TMI Blog1991 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... who has also been the Joint Secretary of the Indian Olympic Association, has filed the suit impleading the first defendant described as the President of the Indian Olympic Association and the second defendant described as the Secretary General of the Indian Olympic Association and alleging that the Association is a Society registered under the Societies Registration Act having its office at New Delhi. The members of the Association consist of National Sports Federations/Associations whose sport is included in the Olympic/Asian or Commonwealth Games, National Sports Federations/Associations which represent widely played Indian sports recognised by the Association, Olympic Associations of States as well as centrally administered Union Territories, service Sports Central Boards and Indian citizens who are member of the Olympic Committee. The Association has its own constitution containing the Memorandum of Association and Rules and Regulations which is the binding contract between the members of the Association. The management of the Association is entrusted to the Executive Council constituted under the Rules. Article VII of the Constitution provides that election would be held once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be convened. Yet, by a notice issued on 28-5-1990, the first defendant convened a Special General Meeting of the Association on 15-6-1990 at Park Sheration Hotel at Madras to consider and pass the following resolution as required by the requisitionists. Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect New Executive Council leaving the legality of the requisition to be decided by the General Assembly. The plaintiffs have not only sought a declaration that the notice dated 28-5-1990 issued by the first and second defendants on the basis of the requisition notices convening the Special General Meeting of the Indian Olympic Association on 15-6-1990 is illegal, null and void, but also a consequential injunction restraining the defendants from convening and conducting the Special General Meeting on the said date or on any other day at any other place and from considering and taking decision on the resolution mentioned in the notice. The plaintiffs have also filed an affidavit and application in the said suit seeking an order of injunction restraining the defendants from convening and holding a Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that I submit that if this Hon'ble Court is not inclined to grant the interim order of injunction restraining the holding of the Special General Meeting for any reason, I pray that this Hon'ble Court may be pleased to order that the resolution viz., Resolved that this House has lost confidence in the present Executive Council of the Indian Olympic Association and to elect new Executive Council. shall be passed in the Special General meeting of the IOA to be held on 15th June 1990 at 12.15 p.m. at Park Sheraton Hotel, Madras by secret ballot only and that the IOA President shall preside over the said meeting. On that very day Learned Trial Judge ordered for Judge's summons under Order 14 Rule 8 of the O. S. Rules read with S. 151 of the Code of Civil Procedure and handed over the same to the learned counsel for the plaintiffs. This time it said, why the Court be not pleased to order that the resolution mentioned in the meeting notice dated 28-5-1990 issued by the defendants be passed in the Special General Meeting of the Association to be held on 15-6-1990 by secret ballot only and that the first defendant would preside over in the said meeting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this Hon'ble Court and the Delhi High Court. The observer also read out order of this Hon'ble High Court and said that the members must abide by the order. The respondent and his men shouted that there will be voting only by show of hands and they rushed towards the chairs occupied by the President, Secretary General and the Observer. The said persons placed two chairs near the President and the respondent occupied the same and declared that the resolution of No Confidence has been passed and he has been elected as the President of I.O.A. When Sri B. S, Adityan instructed the officials of I.O.A. to issue the ballot papers the respondent instigated his supporters to go and seize the papers. Apprehending violence the President Sri. B. S. Adityan gave a request to the Commissioner of Police for a bandobust for peaceful voting. The President, Secretary General, the observer and the members including the respondent and they were sitting in the Meeting Hall till 4-30 p.m. In response to the request of the President, the Police Officers came to the Meeting Hall and stood guard for the ballot papers and the ballot box. Thereafter the officials started issuing the ball ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted at the entrance door of the hall but by reason of Thiru V. C. Shukla shouting to these members and asserting himself under cloak of his status as a Member of Parliament and a former President of the Indian Olympic Association the outsiders brought by him gained entry into the meeting hall. (iii) That Shri Avadh Behari Rohtagi, former Judge of this Hon'ble Court and Observer read out the order of this Hon'ble Court in CMP No. 6953 of 1990 to the entire assembly before commencing voting by secret ballot. (iv) That this Hon'ble Court's order required the poll to be conducted through secret ballot but Thiru V. C. Shukla, Thiru Mishra, Thiru Khan and Thiru Raj Singh and persons who are outsiders pounced on Thiru Avadh Behari Rohtagi, former judge of the Delhi High Court and assaulted him, tore off the ballot papers, took away the ballot boxes and prevented this Hon'ble Court's order from being implemented. (v) That thereafter the meeting was adjourned by (he President of the Indian Olympic Association who had been directed to Chair the meeting by this Hon'ble Court and whose adjournment therefore would bind the members present at the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ympic Association with the hope that the Government of India and the Ministry of Sports would support him in his adventure so that he could be the president of the Indian Olympic Association to represent India at the Asiad to be held in Beijing and the respondent appellant on the very next day, broke open the lock of the office of the Indian Olympic Association in the Jawahar Lal Nehru stadium and had physically trespassed and occupied the office, plaintiff/applicant sought a direction that Thiru E. S. Adityan continued to be the president of the Indian Olympic Association and that the meeting, if any, purported to have been held by Thiru V. C. Shukla after the adjournment of the Special General Meeting on 15-6-1990 and the resolution if any purported to have been passed appointing Thiru V. C. Shukla as President of the Indian Olympic Association would be of no legal consequence and would have no legal effect. 8. The respondent/appellant however appeared and filed a counter-affidavit in the contempt application. He has stated in the counter-affidavit that he came to know about the orders of this Court only after the meeting was concluded and, Curiously when lot of publicity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a copy of the First Information Report lodged by a Police Officer. 10. The respondent/appellant supported his stand by filing an affidavit of one V. K. Malhotra, who is the President of the Archery Association of India, a Member of Parliament and one of the members of the Association and affidavit of one G. S. Mandar, the President of the Wrestling Federation of India (Director General of Central Industrial Security Force) and a member of the Association, who attended the meeting and prepared the minutes of the meeting. 11. Thiru Murugan has filed a reply-affidavit and alleged, No meeting at all was held at the Park Sheraton Hotel on June, 15, 1990 at which any resolution of no confidence was passed or V. C. Shukla elected President of the I.O.A. or where he was authorised thereafter to nominate any executive Council. That is for the reason that the report of the observer or any of the two other reports including the affidavit of the petitioner herein, give a true and faithful account of what transpired at the meeting where persons who held high offices or were office-bearers of sporting associations or federations were prepared to resort to hooliganism, rioting and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r could have wholly given a wrong version of the incident as regards the order passed by this Court being made known to V. C. Shukla and others by the observer as well as by B. S. Adityan. Since the resolution proposed to be moved against Adityan, it was not proper for Mr. Adityan to be the President of the meeting. Such an objection could have been raised and objection could have been given in writing to Adityan and they would have requested the meeting to be postponed to get further orders from this Court. Even under the Constitution of IOA the President shall preside over the meeting of the Assembly and the Executive Council. Even assuming for a moment that the order of this Court directing Adityan to be President of the meeting was not made known, the Constitution IOA lays down that he shall be the President of such meeting. When the requisitionists wanted him not to preside over the meeting, as observed earlier, there could have been a requisition given to the President not to preside over the meeting. Learned trial Judge has found that on the facts pleaded before him, the plaintiff respondents were entitled to come forward with the prayer that the alleged resolution purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order that neither Mr. V. C. Shukla nor Mr. Adityan shall represent the Indian Olympic Association at the Asian Games commencing on September 22, 1990. It is clarified that this order will not prevent either of them from going to attend the Games in their private capacity or in any other capacity. The Government of India, if it think fit may nominate any person eminent in the field of sports other than a party to the dispute in this case to represent the Government and accompany the Indian Olympic Team. It is clarified that such person shall, however, not claim in any manner to represent the Indian Olympic Association but will accompany the team merely as a representative to the Government of India. 15. Government of India however has given a letter on 20-6-1990 to Sri V. C. Shukla Stating, .....in order to avoid any deadlock in the functioning of Indian Olympic Association (IOA) particularly in view of our participation in the forthcoming Beijing Asian Games being held in September-October 1990, Government would deal with you as President, IOA on interim basis, till such time final !decisions are taken in respect of any matters pending in court between you and others. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Olympic Association as well as by the observer appointed by the Delhi High Court and only such ballot papers as were signed by them would be held to be valid. The Court had further directed that the meeting to be held on 15-6-1990 would be presided over by Sri Adityan who was the President of the Indian Olympic Association. Since the Delhi High Court had allowed the Special General Meeting to consider and vote upon the resolution afore-quoted which had been moved by certain members of the Association against the present set of office-bearers headed by B.S. Adityan. There were about 123 members who were divided into two groups, one headed by Adityan and the other headed by Shukla. Before the resolution could be considered and put to vote, Vijay Kumar Malhotra, a leading requisitionist announced that the requisitionists had no confidence in Adityan and that they did not want him to preside the meeting and Mandher, President of the Wrestling Federation of India, was requested to take the chair. Mandher took his seat near Adityan and proposed name of V. C. Shukla for the office of President. Thereafter, the report says, At this stage 1 announced that this was illegal and brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be said : (1) Certain members of the Association wanted convening of Special General meeting and accordingly gave notice dated 16-5-1990 to resolve that the House had lost confidence in his Executive Council and to elect a new Executing Council. The notice suggested that the meeting should be convened at New Delhi within the specified period or else the requisitionists would hold the said meeting on 16-6-1990 or on any day thereafter at the National Stadium, New Delhi to consider the above noted item in the agenda. (2) The second respondent representing the Association, filed a suit in the Delhi High Court, being Suit No. 1871 of 1990 in which suit a prayer for injunction was made against the requisitionists. The Delhi High Court on 6-6-1990 passed an order restraining the requisitionists from holding any meeting at Delhi but directed that the Special General Meeting to be held at Madras would be so held and the resolution with regard to loss of confidence in the Executive Council would also be considered and put to vote. The Delhi High Court appointed Sri Avadh Behari Rohtagi, a retired Judge of the said Court as an Observer, who was present at the meeting on 15-6-1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o confidence a majority vote by show of hands and authorised Shukla to nominate other members of the Executive Council. In either case, this Court's direction was not carried out. Whether it was on account of the supporters of Sri Shukla interfering or on account of Sri Adityan deliberately withholding the information about the order of this Court and whether the alleged meeting was adjourned after pandemonium by Adityan or was held under the Presidentship of Sri Mandher in which Sri Shukla was elected as the President by show of hands, Sri Shukla admittedly has assumed the office of President. 19. Our task in the instant case however is limited to first retracing or exploring the jurisdiction of the Court to pass an order of the nature of the impugned order which on the one hand is a sort of declaration and on the other an order of mandatory injunction against the appellant and examining whether the facts of the case warranted a direction of this nature or not. 20. There are powers of this Court which are spelt out in various provisions of the Constitution of India and the statutes framed by the Parliament or the competent Legislature. But this Court's power as the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be deemed to limits or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 22. We do not think it necessary in the instant case to make any comparative study of the Civil and Criminal Jurisdiction of the High Court or the powers that this may exercise in a civil or criminal proceeding because in the instant case, we are concerned with a civil proceeding pending in this Court in which a certain order was passed and since that order has been allegedly violated, a application contempt has been filed followed by a sub-application therein under S. 151 of the Code of Civil Procedure in which application the impugned order has been passed. We may however state one contention raised on behalf of the appellant that a contempt proceeding being a criminal proceeding, the rules that are applied to a criminal proceeding have to be applied in the contempt case filed on behalf of the plaintiff/respondents and thus in the sub-application also, the same rules should be applied. Such a contention however is nothing but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Procedure, it would not be permissible to seek the power under Section 151 of the Code in order to justify such an order, accepted the contention that an injunction to restrain the respondent from executing a certain decree could not be granted in exercise of the inherent power of the Court (which has been subsequently overruled by the Supreme Court), but proceeded to consider the jurisdiction of this court as a Court of Record and said, ..... So far as a Court which is restricted to the terms of the Code of Civil Procedure it concerned, it has been held by Phillips, J. in Varadacharyulu v. Narasimhacharyulu AIR1926Mad258 , which I had occasion to follow in Ayyaperumal Nadar v. Mulhuswami Pillai AIR1927Mad687 that if an injunction cannot be passed under the provisions of O. 39, Rule 1 or R. 2, it is not permissible to seek the power under Section 151 of the Code in order to justify such an order. It has however been argued now that a High Court is not restricted to the terms of the Code, but possesses an equitable power, otherwise derived, to control the proceedings in other Courts. There can be no doubt that in England a power of this character exists and a discussion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswered in the negative the question whether there was anything in the Civil Procedure Code which took away that power. That case was decided under the old Code, but I do not think that there is anything either in S. 151 or any other provision of the new Code which would deprive a High Court of powers derived independently of it. Another case Singaravelu Mudali v. Balasubramania Mudali AIR1926Mad1126 , decided by Ramesam, J. has been cited to me as an authority in favour of the existence of the power, but I observe that he was able to bring the injunction within the terms of R. 2, O. 39 so that the remaking observations in the learned Judge's Judgment are, I think merely obiter, though, as I understand them, he was of opinion that a power exists apart from the terms of that rule. It appears to me however that Periakaruppan Chettiar v. Ramaswami Chettiar AIR 1228 Mad 491 is sufficient authority for the general proposition that this Court is not bound by the terms of the Code in issuing injunctions in appropriate cases. It appears to me that a case of the present for the exercise of such a power. We have two proceedings going on at the same time, one the execution of the decree a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule quite broadly in these words In 'In re Abdool: (1867) 8 SWR 32 '. There can be no doubt that every Court of Record has the power of summarily punishing for contempt. It is true the same learned Judge sitting in the Privy Council in 1883 traced the origin of the power in the case of the Calcutta, Bombay and Madras High Courts to the Common Law of England : See 'Surendranath v. Chief Justice and Judges of the High Court of Bengal', 1982 10 Tnd App 171 but it is evident from other decisions of the Judicial Committee that the jurisdiction is broader based than that. But however that may, be Sir Barnes Peacock made it clear the words any other law in Section 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the three chartered High Courts. Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three courts, the Charter of 1974, which established the Supreme Court of Bengal, while providing in clause 4 that the Judges should have the same jurisdiction has the Court of King's Bench in England, also expressly stated in clause 21 that the Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In 1906 the Privy Council remarked at page 108 of its judgment in -- 'In the matter of Sashi Bhushan Sarbadhicary I.L.R.(1907) All 95 : 1907 5 Cri LJ 57 There is also no doubt that the publication of this libel constituted a contempt of Court which might have been dealt with by the High Court in a summary manner by fine or imprisonment or both. After this came the Government of India Act, 1915. Section 106 continued to all High Courts then in existence the same jurisdiction, powers and authority as they had at the commencement of that Act, and Section 113 empowered the establishment of new High Courts by Letters Patent with authority to vest in them the same jurisdiction, powers and authority as are vested in or may be conferred on any High Court existing at the commencement of this Act. The Supreme Court has thereafter referred to various judgments of the Indian Courts including the Special Bench judgment of the Lahore High Court in Habib, in the Matter of AIR 1926 Lah1 ; 1925 26 Cri LJ 1409 In the Matter of Muslim Outlook, Lahore AIR 1927 Lah 610 : 1927 Cri LJ 727 Matter of Har Kishan Lal AIR 1937 Lah 497 : 1937 Cri LJ 883, a Special Bench Judgment of the Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, but that is because the chartered High Courts claim to have inherited this jurisdiction from the Supreme Courts of which they were successors. This jurisdiction could be saved by S. 9 of the Charter Act (24 and 25 Vict. C. 104) of 1861 and in the Code of Civil Procedure. 1908, it is so expressly provided in S. 4. But the power of the Civil Courts other than Chartered High Courts must be found within S. 94 and O. 39, Rr. 1 and 2 of the Civil Procedure Code. The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed: It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the Court a statutory discretion, there can be implied in Court, outside the limits of the Act a genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us that there are several allegations in the contempt application, which make out a case of criminal contempt. Civil contempt is thus essentially concerned with the enforcement of judgment, decree, direction, order, writ or other process of a Court. The administration of justice can only be effective if it has the means to enforce the court's judgment and orders. That is why civil contempts are also called contempt in procedure. Courts also do not easily resort to the contempt procedure. Contempt is a blunt weapon. It is used sparingly and only in cases where when it is found difficult to generate obedience and respect for the court or when a court attempts to secure obedience to its. orders, directions, etc., or to elicit respect to it. It rarely does any such thing to grandiose its Officers on the man power including the judges. It does so, first to undo the wrong done and secondly to ensure that the administration of justice is not brought into a scorn or ridicule because there is no interest of the court, which is not public interest. If violations of the Courts' orders will be ignored, there will be nothing left save for each person to take the law into his own han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oined by an injunction to have committed a contempt if they disobey the Older, a person who is not a party to the action, who knowing of an injunction, order or direction, aids and abets the defendant in breaking it is also a contemner is a rule which has since received wide recognition by almost every court. The rule stated in Seaward v. Paterson 1897 Ch 545 has been so often repeated that it has almost become a common knowledge that a person, who is not enjoined by the Court's order is not bound by the injunction order or direction. That was a case in which an injunction had been granted restraining Paterson, his agents and servants inter alia from doing or suffering to be done which may interfere with the full and quiet enjoyment of the plaintiff or his under tenants of the premises adjoining or neighbouring to the first, second and third floors of certain premises. In contravention of this injunction, Paterson allowed boxing matches to be held on his premises. The motion to commit was moved against him and other persons against whom it was alleged, had aided and abetted the breach. The Court of Appeal in that case held. There is no injunction against him -- he is no mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the land by saying so far as I made it provisional common land by the original application No. 807, then in respect of this land 1 withdraw it, and in so far as 1 was party to the applications in respect of rights 2279 and 2281. I am prepared to write a letter, take whatever step you require on my part, to assist the de-registration in respect of the rights provisionally registered in relation to this other land'. But the registration authority say. 'Well, in respect of this other land, we cannot de-register from these rights registered provisionally under 2279 and 2281 because you, the father, are the only person who created or caused their original registration. We are not prepared to act under the discretion given to us by a particular sub-section. We are not prepared to delete the registration of these rights in respect of this wider area of land; and consequently we are not prepared to take the steps which will make this wider area of land cease to be common land. So far as we are concerned, therefore, it will have to wait until the Commons Commissioners get round to deciding how much (if any) of the whole of this area is in fact common land and I, suppose, what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the plaintiffs argued that, in effect, there are two separate sets of persons in whom authority to activate the company itself resides. Quoting the well-known passages from Lord Haldane in Lenard's Carrying Co Ltd. v. Asiatic Petroleum Co Ltd. 1914 All ER Rep 280 he submitted that the company as such was only a juristic figment of the imaginatin, lacking both a body to be kicked and a soul to be damned. From this it followed that there must be some one or more human persons who did, as a matter of fact, act on behalf of the company, and whose acts therefore must, for all practical purposes, be the acts of the company itself. The first of such bodies was clearly the body of the directors, to whom under must forms of articles (see art 80 of Table A, or art 86 of the defendant company's articles which is in similar form) the management of the business of the company is expressly delegated. Therefore, their acts are the company's acts; and if they do not, in the present instance, cause the company to company with the undertakings given by it to the court, they are themselves liable for contempt of court. And this, he says, is well recognised : See RSC Ord 45, R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of the company unnecessarily. What that premise really means, he submitted, is the member (or corporators) of the company assembled in a general meeting', and that if the phrase is written out in fall in this manner it becomes quite clear that the decisions taken as such a meeting, and the resolutions passed threat are decisions taken by, and resolution passed by the members of the company, and not the company itself. They are therefore in the position of strangers to the order and not in contempt by their act in voting as they please, whatever its effect may be. Having so put the contentions, the learned Judge said. In my judgment, these submissions of counsel for the directors are correct. I think that in a nut shell the distinction is this. When a director votes as a director for or against any particular resolution in a directors' meeting, he is voting as a person under a fiduciary duty to the company for the proposition that the company should take a certain course of action. When a shareholder is voting for or against a particular resolution he is voting as a person owing no fiduciary duty to the company who is exercising his own right of properly to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever be made. In other words, Walton, J treated the undertaking on behalf of the company to be one depending upon the precise condition and the precise construction of the nature of the order and undertaking and the conditions of contract under which the directors of the company functioned, but found it rather difficult to anticipate a situation in which any order could be passed in the absence of the shareholders as party to the proceeding to bind them. 34. In Z Ltd. v. A (1982) 1 All ER 556 Lord Denning read 3 judgment on behalf of the Court of Appeal adopting a device as parties in the case were cancelled by the letters of the alphabet, and stated the guidelines on the issue of assets under a special direction called mareva injunction effecting bank accounts and other assets and observed, Once granted, a Mareva injunction has immediate effect on every asset of the defendant covered by the injunction, because it is a method of attachment, which operates in rem in the same manner as the arrest of a ship and because any authority which third parties may have to deal with the asset in accordance with the instructions of the defendant is revoked once such third parties h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the right to have these attachments issued, and nothing can be more in point than the Killiney Foreshore case (unreported). But even without any of these authorities, ordinary commonsense would show that persons cannot be allowed to set at defiance the order of the court because they do not happen to be named in the injunction. If in an action between A and B for the possession of a dwelling house, B is ordered to give up possession and to refrain from retaking possession, As remedy, if someone, C, subsequently tries to dispossess him, is an action against C, not proceedings for contempt of court in disobeying an order to which C was never a party and in the breach of which he was not assisting. So long as the full importance of Sir Nicolas Browne-Wilkins on V.C.'s words contempt of an order are appreciated, I consider that this represents the law. The Attorney-General does not allege that the defendants are up contempt of the orders made in the Guardian and Observer actions or assisted in doing an act which is a breach of the precise terms of the order, i.e. terms which restrained conduct by the Guardian and the Observer, their servants, agents, etc. He claims that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b). Whilst it certainly records that no one has been able to find a reported decision involving a finding of contempt by C, where the act complained of was intimately related to an order against B but did not involve assisting in doing that precise act, I am not sure of its significance, save that it underlines the fact that this is a novel situation. There is at least one case in the books which, if C had acted differently, would have raised the point. This is Galaxia Maritime S.A. v. Mineral import -- export (1982) 1 W.L.R. 539, where A obtained a Mareva injunction against B ordering B not to remove his assets from the jurisdiction including, in particular, cargo loaded on C's ship. C. for his own purposes --he wished to have the use of his ship and to allow the crew to get home for Christmas - -and regardless of the wishes of B wished to remove his ship from the jurisdiction with or without the cargo. Applied successfully for the injunction to be discharged and seems, to have assumed, as the court also assumed, that absent permission from the Court or the discharge of the injunction, the ship could not sail. I think that C was right, but had the ship sailed with the car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this is really the final stage in his reasoning a part from the practical considerations with which I must deal hereafter, Sir Nocolas Browne-Wilkinson V. C., said, anti, p. 955 F-F; the question which I have to decide whether, due to the chance that there is in existence an order of the court preventing the Guardian and the Observer from publishing, the appropriate sanction is contempt of court. At the risk of appearing to be a carping critic and I repeat my tribute to the clarity of his Judgment -- I think that the Vice-Chancellore misdirected himself in thus formulating the question. Contempt of court is not a sanction. Contempt of court is lawful conduct, the sanction for which is imprisonment, attachment, a fine or an order to pay costs. So the question should at least be rephrased to read: Whether, due to the chance that there is in existence an order of the court preventing the Guardian and the Observer from publishing, the conduct of 'The Independent'. 'The London Evening Standard' and 'The London Daily News' was unlawful as constituting an interference with the due administration of justice. But even this is not correct. Chanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Attorney-General sought to commit it or its editor for contempt consisting of disobedience of the order, the motion would have been dismissed, it would have been a reply of Lord Wellesley v. Earl of Morning ton ,(1848) 11 Boav. 180, which would have been indistinguishable. The fact that the order was addressed to the alleged contemnor would rightly have been disregarded as done without jurisdiction. But if the Attorney-General had moved instead upon the ground that the publication interfered with the administration of justice (Lord Wellesley v. Earl of Morning ton (No. 2), (1848) 11 Beav. 181), he would have succeeded and the fact that publication had taken place notwithstanding the warning conveyed by the form of the order would have been an aggravating circumstance. 36. Lloyd, L.J., in his separate judgment agreed with the proposition that in no case other than the Irish case of Smith-Barry v. Dawson, (1891) 27 LR 558, has as third party, not subject to the Order of the court, been held liable for contempt for doing an act which is prohibited except by aiding the person enjoined, and the proposition that while it is open to the court to extend the law, nevertheless the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who himself commits a breach should only he liable for civil contempt. That is the sort of nonsense which does no credit to the law, as was pointed out forcibly enough by Lord Atkinson nearly 75 years ago in Scott, (1913) AC4I7 . Coming to the third step to apply the law of contempt to a person who is not a party to the order in question he said, It is when he comes to the third step in his reasoning that I begin with great respect, to part company from Sir Nicolas Browne-Wilkinson V.C.I accept ,of course, that it is a fundamental Principle with certain very limited exception, of which the best established is ward ship ,that our courts act in personam. As Lord Eldon L.C. said in Iverson v. Harris, (1802) 7 Ves. Jun. 251, : I have no conception, that it is competent to this court to hold a man bound by an injunction, who is not a party in the cause for the purpose of the cause . That dictum was repeated with approval by Lord Uthwatt in Marengo v. Daily Sketch and Sunday Graphic Ltd., (1948) All ER 406, ; see also, Brydges v. Brydges and Wood (1909) P 187, . But the question here is not whether a third party is bound by the injunction, but whether he can be liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal contempt but not civil contempt and stated his opinion in these words, Although I hope I have made it clear in the earlier part of this judgment that the reason why I consider that the publications of the respondents are capable of constituting criminal contempt of court is because they interfered with the administration of justice and not because they disobeyed orders made in the Guardian/Observer actions which were not addressed to them, I am conscious that this conclusion is reached by a sophisticated argument which may not be readily appearing to the layman. It seems to me that it would be preferable, in an appropriate case, where it is apparent that the subject matter of an action e.g. confidential information or a secret process) could be destroyed by its publication by any person, whether a party to the action or not, for the court to make its initial protective order in terms which make it clear to third parties that they, too, must not destroy that subject matter. The question is whether the court has power, in an appropriate case, directly to order third parties not to destroy the subject matter of the action. The general principal was stated by farewell LJ. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule was not then before me. I believe that there can be another exception to the general rule which would enable the court to make an order, binding on the world at large, in the circumstances of the present case, where such an order may be appropriate to preserve the subject matter of an action pending trial. The law of contempt is but one example of the court's ability to regulate its own procedure so as to ensure that justice prevails. The rule that courts normally act only in personam is but another example of the same process. If the court needs to ensure that the subject matter of an existing action be preserved against all comers pending the trial of the action, then in my judgment the court can obtain the desired result by introducing another exception to the general rule that the court acts only in personam. I can find nothing in the cases to which I have referred, in which the general rule is stated, to say that the rule is wholly without exception, and it is not without significance that the Canadian courts have felt themselves able to make such orders . 38. Courts in United Kingdom, it appears, understand the distinction between civil contempt and criminal cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been confined to United Kingdom but it has been extended by the Canadian Courts also, at least once stated by the Viscount Haldane L.C. in SCOTT v. SCOTT, (1913) AC 417, 437, white the broad principle is that the Courts of this country must, as between the parties, administer justice in public, this Principle is subject to apparent exceptions, such as these to which I have referred to. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is one. In the two cases of wards of court and of lunatice, the court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative and disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it can only be disobeyed in contempt by persons named in the writ. None of the opposite parties in present case were defendants in the suit or named in the decree. Mr. B. C. De, for the petitioner seeks to overcome this difficulty upon the principle laid down in Avery v. Andrews, (1882) 51 U Ch 414 : 46 LT 279 and Seawards v. Paterson, (1897) 1 Ch 545 : 6 LJ Ch 267 to the effect that persons not party to the injunction may be proceeded against for contempt for aiding and abetting the breach. There can be, however, no question of aiding and abetting where there is no principal offender. There is no one whom the opposite party can be said to have aided and abetted. The principle, in my opinion, is not therefore applicable; and it seems to me that the decision of the Privy Council in the case of S. N. Banerji v. Kuchwar Lime Stone Co. Ltd. is conclusive upon that point. 41. In P. K. Kripalani v. Mahabir Ram Saha AIR1952Cal452 , where a sub-tenant resisted the execution of the order, a Division Bench of the Calcutta High Court said that committal for contempt is a serious matter and the jurisdiction must be exercised with scrupulous care only in a case which is clear and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n injunction, who is not a party in the cause for the purpose of the cause. See also S. N. Bannerjee v. Kuchwar Lime Stone Co. Ltd.. The order of Roxburgh, J. not being therefore an order on the opposite party No. 2 there is no question of his disobeying that order or committing contempt by any disobedience thereof. It may be that if the opposite party No. 2 is a tenant of opposite party No. 1, as he claims to be, the order may have been binding on him in certain circumstances under R. 35 of O. 21 of the Code of Civil Procedure, as was held in Yusuf v. Jyotish Chandra Banerji AIR1932Cal241 . But this would not make the Order an Order on the opposite party No. 2 for the order is binding on him only in the sense that it may have been executed by removing him from possession notwithstanding that he was no party to the proceeding in which the order was made. This therefore is not a case in which the opposite party No. 2 can be said to have committed contempt by disobeying an order of Court. The Calcutta Court thereafter posed a question, can it then be said that the opposite party No. 2 is guilty of contempt by obstructing the course of justice and setting the process of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff shall recover possession of premises and a writ has been issued to the Sheriff to deliver possession; if the officer has been apparently put in possession and the dependent chooses at some later time to change his mind and come back to the premises and by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him does not fully and honestly give up possession, but only colorable does so, the Judge applied to may and ought to find that the process of the court had not been obeyed, and that there had been contempt of court. In the present case the practical test was this; if the Sheriff's officer had known what was intended he certainly would not have left the premises. We are clearly of the opinion that in this case also, if the bailiff had suspected the intention of the opposite party No. 2, he would not have left when he actually did. The act of this opposite party, therefore, was as if he had in reality ousted the bailiff from possession. Prima facie it would therefore appear that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectors, etc. The petitioner was not a party to the suit. The Court on such facts held, These are the facts and one has only got to state them to see that there has been an error at every stage in these proceeding. There are proper ways in which a meeting of a company can be called either by the directors in accordance with the provisions of the Articles of Association or by the shareholders on requisition, also in accordance with the provisions of the Articles of Association. There is only other way of which I know, apart from any special Articles of Association, that a meeting of a company can be called and that is by a direction of a court to the Liquidator in winding up proceedings. The mere fact that certain persons who happened to be shareholders of the company met together at a private house and purported to pass resolution appointing directors and so on does not make that a meeting of the company. For a meeting to be a meeting of the Company it must be a meeting convened, in one of the ways to which I have referred and convened strictly in accordance with the Article of Association. The result is that the order of the 27 June, 1924 was wrong and there was no breach of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten legal opinion furnished by the 11th respondent concerning the validity and legal effect of the interim orders of injunction, the meeting was actually held and the resolution was passed. The Bench said (Paras 7 and 9): We have been at some pains to examine the law on this aspect of the flouting of an order of Court, which may be passed without territorial jurisdiction, for, it seems to as that this is of some importance and cases might arise frequently in actual judicial administration. It seems to be abundantly clear that the question whether a court has territorial jurisdiction or not, when one defendant indisputably resides within such jurisdiction and the other ex facie does not, is primarily a question of fact for the court to decide. For instance, it may depend on such a matter of evidence as the location of a particular milestone in relation to a house of business, or the house of a private individual. Even if such jurisdiction were altogether lacking, it could be easily cured under Section 20(b) of the Code of Civil Procedure, either by an order of special leave of court, or by the acquiescence of the concerned party. Where neither of these elements is available, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice or knowledge, he shall be guilty of civil contempt. He can still be found guilty of civil contempt if he is found to have aided and abetted the violation of the order of the Court. Even otherwise it is found that he obstructed or attempted to obstruct the implementation of the Court's injunction/direction, he may be found guilty of criminal contempt provided he had the notice or the knowledge of the order of the Court. It will be only after a determination of the nature of the disobedience that it will be possible for the Court to say whether the procedure applied to a civil contempt shall be applied to the contempt proceeding in his case or the procedure applied to a criminal contempt will be applied (o it. In the former case, the learned single Judge shall be competent to proceed. In the latter case, it shall be before a Division Bench and subject to such conditions as are envisaged under the Contempt of Courts Act, 1971. We have however no hesitation, in view of the principles of law noticed by us that this Court's power as the Court of Record will extend not only to the determination of the contempt but also the determination whether on the allegations brought befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, or the defendant has been guilty of sharp practices or unfair conduct, or has shown a desire to steal a march upon the plaintiff, or to evade the jurisdiction of the Court, the injunction will issue, notwithstanding the amount of inconvenience to the other party, and though the expense thereby caused to him will be out of proportion to any advantage the plaintiff may derive from it. 50. In one of the recent judgments in Sujit Pal v. Prabir Kumar Sun AIR1986Cal220 , a Division Bench of the Calcutta High Court has reiterated this view and stated that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2-A lays down a punitive measure for the purpose of compelling a party to comply with the order of injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in O. 39 R. 2A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an order of injunction. In such a case the Court is not powerless to grant relief to the aggrieved party in exercise of its inherent power. 51. A similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right which such a person has pleaded has been acquired by the violation of the order or had existed in him independently unaffected by the injunction. There can be no other law than one stated above that no person should be allowed to reap the benefits of a wrong done by him and thus whether he is a guilty of civil contempt or criminal contempt, the wrong doer can always be subjected to the inherent jurisdiction of the Court, which is not different for the civil or criminal contempt. Whether it is a civil concept or a criminal contempt, it is a contempt of Court and the disobedience of the order in any case is an obstruction in the administration of justice. It has been urged however that any order of restitution or restoration of the status quo ante by the order of the Court should be as a consequence of the commission of the breach having been established. Reference has been made to certain procedure adopted by Courts in England that where judgments or orders of the Court are disobeyed, they are enforced by writ of sequestration or an order of committal. This however should not detain us beyond stating that even if it is assumed that the Court shall make an order of restitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Commissioner with vest incidental powers. He illustrated his point by quoting from Sutherland Frank E. Harack Jr. Vol. 3 Necessary implications. Where a statute confers powers or duties in general terms, all powers and duties, incidental and necessary to make such legislation effective are included by implication. Thus it has been stated. An express statutory grant of power of the imposition of a definite duty carries with it by implication in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty. That which is clearly implied is as much a part of a law as that which is expressed. The behind the rule is lo be found in the fact that legislation is enacted to establish broad or general standards. Matters of minor details are frequently omitted from legislative enactments and if there could not be supplied by implication, the drafting of legislation would be an interminable process and the true intendment of the Legislature likely to be defeated. The rule whereby a statute, is by necessary implication extended, has been most frequently applied in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subject until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties . This view has been expressed in a large number of cases including Nemai Chand Jain v. Lila Jain AIR1968Cal405 , and Century Flour Mills Ltd. v. S. Subbiah AIR1975Mad270 , and in a case under Section 18 of the Hindu Adoption and Maintenance Act on the question of interim maintenance, a learned single Judge of this Court in the case of D. Udayar v. Raja Rani ammal AIR1973Mad369 has said (at p. 371 of AIR), When the jurisdiction of the Court is attracted by filing a suit the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial decision should not be pre-empted or circumstanced by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of Court means interference with the due administration of justice. The narrati Korren on of injunction above, the law as stated in Bhagat Singh v. Dewan Jagbir Sawhney AIR1941Cal670 and the statement of law in Sujit Pal v. Prabir Kumar Sun AIR1986Cal220 (supra) lend support to the view that any action under Order 39, Rule 2A of the Code of Civil Procedure of contempt can be postponed and the Court may issue a temporary mandatory injunction and order for restoration of status quo ante. The Supreme Court in State of Bihar v. Rani Sonabati Kumari [1961]1SCR728 has held in respect of a proceeding under Order 39, Rule 2(3) of the Code of Civil Procedure before amendment, similar to the amended provision of Order 39, Rule 2A that these provisions a punitive aspect as evident from the contemner being liable to be ordered to be detained In civil prison but they are in substance designed to effect the enforcement of or the execution of the order. Thus to effect the enforcement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the inherent power under Section 151 of the Code can be invoked and a mandatory injunction can be granted. The Courts have also to lake notice of the larger and higher interests of the administration of justice which is a public interest and this should receive the first priority in considering whether the Court's special or inherent power should be exercised or not. Grant of a temporary mandatory injunction will naturally thus require not only a strong Prima Facie Case To Ensure That the Court's injunction or direction should first be implemented or until it is implemented, status quo ante is maintained, it shall also bring into consideration such rules on balance of convenience which are relevant quo rights of the parties in dispute and the public interest of the administration of justice. 56-57. Adverting to the facts of this case, we knew that the main relief in the suit to declare that the notice dated 26-5-1990 issued by the first and second defendants on the basis of the requisition notices convening a Special General Meeting of the Association on 15-6-1990 is illegal, null and void cannot be said to have become infructuous merely because the Court instead of gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association to mean and include the Representatives deputed by the Members in accordance with the Rules and the persons holding Indian citizenship and who are Members of the International Olympic Committee. Article III names the members as National Sports Federations/Associations, whose sport is included in the Olympic/Asian or Common Wealth Games, National Sports Federations/ Associations, which represent widely played Indian sports recognised by the I.O. A., Olympic Associations of State, as well as Centrally Administered Union Territories, Service Sports Control Board and the Indian Citizens who are Members of the International Olympic Committee. As to who may be eligible to participate in the general meeting and special meeting of the Association and who may be eligible to vote or who qualify for being elected to the Executive Council, etc. may be gathered from the provisions which say that at the annual general meeting and special general meeting, the members shall be entitled to send their representatives and will depend mainly upon the Sports Federations and the Associations sending their representatives as they are such members under the Rules and Regulations of the Associa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Courts Act, 1971. Incase it is found however that the order of the Court had not been addressed to Sri Shukla as a representative of one of the members of the Association, nonetheless it is found that he had the knowledge of the order/direction of the Court, and he knowingly and deliberately constructed the implementation of the order/direction of the Court, he may be found guilty of criminal contempt; the Court shall not be powerless even in such a case and may direct Sri Shukla or any other person who may be found to have stood in the way of implementation of the order/direction of the Court, to remove the obstruction and restore Status Quo Ante, besides any effective action that may be taken in the criminal contempt. The Court's power under its special jurisdiction of inherent jurisdiction to make such an order even in the case of a criminal contempt cannot be denied. It shall however be necessary in the case of a criminal contempt that the procedure prescribed under the Contempt of Courts Act, 1971 is followed and the criminal contempt will have to be dealt with by a Division Bench and not by the learned single Judge that is to say the trial Court. Learned trial Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, however, has submitted that any determination of these questions at this appellate stage will cause serious prejudice to the interests of the appellant as he may be deprived of a right of appeal under the Letters Patent against any finding on the question above by the learned trial Judge and in case it is found to be a criminal contempt of his right of being tried by a Division Bench subject to the statutory appeal before the Supreme Court. 60. We have given cur anxious consideration to the matter. We are of the opinion that it will be fair and equitable to remit back the case to the trial Court to consider the case in the light of the observations with respect to the law on the subject by us above. But we are not able to close our eyes to the serious injury that the sports in the country is likely to suffer on account of the remand and delay in determination of the matter in full even for the purpose of granting an immediate relief by an order of mandatory injunction. Since we have found that the Court can grant temporary mandatory injunction pending a contempt petition or independent of it, we have no hesitation or doubt in holding that the Court, pending a decision on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be inappropriate therefore to restrain Sri Shukla until the entire matter is finally decided as observed by us earlier. But at the same time, it shall be wholly inappropriate to allow Sri Shukla to function as the President or those nominated by him to constitute the Executive Council in view of the seriousness of the allegations made on behalf of the plaintiffs because it is clearly the case of Sri Shukla that he was elected as the President of the Association as a result of the no-confidence resolution, which if at all adopted, was not adopted in accordance with the directions of this Court. 61. For this reason and the reason of the interest of the sports as well as the interest of administration of justice, two public interests, we are inclined to order that until the final adjudication of the issue whether any mandatory injunction be issued for restoration of status quo ante or not, the administration of the Association is put in the hands of a person of eminence, independence and who takes interest in sports. 62. In the result, the appeal is allowed. The order of the learned trial Judge dated 11-7-1990 made in Sub-Application No. 230 of 1990 is set aside. The case is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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