BAS3STAYAKB, C.J.—In re De La Motte
1959 Present: Basnayake, C.J., de Silva, J., and 31. N. G. Fernando, J.
I2sr ms R. C. O. DE LA MOTTE
In the matter of a Buie issued under section 47 of the CourtsOrdinance (Gap. 6) on B. C. O. dela Motte, LicensedSurveyor, in D.C. Kandy No. 5,084
Contempt of Court—Commission issued by District Court to surveyor—Order of Courtdisobeyed—Power of Supreme Court to punish the surveyor—Courts Ordinance(Cap. 6), ss. 47, 57—Civil Procedure Code, ss. 428, 429—Partition Act, No. ISof 1951, s. 74.
Any person who does any act which may tend, to hinder the course of justiceor show disrespect to the Court’s authority commits contempt of Court withinthe meaning of section 47 of the Courts Ordinance.
Where a surveyor accepted a commission from a District Court for the surveyof a land which was the subject matter of litigation in that Court and subse-quently, in disobedience of the Court’s order, returned the said commissionunexecuted-—
Weld, that the Supreme Court had power under section 47 of the CourtsOrdinance to punish the surveyor for contempt of Court.
ULE issued under section 47 of the Courts Ordinance.
W. B. Wikra/manayake, Q.C., with T. B. Dissanayake, for Respondent.
M.Tiruchelvam, Acting Solicitor-General, with V. Tennahoon, SeniorCrown Counsel, and L. B- T, Premaratne, Crown Counsel, as Amicus
Cur. adv. vult.
October 2, 1959. Basnayake, C.J.—
The respondent, Roland Carl Owen de la Motte, is a person licensedunder the Surveyors Ordinance to practise as a land surveyor. In 1950he applied to the District Judge of Kandy for the inclusion of his namein the list of land surveyors who were willing to execute Commissionsissued by the District Court of Kandy for the survey of lands which arethe subject matter of litigation in that Court. Erom that year till21st April 1958 he continued to receive and execute the Commissionsissued by that Court. On that day he wrote the following letter to theDistrict Judge (X.19)
“ Kandy, 2.14.58.
The District JudgeKandy.
I regret that as the Judges have not found it possible to accede to therequests made in the joint letters dated 25th November and 13th December1957 signed by all the surveyors of Kandy Courts I have to return theundermentioned Commissions that I have in hand unexecuted.
aj. sr. a 5027—1,995 ui/59>
BASNAYAKB, C. T.—In re De La JHoite
I would be thankful if no further Commissions are issued, to me untilsuch time as it is found possible to grant the requests referred to above.
I am, Sir,
Your obedient Servant,
Sgd R. C. O. de la Motte,Licensed Surveyor.
P 4772, P 4703, P 4514, P 4531, P 4589, P 4867, P 5278, P 3979, P 4978,P 4803, P 2975, P 4860, P 3478, P 3897, P 2727, P 4601, P 4386, P 5309,P 3817, P 4747, P 4362, D 5084, L 4860, L 5038, L 4801, L 4583, L 4986,CR 14251, OR 14373, P 4701.35
The Commissions above specified by the respondent are Commissionsissued in respect of partition actions as well as other actions relating toland. On receipt of this and other similar communications from otherland surveyors to whom Commissions had been issued the District Judgebrought the matter to the notice of this Court and upon considerationof his communication this Court issued the following rule nisi on therespondent under the hand of its Registrar :—
“ Whereas the District Court of Kandy did on the 20th day ofJanuary, 1958, in D.C. Kandy Case No. 5084/1, issue a Commissionto you and whereas you did return the said Commission to the saidDistrict Court unexecuted with a request for an extension of time andwhereas the said District Court granted your application and extendedandre-issued the said Commission for execution by you returnable the2nd day of June, 1958 ; and whereas you in disobedience of the Orderof the said Court did return the said Commission unexecuted :
£: You are hereby ordered to appear in person before theHonourable the Supreme Court at Hulftsdorp, Colombo, on the5th day of June. 1959, at 11 o’clock ia the forenoon and show cause,if any, why you should not he punished for the offence of contemptof Court in that having accepted the said Commission issued to youby the said District Court you did in disobedience of its order returnthe said Commission unexecuted and thereby act in contempt of theauthority of the said District Court of Kandy/3
The respondent appeared by counsel and stated that he was showingcause and we therefore fixed a day for his trial.
Shortly the facts are as follows The respondent was engaged by thedefendant in D.C. Kandy Case No. 5084 for making a survey of the landin dispute in that case. The plaint in that action was filed on 28th March1957. Before filing answer the defendant appears to have made anapplication for a survey of the land and his t implication has been allowedon condition that the surveyor’s fee of IBs, 75 was deposited. On
BASNAYAKE, C.J.—In re De La Matte
17th January 1958 this deposit was made and on 18th January 1858 (the(late 18.1.1957 on his letter appears to be a mistake) the respondentwrote the following letter to the "District Judge :—
“ D.C. Kandy Cu-tr No. L. oOSJ
I have agreed to survey the land called Thiruwaneella Alaboln.Welehena of one Thimbu kurakkan extent at Munwatte, which is theland in dispute in this case for a fee of Rupees Seventy-five onlyRs. 75.”
The following Commission was thereupon issued to him on 20th January1958
e< In the District Court of Kandy
OanapathipiU&i Kailainathan of ColomboPlaintiff
No. L 50S4.
Rajanavake Mudiyanselage Appuhatnv of Kahatadanda,Padiyapelleila. Defendant
To : R>. 0. O. de la Motte Esquirelicensed Surveyor
Whereas by an order of this Court mad© on the 20th day ofJanuary 1958 it was ordered that a commission be issued to you tomake a survey of the land fully described in the schedule hereto.
You are therefore hereby appointed Commissioner to make thesaid survey and for that purpose you are hereby authorised at allhours after sunrise and before sunset with all necessary assistance,workmen and implements to enter upon the said premises andcarry on and continue the said survey until the same is concludedand ended.
You are further directed to affirm or swear to the correctness ofyour plan and report before a J.P. or a Commissioner for Oaths.
You are hereby required to. complete the said survey and makeyour return to Court on or before the 19th day of March 1958.
A sum of Bs. 75 as survey fees has been deposited tc the creditof this ease.”
In a schedule appended to this Commission the land in dispute isdescribed by its metes and bounds. The Commission is signed, by the
BASHAYAEIl!, C.J.—In re t>» La 'M.otte.
Order of Court, by its Secretary. On 17th March 1958, two days before'the date on which the respondent had to make his return he wrote thefollowing letter to the District Judge :—
" I>.G. Kandy Case No. L. 5,084
Due to wet weather, I was unable to execute this survey whichI had fixed for 16.3.1958.
Please grant me an extension.”
Although the extension asked for was granted till 2nd June 1958, as statedabove, with his letter of 21st April 1958 the respondent returned theCommission unexecuted.
It is contended by counsel that the conduct of the respondent does notconstitute contempt of court. He argued that in civil proceedings onlythose acts of disobedience which are expressly declared hy the CivilProcedure Code to be punishable as contempt of court are punishable.He cited section 137 of the Code as an instance. We are unable touphold his submission. The Civil Procedure Code does make expressprovision for the punishment as for contempt of certain acts and omissionson the part of those subject to its orders and directions not only in section137 but also in sections 294, 295, 358, 650, 656, 663, 682, 713, 717, and 718but the existence of those powers in no way affects the jurisdiction ofthis Court under section 47 of the Courts Ordinance. That section,which empowers this Court to take cognizance of and to try offences ofcontempt, reads—
“ The Supreme Court or any Judge thereof, whether at Colombo orelsewhere, shall have full power and authority to take cognizance ofand to try in a summary manner any offence of contempt committedagainst or in disrespect of the authority of itself or any offence ofcontempt committed against or in disrespect of the authority of anyother court, and which such court has not jurisdiction under section 57to take cognizance of and punish, and on conviction to commit theoffender to jail until he shall have purged his contempt or for suchperiod as to the court or judge shall seem meet; and such imprison-ment shall be simple or rigorous as such court or Judge shall direct,and the offender may in addition thereto or in lieu thereof, in thediscretion of such Court or Judge, be sentenced to pay a fine notexceeding five thousand rupees.1'
Now what are the offences of contempt committed against a DistrictCourt or in disrespect of its authority which it has jurisdiction undersection 57 to take cognizance of and to punish ? The answer is to befound in that section which reads-—
“ Every District Court, Court of Requests, and Magistrate’s Courtshall, for the purpose of maintaining its proper authority andefficiency, have a special jurisdiction to take cognizance of, and topunish by the procedure and with the penalties in that behalf by law
BASNAYAEE, C.J.—In re De La Motte
provided, every offence of contempt of court committed in the*presence of the court itself, and all offences which are committed in the*course of any act or proceeding in the said courts respectively, andwhich are declared by any law for the time being in force to be punish-able as contempts of court.”
It is not contended by the learned Solicitor-General who appeared asamicus curiae that the District Court has power to take cognizance of therespondent’s offence. The main submission of respondent’s counsel isthat the act of the respondent does not fall within the ambit of section 47.That section is a provision of wide import. The legislature in its wisdomdid not attempt to define the offence of contempt because it would havebeen unwise to do so. A definition in the statute itself would have hadthe effect of restricting the scope of the unfettered jurisdiction now vestedin this Court in the interests of the efficient administration of justice.The scope of the section is to be found in the words “ any offence ofcontempt committed against or in disrespect of the authority of itselfor any offence of contempt committed against or in disrespect of theauthority of any other court.” The expression contempt of court isone derived from English law and in that system of law it is contemptfor any person to do any act which may tend to hinder the course ofjustice or show disrespect to the Court’s authority (Sweet’s Daw Dic-tionary). There is no doubt whatsoever that the conduct of the res-pondent in this case constitutes a very grave contempt of court of anature heretofore unheard of in our courts. The respondent pleadsthat he took the course he did because the Judges of Kandy did notaccede to the requests of the land surveyors whose names were on theCourt’s panel to issue Commissions in rotation in the order of their nameson the panel instead of allowing each party to a case to nominate his ownsurveyor. He sought to shelter himself under the representations madeby them. For that reason it is necessary to refer to those representationsin this judgment. Briefly the history of the negotiations between thesurveyors and the District Judge on the subject of the system to befollowed in the issue of Commissions to those on the panel of the Court is asfollows.
On 17th August 1957 the District Court published the following noticeon its notice board (X2):—
“ Commissions in Land Actions excludingPartition SuitsThe choice of a surveyor in the above cases is left to the party orparties, subject however to the approval of the Court.
The Proctor making the application for the issue of a commissionshould state the fee agreed upon between the client and the surveyorand deposit, except in an instance specially permitted by the Court,the entire amount before the Commission is issued.
Fees payable to the Surveyor should be deposited in Court andnever paid direct to the Surveyor.”
2*J. IT. X 5927 (11/59)
BASNAYAKE, C.J.—In re De La Matte
On 29tli August 1957 it made the following order governing the issue of'Commissions in. Partition Cases (S.O. 135) (X3) :—
“ As and from the 10th September 1957 Commissions in PartitionCases will be issued to Surveyors ehosen by the parties and not inrotation.
“ The Proctor for Plaintiff will file along with the Plaint a motionsuggesting the costs that should be deposited in Court for the pre-liminary survey.
“ In the event of the Court accepting the amount suggested as theestimated costs, the full amount should be deposited in Court with aletter from the Surveyor that he accepts this amount as his fee for thesurvey.”
On 2nd October 1957 the Surveyors including the respondent sent thefollowing letter to the District Judge
“ 2nd October 1957
Standing Order No. 135 dated August 29,1957Sir,We beg to acknowledge receipt of your letter No. SO/135 of 4thSeptember 1957 enclosing a copy of standing order No. 135.
With regard to para 1 of the Standing Order, while leaving thematter entirely in the hands of the Court we beg to submit our senseof disappointment that the Court has not found it possible to continuethe system of rotation which we urged at the interview granted to uson 1.8.1957.
As regard paras 2 and 3 of the Standing Order, which to ourmind do not appear to be in agreement with the provisions of section8(5) the concluding clause of the same section and Sections 9 and.29 ofthe Partition Act, we beg to submit our difficulty in carrying out theOrder for the following reasons’:
(a) It is impossible to determine the full cost of a survey before thesurvey is actually made as from experience we know that theSchedule to the Plaint in Partition cases does not providesufficient data to make a correct forecast of the actual cost ofwork involved to satisfy the provisions (sic) requirements of thePartition Act.
<6) As Commissioners of the Court, we feel that we would be in abetter position to discharge our duties to Court if the questionof fees was left undiscussed with any one other than the Court.
fc) The Order if carried out, we fear, would tend to corrupt practicein as much as Commissions are likely to he hawked about bylitigants and their touts.
■(d) Most of the Surveyor-Commissioners of Courts through out theIsland are members of the Surveyors’ Institute of Ceylon andas such this Standing Order was most carefully and respectfullyconsidered by the Council of the Institute.
BASTTAITAKE, C.J.—In re De La Motte
The Council is of opinion that Court Commissioners who aremembers of the Institute would contravene the rules of the Institutegoverning scale of fees, if the requirements of the Standing Order areto be satisfied.
We are greatfully (sic) aware that the issue of the last two parasof the Standing Order has been due to the anxiety of the Court tohelp the Surveyors, and ineidently the litigants to avoid accumulationof large balance of survey fees. We therefore shall very willinglyassist the Court in any other manner the Court would wish us to.
Under these circumstances we would respectfully request thatthe Court he pleased to reconsider the Standing Order to enable usto continue as commissioners of the Court.
We are, Sir,
Your obedient Servants,
J. T. David
V. B. Tennakoon
R. M. de Zilva
S. M. Talwatte
R. G. Herat
H. D. G. Rodrigo
R. C. O. de la Motte
R. T. Samarasinghe
L. B. Beddewela
12. R. Claasz
T. P. Murray
Ij. A. de C. Wijetunga
licensed Surveyor ”
On 7 th November 1967 the District Judge through the Secretary of theCourt expressed his willingness to meet a deputation of three Surveyors.On 18th November 1957 the deputation met the District Judge andthereafter on 25thNovember 1957 the Surveyors in eluding the respondentaddressed the following communication to the District Judge:—
“ Kandy, 25th November 1957
We the undersigned Commissioners of Kandy Courts, have thehonour to inform you that the discussion which took place at theinterview you kindly granted to our representatives Messrs T. P.Murray, B. Samarasinghe and J. T. David on the 18th instant, andyour decision to give effect to Standing Order No. 135 dated 29.8.57as it stands, for a trial period, was duly communicated to us.
BASNAYAKE, C. J.—In re De La Motte
Your decision and the reasons for arriving at it were carefullyand respectfully considered by us at a meeting convened for thepurpose.
While we are grateful to know that yon had given the mattermuch thought and consideration, we extremely regret to find our-selves unable to carry out the requirements of the Standing Order.
We have been compelled to feel that the Standing Order hasbeen the outcome of a persistent but unjustifiable demand by asection of the Bar to (1) reduce the survey fees and (2) nominatesurveyors of their choice, for their own benefit at the expense of thesurveyor.
Under these circumstances, we would once again urge on youto be pleased to grant us the following requests :—
(а)The system of Rotation in the issue of commissions to be restored. .
(б)Survey fees to be in accordance with the schedules provided for
in Partition Act No. 16 of 1951.
The mrnfmnm initial deposit for an average village holding for
preliminary survey be Rs. 100 and subsequent partition surveybe in full.
Recovery of balance survey fees to take precedence over all other
proceedings immediately after the return to the commissionis filed.
Requests Nos. (a) to id) above to be made applicable in land
cases as well.
Finally, it was decided at the meeting referred to above, that,pending the grant of the above requests, we would be unable toundertake any fresh commissions from the 1st of December 1957.
We are, Sir,
Your obedient Servants,
Sgd J. T. David
SamarasingheT. P. MurrayR. M. De Zilva
S. M. TalwattaID. R. ClaaszR. T. Samarasinghe
U.B. TennekoonR. C. O. De La MotteEL. G. Herat
Licensed Surveyors, Court Commissioners.5 3
BASSTAYAKE, C.J.—In re Be ha Matte
"* The Judges of the Kandy District Court considered the representationsmade in this communication and conveyed their decision through theSecretary of the Court by the following letter of 11th December 1957 :—
“ J. T. David Esquire
I am directed by the District Judge to acknowledge receipt of aletter dated the 25th of November 1957 received here on 30thNovember 1957, to which you and 11 other licensed surveyors andCourt Commissioners are signatories.
The reply is being sent to you along with a request by the DistrictJudge that you be good enough to convey the contents of this letterto the other signatories ; if for any reasons you are unable to do so,will you be so good as to communicate with me.
The Judges have considered your letter.
They take exception to paragraph 4 of your letter ; you are awarethat the decisions reached by them were after a consideration of therepresentations made by the Court Commissioners and a deputationof Proctors.
They note with regret your decision not to accept any fresh com-mission from the 1st of December, 1957, particularly as a deputationof 3 Court Commissioners were apprised by the District Judge of thereasons which influenced the Judges to reach the decision that partiesshould be permitted to go back to the system of selecting the Com-missioners in partition cases ; the District Judge also emphasizedto the deputation that this system would be followed until thematter was decided at a conference of judicial officers in the Islandwhich would normally be held in July/August, 1958.
The judges also note your request that in land cases too the systemof rotation be introduced; this is a request which was never madebefore; the system of choosing surveyors in land cases has workedvery satisfactorily and there is no reason to change it.
The Judges are of the view that the requests contained in yourletter under reply cannot be complied with, but in regard to (a) and(&) no final decision will be reached until after the conference ofjudicial officers.
Kandy, 11th December 1957
To this letter the Surveyors sent the following reply on7th January 1953:—
“ Kandy, 7th January 1958
The District JudgeKandy.
We the undersigned Commissioners of Kandy Courts beg toacknowledge receipt and to note the contents of your letter dated die11 t,s iiist'Snt* Miwdr^ss^dJ*. jH, !D&vid}Surys^o?
BASNAYAKE, C.S.—In re Be La Matte
We axe thankful that the Judges of Kandy Courts have given dueconsideration to our letter of the 25th November 1957 hut regretto note that they have not found it possible to grant our requests.
We have once again given anxious consideration to the reasons■which have influenced the Judges to (X)'"reverb to the system ofnomination of Commissioners parties, (2) adopt the method of fixingsurvey fees by arrangement with parties before issue of Commissions,for a trial period between now and the next conference of JudicialOfficers.
We feel constrained to submit that the trial period will causehardship resulting in a sense of grievance and frustration under whichwe would he labouring.
May we therefore suggest that, in order to avoid embarrassmentto the J udges by any future course of action we would be compelledto take, the system of Rotation and collection of survey fees as.provided for in the Partition Act he continued during the interimperiod referred to. This would afford an opportunity to theSurveyors* Institute of Ceylon an island-wide organization to makesubmissions to the Judicial Officers’ Conference for its consideration.
We appreciate the fact that as a body of responsible professionalmen, who have been Commissioners of the Courts for a period rangingfrom 25 to 3 years, it would be repugnant for us even to seem non-co-operative, but, if force of circumstances compel us, we would haveno alternative other than to deprive ourselves of service we couldotherwise continue to place at the disposal of the Courts, as intimatedin our letter of 25th November 1957.
We are, Sir,
Your obedient Servants,
Sgd J. T. DavidT. P. Murray
HeratXL B. TennakoonR. C. O. de la MotteR. M. de Zilva
S.M. TalwatteE. R. Glaasz
A farther interview with the District Judge was sought and grantedon 18 oh March 1958 to the representative of the Surveyors and thereafteron 22nd April 1958 the following le'tter was sent by them to the DistrictJudge:—
The District JudgeKandy.
22nd April 1958
Court CommissionsSir,I conveyed all that transpired at the interview granted by yonto me on the 18th March 1958 to all the surveyors as desired by you.
I regret to inform you that it has not been found possible to alterthe decision already arrived by us.
We are therefore returning herewith all commissions on which noaction has been taken np to date.
I am, Sir,
Your obedient Servant,
Sgd J. T. DavidOn behalf of Kandy SurveyCommissioners. ’ ’
The attitude of the respondent and the other land surveyors as revealedin the letters reproduced above does not in any way excuse, far lessmitigate, his offence. The correspondence reveals that the respondentand his fellow surveyors were fully aware of their obligations to the Courtand the gravity of the action they contemplated. Though their repre-sentations were all along confined to commissions issued in Partitionactions in their letter of 25th November 1957 they extended them to evenother actions relating to land thereby embarrassing the Court farther.The Judge’s discretion in the issue of Commissions for the survey of aland or the demarcation of boundaries is not fettered. Nor is his powerto issue such Commissions confined to actions under the Partition Act.The Civil Procedure Code confers wide powers in that behalf (ss. 428, 429).He is free to issue a Commission to any surveyor who has expressed hiswillingness to carry out such Commission, nor is he confined to any listmaintained by him. Although in the case of Partition Actions section74 of the Partition Act, No. 16 of 1S51, requires the Court from time to-time to prepare a list of surveyors to whom Commissions may be issued,under the Act the District Judge’s discretion in the issue of Commissionsis not fettered in any way by the existence of a list. Put, for reasons o£convenience, the Court rarely travels outside the list of approved surveyorsmaintained by it.
BASNAYAKE, C.J.—In re De La.Motte
The surveyors were not only mistaken in the view they took of theirrights but they were ill-advised. There is no doubt that the respondentdid intend to and did in fact disobey the order of Court communicatedto him by the Commission issued to him. Disobedience to an order ofCourt, which at all times is a serious offence, is aggravated when it isaccompanied by veiled threats of mass disobedience.
The respondent as stated above is guilty of a gross contempt of Court.Contempt of Court is an offence ordinarily punishable with imprisonment.Is there any reason in the instant case why we should depart from theordinary rule and refrain from inflicting the punishment of imprisonmentand give the respondent the option of paying a fine 1 It seems to usthat the respondent, by his subsequent conduct in carrying out theCommission referred to in the Rule and other Commissions, has shownthat amount of contrition without which we would not be justified indeparting from the ordinary rule of punishment. The Proctors for theplaintiff moved on 29th August 1958 that the Commission be re-issued•to him. On 4th September 1958 the order that the Commission be re-issued was made and on 25th October 1958 he made his report and sub-mitted his plan to the Court. In his evidence he stated that at the dateof the trial of this offence he had executed all the thirty Commissionsreturned by him on 21st April 1958. He has also in an affidavit filed byhim in this Court expressed his penitence for the offence committed by him.In our view there is sufficient ground to justify a departure from theordinary rule of punishment and for not imposing on the respondent thepunishment of imprisonment. But at the same time we cannot overlookthe fact that his conduct constituted a serious interference with theadministration of justice and delayed the proceedings in thirty civilactions.
We cannot also lose sight of the fact that the respondent was an activeparty to an organised attempt to intimidate the Court from carrying outits decision and to force it to grant what the respondent and his fellowsurveyors wanted. Such organised interference with the administrationof justice, such planned disobedience to the orders of the Court, callsfor a punishment which will not only be adequate as far as the offenderhimself is concerned but will also deter him from repeating it and othersfrom committing an offence of this nature. It is not in the public interestthat those who seek to destroy the authority of the Court by massdisobedience or by organised means to bring the ad ministration ofjustice into contempt should be lightly dealt with especially when theyare officers of the Court acting under its authority, exercising powersgranted by it, and enjoying its protection. We do not think that there issubstance in learned counsel’s submission that a surveyor to whom aCommission is issued is not an officer of Court. We have no doubt thatwhile holding the Commission he is an officer of Court for the purposefor which he has been appointed. He is, when clothed with the authorityof a Commission, no different from its other officers such as Advocates,Proctors and Pis cals. Officers of the Court cannot disobey its ordersexcept at their peril. When those who are acting under the authorityof the Court flout that very authority and seek tc destroy it we wouldbe wanting in cur duty if we do not register our stem disapproval of
Wijesekera v, Weliwitigoda
such conduct. Although, in view of the mitigating circumstances set outabove, we have decided not to award the punishment of imprisonment,the finft that we impose should we think be exemplary. It should becommensurate with the gravity of the offence and sufficient to deterothers.
In the instant case any fine short of one thousand rupees will not servethe ends of justice and the public interest and we accordingly sentence therespondent to pay a fine of one thousand rupees. If he does not pay thefmp- -we sentence Him to undergo simple imprisonment for one year.
jde Silva, J.—I agree.
B. N. G. Fernando, J.—I agree.
Rule made absolute.