Man Mohan Singh Gujral, J. - (1.) THIS is a petition under Section 3 of the Contempt of Courts Act praying that the Respondents be punished for having disobeyed an order of this Court, dated 8th November, 1968.
(2.) THE facts giving rise to this application are that the Petitioner had filed Civil Writ No. 119 of 1967 praying for a writ of certiorari, mandamus or any other writ, order or direction to be issued to the Respondents to allot a large sized plot in Sector 17 on the Madhya Marg, Chandigarh, to the Petitioner. That petition finally came up for hearing before a Division Bench and was dismissed on 23rd August, 1968. Subsequently, the Petitioner made an application for leave to appeal to the Supreme Court which came up for final hearing on 31st October, 1968. On this date the leave was granted. The Petitioner had also made an application for stay of the auction of the plots which was to be held on 10th November, 1968. The order on that application was also passed on the same day and was a part of the order allowing leave to appeal to the Supreme Court. The relevant portion of the order reads as under: Mr. R. N. Mittal the learned Counsel for the Petitioner pointed out that some plots have recently been carved out in the same vicinity for which auction is going to be held on the 10th November, 1968, and in his application under Order 45, Rule 13 and Section 151 of the Code of Civil Procedure, prayed for the stay of auction of one plot out of these. He argued that if this stay was not granted, his leave to the Supreme Court would become infructuous. To enable the Petitioner to obtain the appropriate stay from the Supreme Court, we stay for two months the auction of one plot along the Madhya Marg out of the plots reserved for shops for sanitary goods. Though this order was passed on 8th November, 1968, directing that one plot along the Madhya Marg be reserved for the Petitioner but no plot was reserved and auction of all the plots was held on 10th November, 1968. The Petitioner filed this petition for action being taken under Section 3, of the Contempt of Courts Act. It may be stated at the outset that out of the four Respondents in this petition three Respondents, namely, Shri Damodar Dass, Shri Sham Lal Verma and Shri Gurdip Singh were not parties either to the Civil writ or to the application for leave to appeal to the Supreme Court. This being the position, they cannot be held liable for any disobedience of the order of this Court regarding the holding of the auction as no material has been placed on the file to show that the order was received by these Respondents on or before 10th November. 1968.
(3.) WE are then only left with the case of Shri Hoshiar Singh who was the Estate Officer and was also party to the Civil Writ and the application for leave to appeal to the Supreme Court. The case of this Respondent is that the order staying auction of plots did not come to his notice as it was issued from the office of the High Court on 13th November, 1968, and as he was not aware of the order earlier the auction regarding the plot could not be stayed. On behalf of the Petitioner it is mainly contended that as the order was passed in open Court in the presence of the counsel for the Respondent he would be presumed to have known the order and to have contumaciously disobeyed this order. Support for this argument is sought from Ram Prasad Singh v. The Benares Bank : (1920) I.L.R. 42 All. 98 In this case it was ordered by a Single Judge of the Allahabad High Court that Respondent Ram Prasad Singh was not to alienate any of the properties which had been attached by the Patna High Court prior to 1918. Inspite of this Ram Prasad Singh executed two sale deeds, after the passing of the order, on 3rd and 4th January, 1919. The injunction had been passed in the presence of both parties duly represented by counsel and a formal injunction was also issued for service on Ram Prasad Singh personally. Personal service on Ram Prasad Singh could not be effected as the process -server was unable to find him at his ordinary place of residence. Even if personal service was not effected it was held that Ram Parsad was guilty of contempt and the following observations were made: The circumstances under which the attempt to effect personal service failed are themselves suspicious, and we must agree with the learned Judge of this Court that it is not possible really to believe that the prohibitory order, passed in open court, in the presence of a responsible legal adviser, was never communicated to the person principally concerned. Apart from the merits, we cannot hold the Appellant absolved from all liability merely because of the failure of the attempt to effect personal service. The prohibitory order was passed in open court; it may not technically have the effect of a decree, but it was passed in the presence of both parties duly appearing before the court and it takes effect from the date of its delivery just as much as a permanent injunction embodied in a judgment and incorporated in a decree of the Court. A perusal of these observations shows that the order was made not only in the presence of the counsel but also in the presence of the parties. In an earlier portion of the judgment it was stated that the order was passed in the presence of both the parties duly represented by counsel. From the above observation it would appear that when an order is passed in open Court in the presence of the parties the fact that the order could not be served personally would be of no consequence. As in the present case it is neither the allegation nor is there any material to show that Shri Hoshiar Singh Respondent was present in Court when the order was passed the observations made in the above case are therefore, not helpful to the Petitioner.;