an application was filed by the
State for vacating. the order, on the ground that the
validity of the Act had been upheld by this Court in
another case involving the same points and that
thereafter the plaintiff had no prima facie case to
sustain the injunction. Before however this application invoking the powers of the Court under 0. 39,
r. 4 of the Code came on for hearing-(it was actually
heard on May 30, 1952, when it reserved it for orders
to be pronounced on June 2, 1952) the State of Bihar
issued on May 19, 1952, a notification under s. 3(1) of
the Act declaring that the Handwa Raj Estate belonging to the respondent, . haid passed to and became
vested in the State under the provisions of the Act.
The notification ran :
"In exercise of the .powers conferred by subsection ( 1) of section 3 of the Bihar Land Reforms
Act, 1950 (Bihar Act XXX of 1950), the Governor of
Bihar is pleased to declare that the Estates described
in the First Schedule and the tenures described in the
Second Schedule hereto annexed belonging to the
proprietor and the tenure-holder named in the respective schedules have,. with effect from the date of the
publication of this notification in the Bihar Qazette,
passed to and became vested in the State under the
provisions of this Act".
The Handwa Raj Estate with the name of the res-
;vndent as the tenure holder was specified in the
Second Schedule.
z960
The State of
Bikar
v.
Rani Sonabati
Kumari
Ayyangar ].
732
Sl1PRE:\IE COCRT HEPORTS
[IOfll]
'~ 60
This was followed by a.n authentication m these ·
1'!11 S.1,,:e o_f
Hiluir
v.
.• ·1yy111Jgar }.
terms:
"By order uf tho Governor of Biha.r,
K. K. Mitra,
Additional Secretary to Government."
On coming to know of this notification the respondent moved the Subordinate Judge on June 2, 1952,
for taking action against the defendant in the suit,
for contempt under 0. 30, r. 2(3) of tho Codo of Civil
l'roced ure.
When notice of this petition was served on the
State it submitted a.n answer in these terms:
"That in obedience to the said order, the defendant begs to Rubmit that in view of the Article 31 B of
tho Coustitution, the aforesaid Notificat.ion, dated
l!J.5.52, and published in. Bihar Gazette, dated
21-5.52 is vn.lid, legal and authorised and the publication of the same does not constitute contempt of
court."
The only matter here set out, Yiz., that the constitutional Yalidity of the Act had been affirmed by
an amendmeut of tho Constitution, could obviously
afford no defence to the breach of an injunction order
and indeed this was not sought to be supported before
us.
The learned Subordinate Judge passed an order
011 July 31, 1952, which ran" that in view of the
notification coustituting a breach of the injunction,
the property of the defendant State of Bihar shall be
attached to the value of Rs. 5,000. The plaintiff is
directed to file the list of properties of this value and
necessary requisities for issue of the attachment within se1•en days of this order."
From this order the State preferred an appeal to
the High Court.
The appeal was, however, dismissed
by the High Court bY. judgment rendered on June 30,
1954, and by reason of a. certificate granted by the
learned Judges under Art. 133(l)(c) the State has
preferred this appeal.
The arguments addressed to us by Mr. Lal Na.ra.J a.n
Sinha. who appeared for the appellant State, when
closely analysed resolved themselves into five points:
1 S.C.R. SUPREME COURT REPORTS
733
_ (1) That the order of the Subordinate Judge dated
March 19, 1951, did not on its plain language, •foterdict the issue of a notification under s. 3(1) of the
Act, but merely directed the State, not to disturb the
possession of the plaintiff. It was common ground
that beyond the issue of the notification, neither the
State, nor its officers or servants had done anything
by way of interfering with the possession of the
plaintiff.
(2) That at the worst the order of the Subordinate
Judge, having regard to the language employed, was
reasonably capable of two interpretations-(a) that
the direction to the State included a prohibition
against issuing a notification under s. 3(1), and (b)
that there was no interdiction against notifications
under s. 3(1) but only against notifications which
directly involved or authorised interference with the
plaintiff's possession of her Estate. Proceedings for
contempt even for the enforcement of orders of Civil
Courts being quasi-punitive in their nature, it was
urged that a party who bona fide conducted himself
on the basis of one of two possible interpretations
could not be held guilty of contempt.
(3) That the rule that the Crown or the State could
not be proceeded against for a tort or wrong-doing
applied to the present case, since disobedience of an
order of injunction is virtually a wrong for which
0. 39, r. 2(3) provides the punishment- or compensation.
( 4) That a State is not bound by a Statute unless
it is named therein expressly or by necessary implication, .and as there is no mention of a State in specific
terms in 0. 39, r. 2(3), a State cannot, as such, be proceeded against for disobedience of an order of Court.
(5) Even if a State could be proceeded against for
wilful disobedience of an order, the publication of the
notification under s. 3(1) which was the contempt
alleged, was not proved with certainty, to be an act
of the State Government, and that in the absence of
a definite proof of this fact, the liability of the State
could not arise ; and that if the nvtification dated
May 19, 1952, constituted the act of disobedience,
Ig6o
The Stale of
Bihar
v.
Rani Sonabati
Kuniari
Ayyangar J.
The State of
81/iar
v.
Rani Sonabati
Kuma1i
734
SUPREME COURT REPORTS
[ 1961 J
then only the Additional Secretary, Mr. K. K. Mitra
who authenticated the notification could, if at a.II, be
made liable.
It would be convenient to deal with these matters
in that order.
The first point urged was that the order of the Subordinate ,Judge dated March 19, 1951, dfd not in terms
or in substance prohibit the State from issuing a.
notification under s. 3(1).
Section 3(1) of the Act rims:
"The State Government may, from time to time,
by notification, declare that the estates or tenures of
a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State."
It was urged that the Subordinate Judge by his
order directed the State " not to issue any notification
for taking possession "-and as the notification under
s. 3(1) does not proprio vigore affect or interfere with
the possessio'n of the proprietor or tenure-holder, the
issue of such a notification was not within the prohibition. The same argument was addressed to the
High Court and was repelled by the learned Judges
and in our opinion correctly. In the first place, the
only "notification" contemplated by the provisions of
the Act immediately relevant to the suit, was a. notification under s. 3( I). Such a notification has the
statutory effect of divesting the owner of the notified
estate of his or her title to the property a.nd of transferring it to and vesting it in the State. The State is
enabled to ta.ke possession of the estate a.nd the properties comprised in it by acting under s. 4, but the
latter provision does not contemplate a.ny notifioa.tion,
-only executive acts by authorized officers of the
State.
<j>f course, if action had been taken under s. 4,
and the possession of the respondent ha.d been interfered with, there would have been a further breach
of the order which directed the State not" to interfere
with or disturb in any manner, the plaintiff's possession.
What we desire to point out is that the order
of the Court really consisted of two parts- the earlier
directed against the defendant publishing a notification which in the context of the relevant statutory
--j
1 S.C.R. SUPREME COURT REPORTS
735
provisions could only mean a notification under s. 3(1)
and tlrn.t which followed, against interfering with the
plaintiff's possession and the fact that the second part
of the order was not contravened is no ground for
ho!Jiug that there had been no breach of the first
part. In the next place, the matter is put beyond
the pale of controversy, if the order were read, as it
has to be read, in conjunction with the plaint and the
application for a temporary injunction. Mr. Sinha
did not seriously contend that if the order of· the
Court were understood in the light of the allegations
and prayers fa. these two documents, the reference to
the "notification" in it was only to one under s. 3(1)
of the Act, and that the injunction therefore was
meant to cover and covered such a notification. We,
therefore, hold that this objection must fail.
(2) The second contention urged was that even if
on a proper construction of the order, read in the light
of the :Pelevant pleadings, the State Government was
directed to abstain . from publishing a notification
under s. 3(1) of the Act, still, if the order was ambiguous and equivocal and reasonably capable of two
interpretations, a. party who acted on the basis of orie
of such interpretations could not be held to have
wilfully disobeyed the order. Stated in these terms,
the contention appears unexceptionable. For its being
accepted in any particular case, however, two conditions have to be satisfied: (1) that the order was
ambiguous and was reasonably capable of more than
one interpretation, (2) that the party being proceeded
against in fact did not intend to disobey the order,
but conducted himself in accordance with his interpretation of the order. We are cle&rly of the view
that the case before us does not satisfy either condition. In dealing with the first contention urged by
learned Counsel, we have pointed out the true construction of the order-and in our opinion that is the
only construction which it could reasonably bear.
But this apart, even if the order was equivocal as
learned Counsel ,puts it, still, it is of' no avail to the
appellant, unless the State Govermnent understood it ·
94
I960
The State of
Bihar
v.
Rani Sonabq,ti
Kumari
Ayyangar ].
ry6o
The Stnte of
l:Jihar
"·
Roia .)011ab1ti
J(un1a.·i
Ayya,igar J.
736
SCPHEME COURT REPORTS
[1961]
in the sense, lhat the order was confined to acts by
which the possession of the plaintiff was directly interfered with and the notification was issued on that
understanding and belief. There a.re two pieces of conduct on the part of the State Government which a.re
wholly inconRistent with the theory that the order
was unclorstood by them as learned Counsel suggested.
Tho first is that before the notification under s. 3(1)
was issued they applied to tho Court to vacate tho
order of injunction so that they might issue notification, and it was during the pendency of this application that the notification was issued-without waiting
for the orders of the Court on their petition. The
second is even more significant.
When notice was
issued to the defendant to show ca.use why it should
not be committed for contempt, one would naturally
expect, if the point urged has any validity, the
defence to be based on a denial of disobedience, by
reference to the sense in which the order was understood.
We have already extracted the relevant paragraph of the counter:u.ffidavit and in this there is no
trace of the plea now put forward.
Even in the
memorandum of appeal to the High Court against
the order of the learned Subordinate Judge under
0. 39, r. 2(3) there is no indieatiou of the contention
now urged and though a faint suggestion of inad vertcnce on tho part of some officer appears to have been
put forward during the Rtage of argument before the
High Court, the point in this form was not urged
before the learned Judges of the High Court, as seen
from the judgmenl. The question whether a party
has understood an order in a particular manner and
has conducted himself in accordance with such a construction is primarily one of fact, and where the materials before the Court do not support such a state of
affairs, the Court cannot attribute an innocent intention based on presumptions, for the only reason, that
ingenuity of Counsel can discover equivocation in the
order which is the subject of enforcement. The argument being in efTect that a party who ha.d hone. fide
misconstrued the order and acted on that basis, could
not be held to have wilfully and deliberat~ly disobeyed
•
J
l•
I
i
1 S.C.R. SUPREME COURT REPORTS
737
· the order, such a pie~ could obviously be urged only
when it is proved that a party was in fact under a
misapprehension as to the scope of the order, but this
was never the plea of the Government right up to
the stage of the hearing before the High Court. Besides,
if the case of the State was, that acting bona fide it
had committed an error in construing the order, one
would expect an expression of regret for the unintentional wrong, but even a. trace of contrition is singula.ry lacking at any stage. of the proceedings. We
a.re clearly of the opinion that there is no factual
basis for sustaining the second ground urged by learned Counsel.
(3) Turning to the next point urged, learned Counsel· amplified it in these terms. No doubt, having
regard to Art. 300 of the Constitution-which practically reproduces the earlier statu.tory provisions in
that behalf going back to 1858, States are not
immune from liability to be sued. Learned Counsel
added that he would not dispute that Title Suit 40 of
1950 was properly laid and that the Court had jurisdiction to entertain it, as also jurisdiction to pass the
order of temporary injunction against the defendant
State pending . the decision of the suit. But learned ·
Counsel urged that it did not automatically follow
that the State was amenable to proceedings, for disobedience of the injunction. Proceedings for contempt
even for enforcing an order of a Civil Court, he submitted, were really a. punishment for wrong doing and
in essence, therefore, quasi-criminal. For this reason
he contended that Art. 300 which permitted suits to
be filed against the Union and the States could not be
held to authorise proceedings of such a quasi-criminal
nature, and that as a result the Common Law rules,
that the King could do no wrong and that the Crown
could not be sued for a tort, were attracted. In this
connection learned Counsel invited our attention to
the decisions in District Board of Bhagalpur v. Province of Bihar (1) and Tarafatullah v. S. N. M aitra (').
In the first of these cases, a large number of English
and Indian .decisions on the liability of the Crown in
(I) A.LR. 1954 Pat. 529.
(2) A.I.R. 1952 Cal. 919, 9•7·
•
The State of
Bihar
v.
Rani Sonabati
J(uniari
Ayyangar ].
Tli~ State of
[Jihar
v.
J?1u1i So11abati
J(uniari
Ayyangar ].
738
S"CPREME COURT REPORTS
[1961]
tort were discussed. The question for consideration
before the learned Judges was whether the suit before
the Court against the Government could be legally
maintainable and as to the scope and limitR of the
rule " respondeat superior " in such actions against
the State-but both these matters are far removed
from the pale of the controversy before us.
In regard to the other ruling of the learned Judges
of the Calcutta High Court, learned Counsel relied not
so much on the decision itself but on the following
observations of M ukerji, J. ('):
" A State as such cannot be said to commit contempt. In the case of the Ste.te the e.llegation must
be against a particular officer or officers of .the State.
\Vhere as in this case an order was obtained against
the State in a civil proceeding restraining certain acts
of the State, and it is alleged by the complainant or
the petitioner that there has been a contempt by
breach of that order, the petitioner for contempt will
have to take out the Rule for contempt against the
particular officer or officers who has or have disobeyed
that order. In such a petition for contempt the Huie
must be asked against an individual and not against
the State. Article 300 of the Constitution of India
provides for proceedings by way of suit against the
State or the Union of India and cannot be extended
t-0 e.pply to contempt proceedings".
In order however to apprecie.te tho observations 1t
is necessary to consider briefly the factB of the case.
The decision was concerned with an application to
commit the respondents for contempt for disobedience
to an order of ad interim injunction granted by a
single Judge of the High Court on a petition for the
issue of a writ of Certiorari under Art. 226 of the Constitution. No doubt, the order of temporary injunction was issued against the Government, but the
disobedience complained of was not any act of the
.Jovernment as such, but of certain officers. N otwithstanding this, the Secretary to Government who had
been formally impleaded as representing the Government, was sought to be proceeded against personally
(1) A.I.R. 1952 Cal. 919. 927.
I S.C.R. SUPREME COURT REPORTS
739
for contempt and the prayer being that he as representing the Government should be commftted to
prison. As Chakravartti, C. J., pertinently pointed out,
a more ridiculous prayer.could not be imagined. The
learned Judges further found that as a fact no disobedience of the order had been proved. The question therefore whether the Government could be liable
to be pr~ceeded against for contempt for disobedience
of an order which a Court has jurisdiction to pass and
which bound the Government, the act constituting
the contempt being unmistakably an act for which
Government could not as such disclaim responsibility
-did not ·arise for consideration in that case.
1
Having regard to the findings of fact reached by
the Court, the obsei:_vations regarding the scope'-Ofj;he
liability of Government were wholly obiter. In regard
to the passage relied on we need only say that obser!
vations about the ambit of Art: 300 of the Constitution are too widely expressed, and do ·not take into
account, the provisions of. the Civil Procedure Code
0. 21, r. 32 & 0. 21, r. 39(~)(3) which directly bear on
the matter and which we shall discuss presently.
Further, they cannot .also apply to those cases where
. the disobedience takes the form of a formal Government' order as iii this case. In this connection we
prefer the approach to the question indicated by the
learned C. J., who said:
·
" I do not say. that in fit cases a writ for contempt may .. not be asked for against a corporation
itself, or against a Government. In what form, in
such a·case, any penal order, if considered necessary,
is to be passe.d and how . it is to be enforced are
different matters which do.not call for decision in this
case. In England, there is a specific rule providing
for sequestration of the corporate property of the·
party concerned, where s11eh party is a corporation.
I am not aware of any similar rule obtaining in this·
·country, but I do not.consider it impossible that in a
. fit case a fine may be imposed and it may be realised
by methods analogous to sequestration which would
· be q, distress warrant directed against the properties of
.the Government or the Corporation".
The State of
Bihar
v.
Rani Sonabati ·
, Kumari
Ayyangar ].
The Str•te 1>f
!J1h(1;
v.
U.n1i SvJ1,1f1att
h·11:nari
Ay)·-1ngar j.
740
SUPREJ!E COURT REPORTS
[1961]
Learned Counsel laid considerable stress on the proceedings under 0. 39, r. 2(3) being quasi-criminal, in
an attempt to C>stablish that the State could not be
proceeded against for Ruch a.criminal wrong. Though
undoubtedly proceedings under 0. 39, r. 2(3), Civil
Proceclure Code, have a punitive aspect-as is evident
from the contemner being liable to be ordered to be
detained in civil prison, they are in substance designed to effect the enforcement of or to execute the order.
Tl.tis is clearly brought out by their identity with the
procedure prescribed by the Civil Procedure Code for
the execution of a decree for a permanent injunction.
9rder 21, r. 32 sets out the method by which such
decrees could be executed-and cl. (I) enacts-" where
the part.y against whom a decree ............... for an
injunction has been passed, has had an opportunity
for obeying the decree and haH wilfully failed to obey
it, the decree may be enforced, in the case of a decree
.................. for an injunction by his detention in the
civil pri8on, or by the attachment of bis property or
by both ". Clauses 2 and 3 of this rule practically
reproduce the terms of els. 4 and 3 respectively of
0. 39, r. 2, and the provisions leave no room for doubt
that 0. 39, r. 2(3) is in essence only the mode for the
enforcement or effectuation of an order of injunction.
While on the provisions of 0. 21, r. 32, it may be
pointed out that learned Counsel for the l?t.ate does
not contend that a State Government against whom a
dc,r;r,,e for a permanent injunction has been passed is
not liable tu hll proceeded against under this provision
of the Code in the event of the decree not being
obeyed by them. No doubt the State Government
not being a natural person could not bo ordered to be
detained in civil prison, on the analogy of Corporations for which special provision is made in 0. 39, r. 5,
but beyond that, both when a decree for a permanent
injunction is executed and when an order of temporary injunction is enforced the liability of the State
Government to be proceeded against appears to us
dear. The third point urged lacks substance and is
rejected.
Some point was sought to be made of the fact that
I S.C.R. SUPREME COURT REPORTS
741
as the State was a juristic entity merely, the wrong
which constituted the disobedience, must have been
the act of some servant or agent of the Government
and that except on the principle of vicarious liability
the State could not be liable. This argument which
is partly based on the observations of Mukherji, J., in
the' passage already extracted would if accepted deny
that there could be any action by the State at all, is
really part of the last submission and could conveni.
ently be dealt with along with it. Besides, it need only
be mentioned that the fact that officers and servants
of Government could be dealt with as individuals
bound by the orders passed against the defendant
Government, nor the fact that they would be liable
in contempt is no ground at all for holding that the
State Government itself would not be liable for their
own act.
(4) The invocation of the rule of construction
that the Crown was not bound by a statute unless by
express words or by necess.(try implication the inten.
tion so to bind was manifested, was the next submission of learned Counsel, reliance being placed for the
position, on the recent dacision of this Court in
Director of Rationing & Di8tribution v. Corporation of
Calcutta (1 ).
We shall proceed to consider the soundness of the
contention that on a proper construction of the Civil
Procedure C?de the State of Bihar is not within 0. 39,
r. 2(3).
Article 300 of the Constitution permits suits,
which before the Constitution could have been filed
against the Central and Provincial Governments res.
pectively, to be filed against the Union and the State.
As already stated, there is no dispute that having
regard to the cause of action alleged in the plaint,
Title Suit 40 of 1950 could be properly laid against
the State and the plaintiff could, if she was able to
make good her allegations of fact and law, be entitled
to be granted the reliefs prayed for in her suit includ.
ing the relief for a permanent injunction restraining
the State from issuing a notification under s. 3( l) of
the Act and from interfering with her possession of
(t) [1961] 1 S.C.R. 158.
r960
The St.1te of
Bihar
v.
Rani Sonabati
Kun1ari
Ayyangar ].
..
The Slate oj
Bihar
v.
Rani Souabati
Kumari
Ayyangar ].
742
SUPREME COURT REPORTS·
[196.l)
the estate of He.ndwe.. It is also admitted that the
Subordinate Judge had jurisdiction to pass the order
of temporary injunction age.inst the State Government
and that the order bound them. What is contended
however is that ~he method of enforcing that order
provided for in 0. 39, r. 2(3) of the Code is not
available against the State Government, because the
State Government is not named in that sub-rule
expressly or even by necessary implication. An examination L0wever of the provisions of the Code and
the Scheme underlying it in relation to proceedings
age.inst Government establishes that this submission is
wholly untenable.
The Code of Civil Procedure docs nut determine
w bother any particular suit or class of suits could be
filed age.inst the Government or not, these being matters of substantive law. But when in law a suit cculd
be properly filed age.inst Government-be it the Union
or the State, it makes a. complete provision for the
procedure applicable to such suits and the type of
orders which Courts could pass in such suits and how
these orders could oo enforced. Pe.rt IV of the Code
comprising ss. 79 to 82, sets out tho details of the procedure "to be followed in suits against Government.
Section 79 prescribes what the ca.use title of suits
age.inst Government
should be,
the
expression
'Government' being used to designate both the Union
as well as tho State Governments. Section 80 provides-making a specie.I provision not applice. hie to
suits against private parties, for a two months' notice
prior to suit. If Government were a party to a suit, it
necessarily follows that where the plaintiff succeeds
there might be a decree age.inst the Govt"rnment-the
Union or the State-and s. 82 lays down specie.I rules
for the execution of such decrees. In the lst Schedule
to the Code, there is a separate chapter-Chapter
XXV II, dee.ling with suits age.inst Government, in
which provision is specially me.de for adequate time
being granted to it for conducting the various stages
of the uroceedings before Courts.
The foregoing, in our opinion, makes it clear that
the State is bound by the Code of Civil Procedure, the
I
i S.C.R. SUPREME COURT REPORTS
743
scheme of the Code being that subject to any special
provision made in that regard, as respects Governments, it oocupies the same position as any other
party to a proceeding before the Court.
We a.re further satisfied that even apart from the
Scheme of the Code, the State, as a party defendant
is plainly within the terms of 0. 39, r. 2(3) of the
Code.
There is here no controversy that the Subordinate
Judge had jurisdiction to pass the interim order of
injunction against the State on the terms of 0. 39,
r. 2(1) which reads:-
" In any suit for restraining the defendant fro!Il
committing •..........•... injury of any kind, whether
compensation is claimed in it or not, the plaintiff may
at 8.ny time after the filing of the suit ............ apply
to the Court for a temporary injunction to restrain the
defendant from committ.ing the ..•............... injury
complained of .......•.•..... ".
The reference to the " defeuda.nt" in the sub-rule
precludes any afgument against the State being
exempt from or being outside the statute. The entire
argument on this part of the case was based on the
difference between the language employed in cl. (1)
extracted above and ol. (3) of the rule making provision for the manner in which disobedience to orders
passed under cl. (1) could be dealt with.
Clause (3) runs:
" In case of disobedience, or of breach of any such
terms, the Court granting an injunction may order
the property of the person guilty of such disobedience .
or breach to be attached, and may also order such
person to be detained in the civil prison for a term
not exceeding six months, unless in the meantime the
Court directs his release."
Learned Counsel urged that cl. (3) discarded the use
of the expression "defendant" employed in cl. (1)
which would have included the " State " in cases
where ths State was a party defendant, and had designated the party against whom the injunction ·order
could be enforced as ''.the person guilty of the di8obedienoe " and with a further provision empowering the
9~
I§6o
The Slol• df
Bihar
v.
Roni Sonabati
Kumari
Tiu Statr of
v.
RrPI' So'1abnti
/(11mari
744
SUPREME COURT REPORTS
[1961]
Court to order the detention of " such person " in
Civil prison.
The word " person " it we.a urged wa.s
a.t the best a. neutral expression, which in the a.bsence
of compelling indication, wa.s not a.pt to include " a.
State " a.nd pa.rticula.rly so in tho light of the rule of
construction approved by this Court in The Director
of Ratianing v. Corporatian of Calcutta('). It wa.s further pressed upon us thst the construction suggested
would not render injunction orders pa.seed on the
Sta.te when it wa.s a. defendant brutum fulmen, because,
the State a.s a. juristic person could a.ct only through
human agency and there would a.lwa.ys be some offi.
cer-a nature.I " person guilty of disobedience " in
every case where orders passed age.inst a. State were
disobeyed. We a.re cloa.rly of the opinion that the
entire argument should be rejected,
We feel wholly uua.ble to a..ccept the construction
suggested of the expression " person guilty of disobe.
diencc" in the clause. The reason for the variation
in the phraseology employed in els. (l) a.nd (3) of
0. 39, r. 2 is not far to seek.
Under tho law when a.n
order of injunction is passed, that order is binding on
a.nd enforceable not merely age.inst the persons eo no.
mine implea.ded a.s a. party to the suit a.nd age.inst
whom the order is passed but age.inst "the a.gents
a.nd servants, etc." of such a. party. If such were not
the law, order8 of injunction would be rendered nuga..
tory, by their being contravened by the a.gents a.nd
servants of parties. For that rea.wn, the la.w provides
that in order that a plaintiff might seek to enforce a.n
order age.inst a. servant or a.n a.gent of the defendant,
these latter need not be added a.s defendants to the
. . suit and a.n order obtained specifica.lly age.inst thema.n order age.inst the defendant sufficing for this pur.
pose. If such a.gents or servants, etc., a.re proved to
have form!!.! notice of the order a.nd they disobey the
injunction, they a.re liable to be proceeded age.inst
for contempt, without a.oy need for a. further order
age.inst them under 0. 39, r. 2(1).
This legal position
is brought out by the terms of a.n injunction order
set out in Form 8 of Appendix F to the Code which
\1) [1961] 1 S.C.R. 158.
•
, .
1 S.C.R. SUPREME COURT REPORTS
745
reads: "The Court doth order that an injunction be
a.warded to restrain the defendant C. D., his servants,
a.gents and workmen, from .................. ". It is not
suggested that the form which the order of the
Subordinate Judge took in this case, departed from
this model.
If such is the scope of an order for injunction, it
would be apparent that the expression " person " has
in 0. 39, r. 2(3) been employed merely compendiously
to designate everyontl in the group "Defendant, his
a.gents, servants and workmen" and not for excluding
any defendant against whom the order of injunction
has primarily been passed. It would therefore follow
that in cases where the State is the defendant against
w horn an order of injunction has been issued, it is
"expressly " named in the clause and not even by
necessary implication, and the rule of construction
invoked does not in any manner avail the appellant.
The matter may also be approached from a broader
angle. Where a. Court is empowered by statute to
issue an injunction against any defendant, even if the
defendant be the State-the provision would be frustrated and the power rendered ineffective and unmeaning if the machinery for enforcement; specially
enacted did not extend to every one against whom the
order of injunction is directed. Apart, therefore, from
a. critical examination of the phraseology of O. 39,
r. 2(3), the obligation on the part of the State to obey
the injunction and be proceeded against for disobedience if it should take place would appear to follow by
necessary implication. As Maxwell (1) puts it "The
Crown is sufficiently named in a statute when an intention to include it is manifest ".
The only point remaining for consideration is as to
whether the publication of the notification under
s.