Satyabrata Biswas and Ors v. Kalyan Kumar Kisku and Ors.

MOHAN, J. Leave. granted. 1. The short facts leading to this appeal are under: D The premises in dispute is a Church property situate at No. 16 Sudder Street, Calcutta including the out-house. The first respondent, Kalyan Kumar Kisku, filed a Suit bearing No. 328 of 1988 before the High Court of Calcutta, . for d.eclaration of title, in his capacity as Secretary of Durgapur Diocese. It was claimed in the said suit that the Durgapur E Diocese col1Sisted · of three rooms and inter alia ·it was claimed that the possession of Durgapur Diocese may not be disturbed. The . suit was directed against the Church of North India and the Durgapur Diocese. The prayers in the said suit are as follows: "(a) A decree be passed declaring that the premises being No. 16, Sudder Street, Calcutta-16 including the outhouse and garages to which the Durgapur Diocese is in possession and/or occupation, belong to the said Dioces~ of Durgapur ti;> the exclusion of Diocese of Calcutta and the Durgapur Diocese alone has the executive right and title to use an enjoy the same; (b) A decree be passed declaring that until the properties of the Durgapur Diocese are demarcated and/or transferred and/or handed over to the Diocese of Durgapur in terms of the resolution of the CNI Synod from the Calcutta Diocese, the power of attorney executed by the Trustees of the Calcutta Diocese Trust Association -- _Ai'' )----- )l ' S. BISWAS v. KAL YAN KUMAR [MOHAN; J.] 417 in favour of the Durgapur Diocese be restored and the Durgapur A Diocese will be legally entitled to collect all rents, issues and profits of the. assets belonging to the said Diocese of Durgapur; ( c) A decree be passed declaring that the CNI Synod Office . bearers have no authority to extend the date of holding t,he Epis­ copal Election. and in the event of any delay in holding such B election the said CNI Synod Office bearers have no right anct/or authority to appoint Moderator 'commis~ary and/or Episcopal Commissary and the Executive Committee as well as the Dioce,san Councii of Durgapur cannot be dissolv,ed and/or superseded arid/or disturbed and the said council as well as Executive Com­ mittee would be allowed to function to its full tenure, i.e. 8.9'.1989; (d) An order be passed granting leave under Order (1) R.ule 8 of the Civil Procedure Code; (e) Permanent injunction be granted restraining the defendants D from interfering with the functions of the Diocesan Council as well as the Executive Committee of the Durgapur Diocese till the full tenure are over, i.e. 8.9.1989; (t) Permanent injunction be granted restraining the defendants and E their servants and agents from interfering with the peaceful pos­ session and use and occupation of the premises being No. 16, Sudder Street, Calcutta-16 including the outhouse and garages by the Durgapur Diocese; (g) Permanent injunction be granted restraining the defendants F and their servants and agents from collecting rent, issues and/or profits of the properties belonging to the Durgapur Diocese in terms of the CNI Synod resolution and by operation of the power of attorney executed and/or to be executed by the Calcutta Diocesan Trust Association until the properties belonging to the G Diocese of Durgapur are handed over and/or transferred to the Durgapur Diocese by the Calcutta Diocesan Trust Association (Private). (h) Permanent injunction be granted restraining the defendants and particularly the CNI Synod Office bearers in the matter of H 418 SUPREME COURT REPORTS [1994) 1 S.C.R. A Episcopal Election and further restraining the defendants from appointing Moderatory Commissionary and/or Episcopal Commis­ sionary over the Durgapur Diocese; (i) Ad-interim Injunction; B G) Receiver; (k) Costs; (I) Such other relief or reliefs." C 2. Pending this suit an interlocutory application was filed and an order dated 20th May, 1988 was passed directing the maintenance of status quo in respect of running of Durgapur Diocese till further orders. 3. On 1st June, 1988 this order was modified stating that the order dated 20th May, 1988 will not stand in the way of retirement of the Bishop D which was due on 4th June, 1988 or the appointment of the Commissary by the Moderator of the Church of Nottingham. The defendants were directed to appoint a new Bishop within 5 weeks from the date of the said order. We may at this juncture point out that these two orders are not material for our purposes. However, what is important is the order dated 15th September, 1988. That order is extracted in full: "This application was stand adjourned for one week from date. Affidavit-in-opposition and Affidavit-in-reply to be filed in the meantime. So far as the fixed properties concerned there would be an order of status-quo as of to-day till the disposal of the application. There would also be an order not to dissolve the committee in the meantime. It is recorded that Mr. Bishop Ghose has already taken over the charge. G All parties are to act on a signed copy of the minutes of this order." 4jFrom the above it is seen that in relation to the properties an order of statu quo as of today, that is, 15th September, 1988, had been passed by the court. It is complained that there is a violation of these three orders by the six respondents, Satyabrata Biswas, Rev. Bilash Chandra Das, Salil H Biswas, Sushi! Sharma, Rt. Rev. Dinesh Chandra Gorai and Rt. Rev. John ·,,, S.BISWAS v. KALYANKUMAR[MOHAN,J.) 419 E. Ghosh. The contempt was for: (1) putting a padlock to the main A entrance of the premises on 3.7.1993; (2) disconnecting water supply, (3) obstructing sewerage line; and ( 4) preventing the appellants from getting the rooms repaired. 5. By an order elated 20th of July, 1993 the court directed to make an inventory in the rooms lying in the first floor of the suit premises and B also to find if there be any padlock. The Special Officer was appointed under that order. He was permitted to break open the padlock and put his own padlock after the inventory was made. 6. On 4.8.1993 the Special Officer was directed to continue the C inquiry and complete the same as per order dated 26th July, 1993. The keys to the main door were to remain with the officer-in-charge Taltola Police Station. 7. On 16.8.1993 the said order 26th July, 1993 was modified to the effect that the Receiver would make the inventory of the articles in terms D of the earlier order, but would not put the main entrance gate under lock and key. A modification to the said order dated 16.8.1993 was sought to the effect that the Special Officer should allow representatives of each of the parties and should not allow anybody from the occupier at the time of making inventory. This modification was refused. Until this, Sumani ...., ~ Builders (respondent No. 2 herein) was not a party to any of the proceed- ings nor did it movt! an application to implead itself. Yet an oral prayer made by Somani Builders was ailowed on 20.8.1993 inter alia in the follow- ing terms: "It is submitted by Mr. Ghosh that even after the inveatory is F complete the Receiver has put padlock. Mr. Bhattacharjee, Learned Receiver is present. It is submitted by the Receiver that the inventory is complete. Receiver is directed to remove the padlock, if any, put by him by tomorrow." 8. Aggrieved by these proceedings an appeal came to be preferred G by the appellants. It was contended by the learned counsel appearing on behalf of the appellants that the said A.K. Ghosh was neither a tenant nor did he have the competence or authority to let out any portion of the premises in question. Therefore, the said A.K. Ghosh did not have authority to be there as a tenant. It was further urged that the creation of H 0 420 SUPREME COURT REPORTS [1994)1 S.C.R. A tenancy was an after thought and no order shoul~ have been passed in favour of the said. Somani Builders who had intervened in this proceeding. On this plea the court inter alia observed as follows: ;'Whether -or not the Somani Builders Pvt. Ltd. is -a lawful sub­ t6nant cannot be decided in this proceeding. It is for th~ landlord to initiate appropri;tte proceedings for their ejedment. But at this stage, the -question is whether Somani Build.ers Pvt. Ud. is in occupation or. not. on the facts and in the circumstances of this case, we are prima f acie satisfied that the company was in occupa­ tion of the disputed premises. Even a trespasser can be evicted only by due process oflaw." 9. Therefore it proceeded to appoint Joint Receivers with a direction to obtain the keys from the Officer-in-Charge Taltala Police Station. They would make an inventory of the rooms stated to have been occupied by Somani Builders l>yt. Lt:J;i. opening _the padlock which was fixed by the D Special Officer. After making the inventory the Joint Receivers were directed to take possession of the said premises. They were also directed to allow ~omani Builders to occupy the said premises for the purpose of carrying on business in the usual course. The occupation charges would be paid by the Somani Builders to the Joint Receivers without prejudice to E the rights and contentions of the parties. 10. Under these circumstances the present civil appeal by special leave has come to be preferred. 11. It is urged on behalf of the appellants that in view of status quo order dated 15th September, 1982 regarding the fixed property in posses­ sion of the Durgapur Diocese no tenancy or sub-tenancy rights could be created. It was also urged that the said Somani Builders became sub-tenant under an agreement dated 10th May, 1993. Such a sub-tenancy cannot be valid in view of the status quo order. It is somewhat strange that Somani G Builders should made an oral application before the learned Single Judge. On the basis of the oral ·application, the order came to be passed in favour of the Somani Builders directing the Special Officer to remove the padlock. As to what was the nature of the prayer, that too by a person who was not a party to any one -of these proceedings, is not known. Therefore, the H removal of padlock on its instance, as directed by the learned Single Judge, .... S. BISWAS v. KAL YAN KUMAR rMoHAN, J.] 421 was· not warranted. As though to add insult to injury when the appellant A was complaining about this order, the Division Bench goes one step further and directs possession be given to Somani Builders. This direction would amount to putting a premium on the illegality committed by the former alleged tenant AK. Ghosh. 12. First of all, he had no authority to grant a tenancy. Even other­ wise, since status quo order had been passed by the Court on 15th Septem- ber, 1988 the creation of sub-tenancy under the agreement dated 10.5.1993 would not confer Somani Builders with any right whatever. In contempt ...,.-- jurisdiction an utter stranger to the proceedings cannot be put in posses­ sion, while the sole question was whether the parties had violated the order C dated 15 September, 1988. Therefore, the order is liable to be set aside. 13. Learned counsel for respondent No. 1 Kalyan Kumar Kisku submits: "The appellants herein are fully aware that they cannot succeed in D the suit filed by the respondent No. 1 and, therefore, they have taken a short-cut method to obtain their objective by adopting illegal and unfair means, thereby dis-possessing all occupants of the first floor without sanction of law. It was held by this Hon'blc Court in the case of Bharat Coking Coal Ltd. v. State of Bihar, reported in [1987] Supp. S.C.C. 394 that according to the ordinary legal connotation, the term "status quo" implies the existing state of things at any given point of time. It is submitted that in view of the definition of 'status quo' as aforesaid, F the Durgapur Diocese was entitled to continue its existing activities as on 20.5.1988 regarding running of its activities induding the functioning of the Executive Committee of the Diocesan Council. This Court as a matter of practice does not interfere in the interlocutory orders under Article 136 of the Constitution of India. G Reliance is placed on two decisions: (i) State of Andhra Pradesh v. T Nandagopal, [1986] Supp. S.C.C. 568, (ii) State of Maharashtra v. Dadamya, [1972] 3 S.C.C. 85." 14. Learned counsel for the respondent-tenant, AK. Ghosh, would H 422 SUPREME COURT REPORTS [1994) 1 S.C.R. A urge that he was the tenant of the premises from 1988 onwards. He had been specifically authorised to create a sub-tenancy by a resolution of Durgapur Diocese dated 11.3.1988 to grant the sub-lease. The order of status quo was against the parties who had been impleaded in the inter­ locutory application. B 15. Mr. P. Chidambaram, learned counsel for.Somani Builders woUld submit that the application for contempt was directed against the respon­ dents therein. Where, therefore, they were directed to maintain the status quo, there was no legal disability on the part of the tenant, AK. Ghosh to sub-let the property. Hence, if the sub-tenant had been lawfully inducted C he can lawfully remain in possession of the premises as the same was directed to be handed over to the Joint Receivers by the iearned Single Judge. It become necessary on the part of the Somani Builders to mention · before the learned Single Judge because its possession came to be dis­ trubed by the Special Officer fixing the padlock. Till then the question of D impleading itself did not arise. Only when it was affected oral mention had to be made. The appellate court found that there was disturbance of possession which came to be restored to Somani Builders. Inasmuch as the inventory disclosed its properties were found in the premises. In the written submissions, it is further urged: ''ACTUS CURIAE NEMINEM GRAVABIT meaning thereby an act of Court shall prejudice no man:- (a) This principle of law has been applied by the English Courts as well as by the Hon'ble Supreme Court of India. See Alexander Rodger, Charles Camie and Richard James Gilman v. The Com­ potoir D'Escompte De Paris and The Chartered Bank of India, Australia, and China, [1871) Law Report Vol. III Privy Council page 465, Jagat Dhish Bhargava v. Jawahar Lal Bhargave, A.LR. (1961) S.C. 832 and Jang Singh v. Brij Lal, A.I.R. (1966) S.C. 1631; (b) In A.LR. (1961) S.C.C. 832 (supra), the Hon'ble Supreme Court has stated "the litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties." S. BISWAS v. KAL YAN KUMAR [MOHAN, J.) 423 IN A CONTEMPT PROCEEDINGS, WHICH WAS NOT EVEN A INITIATED AGAINST THE RESPONDENT NO. 2 OR ANY OF ITS OFFICERS, THE SAID RESPONDENT WAS DISPOS­ SESSED:- (a) The Court has no jurisdiction to direct dispossession of any B one in a contempt proceedings. Neither the Contempt of Courts Act, 1971 nor Article 215 authorises the Court to pass any order of dispossession in a contempt proceedings; (b) In any e~ent, in a contempt proceedings, no order can be passed against a person, who is not a party thereto and without C giving any notice to him and affording an opportunity of hearing to such person. (See Section 14 of the Contempt of Court Act, 1971); (c) The said contempt petition was filed by the respondent No. 1 D against some of the special leave petitioners contending that the special leave petitioners have violated the order of Court. ( d) Therefore, the Court had no jurisdiction to pass an order of dispossession against the respondent No. 2 in such proceedings. NO ORDER PASSED IN SUIT CAN BIND A PERSON, WHO WAS NOT A PARTY THERETO: (a) The tenant Ashok Kumar Ghosh and his sub-tenant Somani Builders Private Limited were not parties to the suit instituted in F the High Court of Calcutta. Therefore, none of the orders passed in the said suit was ever or is at all binding on any of them; (b) The tenant was inducted prior to the institution of the suit. The suit was instituted on 29th April, 1988 and prior thereto, the G tenant was inducted; ( c) On 20th May, 1988 the tenant was authorised to grant sub­ tenancy; ( d) The suit was for a declaration that premises No. 16, Sudder H 424 Street, Calcutta including its out-house and garage belongs to the Diocese of Durgapur and Diocese of Durgapur has alone exclusive right, title and interest to use the same: (e) On 20.5.1988, the PARTIES to the suit were directed to maintain status quo in respect of RUNNING of Diocese of Dur­ gapur till further order; (f) On 15.9.1988, the Calcutta High Court passed an order of status quo as of THE SAID DATE in regard to .. the fixed properties of Diocese of Durgapur; (g) The said orders were not, nor can claim to be binding on the tenant Ashok Kumar Ghosh; (h) In any event, the status quo order passed on 15.9.1988 which specifically mentioned that the same should be maintained as of 15.9.1988 cannot curtail the right of th~ tenant, which has been granted to him on 20.5.1988; (i) A status quo order with a specificatic)n that the same should be as of that date under no stretch of imagination can be stretched or given effect to retrospectively; G) Thus, the tenant's right to grant sub-tenancy accorded to him on 20.5.1988 was not nor could be affected by the said order of status quo dated 15.9.1988." F Therefore, no exception would be takeD; to the impugned order. 16. In order to appreciate the respe~tive contentions it is necessary to state that violation of the following three qrders were complained of: (1) 20th May, 1988 (2) 1st June, 1988 (3) 15th September, 1988 17. As stated above, we are not concerned with the first of the two H orders .. since they do not relate to the property. It is the violation of the S.BISWAS v. KALYANKUMAR[MOHAN,J.) 425 order dated 15th S6ptember, 1988 (already extracted) which gives rise to A contempt. The contempt was chiefly about the respondents putting padlok on the entrance of the suit premises on 3rd July, 1993, disconnecting water supply for the first floor and blocking sewerage etc. Therefore, all that was required to decide was whether the respondents therein had maintained the status quo or not. If there was any kind of disobedience, that would B amount to contempt. Thus, it is a simple case of contempt. Unfortunately, it has taken a devious course and peculiar orders have been passed both by the learned Single Judge as well as the Division Bench. The learned Single Judge directed by order dated 26th July, 1993 the Special Officer to make an inventory of the state of affairs. Where was the need to make the C inventory to things is difficult to understand having regard to the nature of violation alleged in the petition for contempt. The Special Officer had put his own padlock after inventory had been taken. Whether it was the main entrance or not was an ancillary issue. It is at this stage that Somani Builders entered the scene. It made an oral application for the removal of a padlock. What was the nature of prayer is not discernible anywhere. Even D the order of the learned Judge does not make mention about this prayer. It has to be carefully noted that Somani Builders based its claim on the strength of the agreement dated 10th May, 1993, claiming a right of sub-tenancy from A.K. Ghosh. 18. First of all, whether A.K. Ghosh was a tenant is itself in dispute. 19. Secondly, whether A.K. Ghosh had a right to create a sub­ tenancy is again in dispute. 20. Thirdly, more than above all this, when the right of sub-tenancy was sought to be founded on an agreement dated 10th May, 1993, it should have occurred to the learned Single Judge that such a creation of sub­ tenancy was clearly violative of the order of status quo passed as early as 15th of September, 1988. It is extremely unfortunate that the learned Judge had not even cared to bestow thought and entertained an oral application G at the instance of a person who had nothing to do till then with the application for contempt. He had not even taken out an application to implead himself as a party. If mere oral mention could be enough to direct a Special Officer to remove the padlock, one has to put aside the law of procedure altogether and render justice as the court conceives, conferring H ·-r 426 SUPREME COURT REPORTS (1994) 1 S.C.R. A benedictions on parties who cannot have any legal basis to found their claim. --r· 21. Still worse was to follow. When the ~ppellants before us com­ plained of this direction by the learned Single Judge to remove the padlock, the Division Bench followed a novel proceoi.Jre. We have already extracted its finding in relation to the validity of sub-tenancy. Having held in no uncertain terms whether or not the Somani Builders is lawfully a sub­ tenant, cannot be decided in the proceeding, it should have thrown out the plea of Somani Builders. Why then the Joint Receivers were directed to allow Somani Builders to occupy the premises for the purpose of carrying on business passes our comprehension? The status quo is not a status quo as on the date of inventory but the status quo as of .15.9.1988. The order of that date states unequivocally "status quo as of today." That could only mean 15th September, 1988 and there cannot be the state of affairs after five years of that order. 22. In Wharton's Law Lexicon 14th Edition at page 951Status Quo has been defined as meaning: "The existing state of things at any given date; e.g., Status quo ante bellum, the state of things before the war." 23. According to Black's Law Dictionary 6th Edition the relevant passage occurs:- "The existing state of things at any given date. Status quo ante bellum the state of things before the. law. "Status quo" to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy." 24. This Court in Bharat Coking Coal Ltd. v. State of Bihar, (1987) G Supp. S.C.C. Page 394 at 398, stated thu.-.: "According to the ordinary legal connotation, the term 'status quo' implies the existing state of things at any given point of time." 25. When the removal of padlock was complained of in the appeal H filed by the appellants herein, strangely delivery of possession was ordered. I ~- S. BISWAS v. KAL YAN KUMAR [MOHAN, J.] 427 The said . order clearly betrays lack of understanding as to the scope of A contempt jurisdiction and proceeds upon a total misappreciation of the facts. We are obliged to remark that both the learned Single Judge as well as the Division Bench had· not kept themselves within the precincts of contempt jurisdiction. Instead peculiar orders have come to be passed totally alien to the issue and disregardful of the facts. The orders of the B learned Single Judge and that of the Division Bench cannot stand even a moment's scrutiny. Therefore, it is idle to contend that no interference is warranted under Article 136. 26. Apart from the fact whether AK. Ghosh had a legal authority to sub-lease or not at was not open to him to grant a sub-lease in violation of C the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such a sub-lease under the terms of the status quo order. It has the effect of violating the preser­ vation of status of the property. This will all the more be so when this was done without the leave of the court to disturb the state of things as they D then stood. It would amount to violation of the order. The principle contained in the maxim: 'Actus Curiae Neminem Gravabit' has no applica- tion at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, b~cause the state of affairs in relation to property as on 15.9.1988 is what the E Court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating· originally. If the right of sub-tenancy is recognised, how is status qu.o as of 15.9.1988 maintained? Hence, the grant of sub-lease is F contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal. 27. We hereby set aside the order of the Division Bench dated 5.10.1993 and the orders of the learned Single Judge dated 20.7.1993 G (except that part relating to appointment of Special Officer}, 4.8.1993, 6.8.1993, 11.8.1993, 16.8.1993 and 20.8.1993 as well). 28. The parties are relegated to the position as on 15.9.1988. Somani Builders are hereby directed to deliver vacant possession to the Special H 428 SUPREME COURT REPORTS (1994] 1 S.C.R. A Officer within one month from today. The learned Single Judge is directed to dispose of the application for contempt in its proper perspective con­ firming himself to contempt jurisdiction. The Special Officer shall continue to be in possession till the disposal of contempt proceedings. This direction becomes necessary in view of the scramble for possession. B 29. For the foregoing reasons, the Civil Appeal is allowed with costs which shall be borne equally by respondents 1 and 2 in this appeal. G.N. Appeal allowed.