Biswas Vs. Kalyan Kumar Kisku  INSC 67 (27 January 1994)
S. (J) Mohan, S. (J) Anand, A.S. (J)
1994 AIR 1837 1994 SCR (1) 413 1994 SCC (2) 266 JT 1994 (1) 325 1994 SCALE
Judgment of the Court was delivered by MOHAN, J.-Leave granted.
short facts leading to this appeal are under. The premises in dispute is a
Church property situate at No. 16 Sudder Street, Calcutta including the outhouse. The first
respondent, Kalyan Kumar Kisku, filed a suit bearing No. 328 of 1988 before the
High Court of Calcutta, for declaration of title, in his capacity as Secretary
of Durgapur Diocese.
claimed in the said suit that the Durgapur Diocese consisted of three rooms and
inter alia it was claimed that the possession of Durgapur Diocese may not be
suit was directed against the Church of North India and the Durgapur Diocese.
prayers in the said suit are as follows:
A decree be passed declaring that the premises being No. 16, Sudder Street,
Calcutta 16 including the outhouse and garages of which the Durgapur Diocese is
in possession and/or occupation, belong to the said Diocese of Durgapur to the
exclusion of Diocese of Calcutta and the Durgapur Diocese alone has the
executive right and title to use and enjoy the same;
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 in favour of the Durgapur Diocese be restored and the Durgapur
Diocese will be legally entitled to collect all rents, issues and profits of
the assets belonging to the said Diocese of Durgapur;
decree be passed declaring that the CNI Synod office bearers have no authority
to extend the date of holding the Episcopal Election and in the event of any
delay in holding such election the said CNI Synod office bearers have no right
and/or authority to appoint Moderator Commissary and/or Episcopal Commissary
and the Executive Committee as well as the Diocesan Council of Durgapur cannot
be dissolved and/or superseded and/or disturbed and the said council as well as
Executive Committee would be allowed to function to its full tenure, i.e.,
September 8, 1989;
order be passed granting leave under Order (1) Rule 8 of the Civil Procedure
Permanent injunction be granted restraining the defendants from interfering
with the functions of the Diocesan Council as well as the Executive Committee
of the Durgapur Diocese till the full tenure is over, i.e. September 8, 1989;
Permanent injunction be granted restraining the defendants and their servants
and agents from interfering with the peaceful possession and use and occupation
of the premises being No. 16, Sudder Street, Calcutta 16 including the outhouse
and garages by the Durgapur Diocese;
Permanent injunction be granted restraining the defendants 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
Diocese of Durgapur are handed over and/or transferred to the Durgapur Diocese
by the Calcutta Diocesan Trust Association (Private).
Permanent injunction be granted restraining the defendants and particularly the
CNI Synod office bearers in the matter of Episcopal Election and further
restraining the defendants from appointing Moderator Commissary and/or
Episcopal Commissary over the Durgapur Diocese;
other relief or reliefs." Pending this suit an interlocutory application
was filed and an order dated May 20, 1988
was passed directing the maintenance of status quo in respect of running of Durgapur
Diocese till further orders.
3. On June 1, 1988 this order was modified stating
that the order dated May
20, 1988 will not
stand in the way of retirement of the Bishop which was due on June 4, 1988 or the appointment of the
Commissary by the Moderator of the Church of Nottingham. The defendants were directed to
270 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 September 15, 1988. That order is extracted in full:
application will 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 are concerned there would be an order of status quo as of today till
the disposal of the application. There would also be an order not to dissolve
the committee in the meantime.
recorded that Mr Bishop Ghose has already taken over the charge.
parties are to act on a signed copy of the minutes of this order."
the above it is seen that in relation to the properties an order of statusquo
as of today, (that is, September 15, 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 Biswas, Sushil
Sharma, Rt. Rev. Dinesh Chandra Gorai and Rt. Rev. John E. Ghosh. The contempt
a padlock to the main entrance of the premises on July 3, 1993;
sewerage line; and
the appellants from getting the rooms repaired.
an order dated July 20, 1993 the court directed to make an inventory of the
rooms lying on the first floor of the suit premises and also to find if there
was any padlock.
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.
August 4, 1993 the Special Officer was directed to continue the inquiry and
complete the same as per order dated July 26, 1993. The keys to the main door
were to remain with the officer-in-charge, Taltola Police Station.
August 16, 1993 the said order dated July 26, 1993 was modified to the effect
that the Receiver would make the inventory of the articles in terms of the
earlier order, but would not put the main entrance gate under lock and key. A
modification to the said order dated August 16, 1993 was sought to the effect
that the Special Officer should allow representatives of each of the parties
and should not allow anybody from among the occupiers at the time of making
inventory. This modification was refused. Until this, Somani Builders
(Respondent 2 herein) was not a party to any of the proceedings nor did it move
an application to implead itself. Yet an oral prayer made by Somani Builders
was allowed on August 20, 1993 inter alia in the following terms:
is submitted by Mr Ghosh that even after the inventory is complete the Receiver
has put padlock. Mr Bhattacharjee, learned Receiver is present. It is submitted
by the Receiver that the inventory is 271 complete. Receiver is directed to
remove the padlock, if any, put by him by tomorrow."
Aggrieved by these proceedings an appeal came to be preferred 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 tenancy was an afterthought and no order
should 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
or not the Somani Builders Pvt. Ltd. is a lawful sub-tenant cannot be decided
in this proceeding. It is for the landlord to initiate appropriate proceedings
for their ejectment. But at this stage, the question is whether Somani Builders
Pvt. Ltd. is in occupation or not. On the facts and in the circumstances of
this case, we are prima facie satisfied that the company was i n occupation of
the disputed premises. Even a trespasser can be evicted only by due process of
Thereafter it proceeded to appoint Joint Receivers with a direction to obtain
the keys from the officer-in-charge Taltola Police Station. They would make an
inventory of the rooms stated to have been occupied by Somani Builders Pvt.
Ltd. opening the padlock which was fixed by the Special Officer. After making
the inventory the Joint Receivers were directed to take possession of the said
premises. They were also directed to allow Somani Builders to occupy the said
premises for the purpose of carrying on business in the usual course. The
occupation charges would be paid by Somani Builders to the Joint Receivers
without prejudice to the rights and contentions of the parties.
these circumstances the present civil appeal by special leave has come to be
preferred. It is urged on behalf of the appellants that in view of the statuts
quo order dated September
15, 1988 regarding the
fixed property in possession 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 May 10, 1993. Such a subtenancy cannot be valid
in view of the status quo order. It is somewhat strange that Somani Builders
should make an oral application before the learned Single Judge. On the basis
of that oral application, the order came to be passed in favour of 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 anyone of
these proceedings, is not known. Therefore, the removal of padlock at its
instance, as directed by the learned Single Judge, was not warranted. As though
to add insult to injury when the appellant was complaining about this order,
the Division Bench went one step further and directed that possession be given
to Somani Builders. This 272 direction would amount to putting a premium on the
illegality committed by the former alleged tenant A.K. Ghosh.
of all, he had no authority to grant a tenancy.
otherwise, since status quo order had been passed by the Court on September 15, 1988 the creation of sub-tenancy under
the agreement dated May
10, 1993 would not
confer Somani Builders with any right whatever. In contempt Jurisdiction an
utter stranger to the proceedings cannot be put in possession, while the sole
question was whether the parties had violated the order dated September 15, 1988.
the order is liable to be set aside.
Learned counsel for Respondent 1, Kalyan Kumar Kisku submits:
appellants herein are fully aware that they cannot succeed in the suit filed by
Respondent 1 and, therefore, they have taken a short-cut method to obtain their
objective by adopting illegal and unfair means, thereby dispossessing all
occupants of the first floor without sanction of law.
held by this Hon'ble Court in the case of Bharat Coking Coal Ltd. v. State of
Bihar' 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, the Durgapur
Diocese was entitled to continue its existing activities as on May 20, 1988
regarding running of its activities including the functioning of the Executive
Committee of the Diocesan Council.
Court as a matter of practice does not interfere in the interlocutory orders
under Article 136 of the Constitution of India.
is placed on two decisions:
State of A.P. v. T. Aandagopal2,
State of Maharashtra v. Dadamiya Babumiya Sheikh3."
Learned counsel for the respondent-tenant, A.K. Ghosh, would 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 March 11, 1988 to grant the sublease. The order of
status quo was against the parties who had been impleaded in the interlocutory
P. Chidambaram, learned counsel for Somani Builders would submit that the
application for contempt was directed against the respondents therein. Where,
therefore, they were directed to maintain the status quo, there was no legal
disability on the part of the tenant A.K. Ghosh to sub-let the property. Hence,
if the sub-tenant had been lawfully inducted he can lawfully remain in
possession of the premises as the same was directed to be handed over to the
Joint Receivers by the learned Single Judge. It became necessary on the part of
the Somani Builders to mention before the learned Single Judge because its
possession came to be disturbed by the Special Officer 1 1987 Supp SCC 394 2
1986 Supp SCC 568 3 (1972) 3 SCC 85: 1972 SCC (Cri) 405 273 fixing the padlock.
Till then the question of 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:
curiae neminem gravabit meaning thereby an act of Court shall prejudice no man:
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 Carnie and Richard James
Gilman v. The Compotoir D'Escompte De Paris and The Chartered Bank of India,
Australia, and China 4, Jagat Dhish Bhargava v. Jawahar Lal Bhargava 5 and Jang
Singh v. Brij Lal6.
Jagat Dhish Bhargava v. Jawahar Lal Bhargava' 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.' In a contempt proceedings, which was not even initiated against
Respondent 2 or any of its officers, the said respondent was dispossessed :
The Court has no jurisdiction to direct dispossession of anyone 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;
any event, in a contempt proceedings, no order can be passed against a person,
who is not a party thereto and without giving any notice to him and affording
an opportunity of hearing to such person. (See Section 14 of the Contempt of
Courts Act, 1971);
The said contempt petition was filed by Respondent 1 against some of the
special leave petitioners contending that the special leave petitioners have
violated the order of Court.
Therefore, the Court had no jurisdiction to pass an order of dispossession
against Respondent 2 in such proceedings.
order passed in suit can bind a person, who was not a party thereto:
The tenant Ashok Kumar Ghosh and his sub- tenant Somani Builders Private
Limited were not parties to the suit instituted in the High Court of Calcutta.
Therefore, none of the orders 4 LR(1871)3PC 465 5 AIR 1961 SC 832: (1961) 2 SCR
918: (1961) 1 Ker LR 437 6 AIR 1966 SC 1631: (1964) 2 SCR 145: 65 Punj LR 884
274 passed in the said suit was ever or is at all binding on any of them;
The tenant; was inducted prior to 'the institution of the suit. The suit 'was
instituted on April 29,
1988 and prior
thereto, the tenant was inducted;
May 20, 1988 the tenant was authorised to grant subtenancy;
The suit was for a declaration that premises No. 16, Sudder Street, Calcutta
including its outhouse and garage belongs to the Diocese of Durgapur and
Diocese of Durgapur has alone exclusive right, title and interest to use the
May 20, 1988, the Parties to the suit were
directed to maintain status quo in respect of running of Diocese of Durgapur
till further order;
September 15, 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;
The said orders were not, nor can claim to be binding on the tenant Ashok Kumar
any event, the status quo order passed on September 15, 1988 which specifically mentioned that
the same should be maintained as of September 15, 1988 cannot curtail the right of the
tenant, which has been granted to him on May 20, 1988;
status quo order with a specification that the same should be as of that date
under no stretch of imagination can be stretched or given effect to
the tenant's right to grant sub- tenancy accorded to him on May 20, 1988 was not nor could be affected by
the said order of status quo dated September 15, 1988." Therefore, no exception
would be taken to the impugned order.
order to appreciate the respective contentions it is necessary to state that
violation of the following three orders were complained of:
(1) May 20, 1988 (2) June 1, 1988 (3) September
15, 1988 16.As stated
above, we are not concerned with the first of the two orders since they do not
relate to the property. It is the violation of the order dated September 15, 1988 (already extracted) which gives
rise to contempt. The contempt was chiefly about the respondents putting
padlock on the entrance of the suit premises on July 3, 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 amount to
contempt. Thus, it 275 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 July 26, 1993 the Special Officer to make an inventory of the
state of affairs. Where was the need to make the inventory of 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 the padlock. What was the nature of
prayer is not discernible anywhere. Even 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 May 10, 1993,
claiming a right of sub-tenancy from A.K. Ghosh.
of all, whether A.K. Ghosh was a tenant is itself in dispute. Secondly, whether
A.K. Ghosh had a right to create a sub-tenancy is again in dispute. Thirdly,
more than above all this, when the right of sub-tenancy was sought to be
founded on an agreement dated May 10, 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 September 15, 1988. It is
extremely unfortunate that the learned Judge had not even cared to bestow a
thought and entertained an oral application 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.
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 benedictions on parties who cannot have any
legal basis to found their claim.
worse was to follow. When the appellants before us complained of this direction
by the learned Single Judge to remove the padlock, the Division Bench followed
a novel procedure. 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 September 15,
1988. The order of that date states unequivocally "status quo as of
today". That could only mean September 15, 1988 and there cannot be the
state of affairs after five years of that order.
Wharton's Law Lexicon, 14th Edn. at p. 95 1, status quo has been edefined as
existing state of things at any given date; e.g., Status quo ante bellum, the
state of things before the war." 276
According to Black's Law Dictionary, 6th Edn. the relevant passage occurs:
existing state of things at any given date. Status quo ante bellum, the state
of things before the war. 'Status quo' to be preserved by a preliminary
injunction is the last actual, peaceable, uncontested status which preceded the
pending controversy." 21.This Court in Bharat Coking Coal Ltd. v. State of
Bihar' stated thus: (SCC p.398, para 5)
"According to the ordinary legal connotation, the term status quo' implies
the existing state of things at any given point of time." 22.When the
removal of padlock was complained of in the appeal filed by the appellants
herein, strangely delivery of possession was ordered! The said order clearly
betrays lack of understanding as to the scope of 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 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.
from the fact whether A.K. Ghosh had a legal authority to sublease or not it
was not open to him to grant a sublease in violation of the order. It is no use
contending as Mr Chidambaram, learned counsel for the respondents does, that
there was a bar to such a sublease under the terms of the status quo order. It
has the effect of violating the preservation of status of the property.
will all the more be so when this is done without the leave of the court to
disturb the state of things as they then stood. It would amount to violation of
the order. The principle contained in the maxim 'actus curiae neminem gravabit'
has no application 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, because
the state of affairs in relation to property as on September 15, 1988 is what
the 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 subtenancy is recognised, how is status quo as of
September 15, 1988 maintained? Hence, the grant of sublease is 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 sublease are clearly
hereby set aside the order of the Division Bench dated October 5, 1993 and the
orders of the learned Single Judge dated July 20, 1993 (except that part
relating to appointment of Special Officer), August 4, 1993, August 6, 1993,
August 11, 1993, August 16, 1993 and August 20, 1993 as well.
25.The parties are relegated to the position as on September 15, 1988. Somani
Builders are hereby directed to deliver vacant possession to the Special
Officer within one month from today. The learned Single Judge is directed to
dispose of the application for contempt in its proper perspective confining 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.
the foregoing reasons, the civil appeal is allowed with costs which shall be
home equally by Respondents 1 and 2 in this appeal.