V.C.Dr.A.P.J.Abdul Kalam ... vs Vishwajeet Sinha
2017 Latest Caselaw 6000 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 5
 

 
Case :- SPECIAL APPEAL No. - 460 of 2017
 

 
Appellant :- V.C.Dr.A.P.J.Abdul Kalam Technical University Lko.And Anr.
 
Respondent :- Vishwajeet Sinha
 
Counsel for Appellant :- Laltaprasad Misra,Manish Kumar
 
Counsel for Respondent :- R.C.Saxena
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajesh Singh Chauhan,J.

We have heard Dr. L. P. Mishra and Sri Manish Kumar learned counsel appearing for the appellants and Sri R.C. Saxena learned counsel appearing for the respondent, both on the merits of the special appeal as also on the application moved by the appellants seeking amendment in the array of appellants.

We will first take up the issue relating to the amendment application. This special appeal seeks to challenge an order / judgment dated 23.10.2017 passed by Hon. the Contempt Judge in Contempt Petition No. 1449 of 2017 which has been filed by the respondent alleging disobedience, defiance and non-compliance of an order dated 18.11.2016 passed by the Hon'ble Single Judge in Writ Petition No. 27467(S/S) of 2016 as affirmed vide another order dated 13.4.2017 passed in the same writ petition, whereby it was provided that till further orders of this Court, status quo existing prior to 9.10.2016 shall be maintained.

In this special appeal, there are two appellants, (i) Vice Chancellor, Dr. A.P.J. Abdul Kalam Technical University and (ii) Deputy Registrar, Dr. A.P.J. Abdul Kalam Technical University, Lucknow. An application for amendment has been moved by the appellants seeking leave of the Court to permit the appellants to add the following two as appellants :

(i) Professor Vinay Kumar Pathak, Vice Chancellor, A.P.J. Abdul Kalam Technical University, Lucknow; and

(ii) A.K. Shukla, Deputy Registrar, A.P.J. Abdul Kalam Technical University, Lucknow.

The appellants in the affidavit filed in support of application for amendment have stated that due to inadvertent mistake which is typographical in nature, in the array of appellants, the appellants have been arrayed by their designation / post and their names have been left to be incorporated.

In this background it has been prayed by the learned counsel appearing for the appellants that the aforesaid typographical inadvertent mistake may be permitted to be corrected and accordingly the appellants may be permitted to incorporate the amendments sought through the application.

Opposing strongly the prayer made by the appellants in the amendment application, it has been canvassed by Sri R.C. Saxena the learned counsel appearing for the respondent that the contempt petition was filed by the respondent arraying the appellants by their names and not by their designation. He has thus, submitted that the appellants in the contempt petition are parties by name and not by designation and hence, the special appeal filed by the appellants arraying themselves by designation, itself would not be maintainable and accordingly permitting the amendment sought will amount to filling up the lacunae to overcome the ground raised by the respondent regarding maintainability of the appeal and hence, the application for amendment deserves rejection. He has also stated that since by the order under appeal dated 23.10.2017, the appellant no. 1, neither by name nor in his official capacity, can be said to be a person aggrieved and it is only the appellant no. 2 -A.K. Shukla, that too, in his personal capacity, who can be said to be aggrieved in view of the order dated 2.8.2017 passed by the Hon'ble Contempt Judge, hence, since the special appeal is not maintainable at the instance of appellant no. 1, his impleadment even by name as an appellant in the special appeal is uncalled for. For emphasizing this ground learned counsel representing the respondent, Sri R.C. Saxena has taken the Court to the order dated 2.8.2017 passed in Contempt Petition No. 1449 of 2017 whereby notices were issued only to respondent no. 2 therein (appellant no. 2 herein) fixing 6.9.2017 and it was directed that it is the respondent no. 2 who shall appear in person before this Court to show cause as to why proceedings under the Contempt of Courts Act may not be initiated against him for willful disobedience of the order dated 18.11.2016 passed by the writ Court. Sri Saxena has thus, submitted that if anyone can be said to be aggrieved, it is the appellant no. 2 -A.K. Shukla, that too, in his personal capacity and not the appellant no. 2 either in his personal capacity or in his official capacity. In this view, submission of Sri R.C. Saxena, learned counsel for the respondent is that the application for amendment needs to be rejected.

In support of this submission learned counsel representing the respondent has cited a judgment of Hon'ble Supreme Court in the case of Thammanna vs. K. Veera Reddy and others : (1980) 4 Supreme Court Cases 62. In the said judgment the meaning of the expression ''person aggrieved' has been explained and it has been held that meaning of this expression varies according to the context of the statute and the facts of the case. Para 16 of the said report relied upon by Sri R.C. Saxena is extracted herein below :

"16. Although the meaning of the expression ''person aggrieved' may vary according to the context of the statute and the facts of the case, nevertheless, normally, "a person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something". As per James, L.J., in Re Sidebothem referred to by this Court in Bar Council of Maharashtra v. M.V. Dabholkar and J.N. Desai v. Roshan Kumar."

Having considered the submissions made by the learned counsel appearing for the respective parties on the prayer made by the appellants for allowing the amendment application, we do not find any just or plausible reason for disallowing the prayer made in the amendment application for the reason that there appears to be a mistake in the array of appellants in the special appeal which can be attributed, at the most, to a draftsman's error. No doubt, in the contempt petition the Vice Chancellor and the Deputy Registrar of the University concerned have not been arrayed in their official capacity and further that there is no quarrel that contempt is always alleged against an individual in his personal capacity and not in his official capacity, however, depriving any person either in his official capacity or in his personal capacity to avail the statutory remedy of filing special appeal (if the same is available) under Chapter VIII Rule 5 of the Rules of the Court would amount to denial of right of seeking the remedy which is statutorily available to such an individual. Further, the instant special appeal is being argued at the admission stage and before its admission it is always open to the appellant to seek amendments or corrections in the memo of appeal. The amendment sought does not, in-fact, in any manner either prejudice the respondent or curtails or infringes any of his rights. The amendment sought is only to the effect that appellants may be permitted to be impleaded as appellants in their personal capacity and not in their official capacity.

So far as the objection raised by learned counsel representing the respondent, Sri R.C. Saxena opposing the amendment application to the effect that Vice Chancellor - Professor Vinay Kumar Pathak cannot be said to be a person aggrieved and hence, his impleadment as appellant in this special appeal is unwarranted, is concerned, we are not convinced by the said argument for the reason that in the writ petition where the orders dated 18.11.2016 and 13.4.2017 have been passed, the Vice Chancellor has been arrayed as respondent and any order passed in the said writ petition, namely, Writ Petition No. 27467(S/S) of 2016 shall bind both the respondents therein and accordingly the Vice Chancellor - Professor Vinay Kumar Pathak can not escape the clutches of any order passed in the contempt matter. The order passed by Hon'ble Contempt Judge on 2.8.2017 though did not issue notice to the Vice Chancellor - Professor Vinay Kumar Pathak, neither did it require personal presence of the Vice Chancellor - Professor Vinay Kumar Pathak, however, the Vice Chancellor being the Chief Executive Officer and the Administrator at the highest pedestal in the University concerned, will be equally liable for disobedience of any order, if it is there, passed by this Court either in writ jurisdiction or in contempt jurisdiction. The Vice Chancellor - Professor Vinay Kumar Pathak cannot be said to be immune from the contempt proceedings of this Court.

In respect of the law laid down by Hon'ble Supreme Court in the aforesaid case of Thammanna ( supra) there cannot be any dispute. A person aggrieved must be a person who has suffered a legal grievance or a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something . The underlying principle pronounced by Hon'ble Supreme Court in the said case of Thammanna, however, is that the meaning of the phrase ''a person aggrieved' depends on the context of the facts of the case. We, thus, observe that in the context of the facts of this case, both the appellants can invoke the jurisdiction of this Court for filing special appeal under Chapter VIII Rule 5 of the Rules of the Court.

For these reasons, we reject the submission made by Sri R.C. Saxena, learned counsel for the respondent against the application for amendment.

Amendment application is, thus, allowed. Learned counsel for the appellants will incorporate the necessary amendments in the array of appellants today itself.

We now proceed to consider and deal with the competing arguments raised in support of and against the special appeal by the learned counsel appearing for the respective parties.

Sri R.C. Saxena learned counsel representing the respondent, at the outset, has raised the issue of maintainability of the special appeal and in support of this submission Sri Saxena has taken several grounds. The first ground taken by Sri Saxena for asserting that the instant special appeal is not maintainable, is in respect of the array of appellants in the special appeal as he has submitted that the special appeal with the appellants having been arrayed by designation would not be maintainable for the reason that the contempt is always alleged against an individual in his personal capacity and not in his official capacity and further that the appellants have not been arrayed by name; rather in their personal capacity.

While deciding the amendment application we have already observed in the foregoing paragraphs of the judgment that such an objection is not tenable and have accordingly allowed the amendment application. In this view, the first ground taken by the learned counsel representing the respondent regarding the maintainability of the special appeal being at stake, cannot be agreed to.

Sri Saxena, thereafter, has submitted that once contempt petition is filed by any individual, may be by a petitioner in a petition filed before this Court invoking the writ jurisdiction, role of such a person is over once the notices are issued by this Court in contempt proceedings. Elaborating this submission it has further been contended by the learned counsel for the respondent that role of the petitioner in contempt proceedings is that of a complainant or informant and once Hon'ble Contempt Judge in this case has ordered issuance of notices for disobedience of the order passed by the writ Court, the matter would now lie in the realm of this Court and the contemnor and hence impleadment of the respondent itself is a serious defect which makes the special appeal non-maintainable. Sri Saxena has gone even to the extent of submitting that instead of impleading the respondent as a party in this special appeal, the appellants ought to have impleaded the contempt Judge as party to the proceedings of this Special Appeal.

Sri Saxena in this regard has relied on a judgment of Bombay High Court in the case of Deepak Cochhar and another vs. Indusind Bank Ltd. rendered on 3.4.2006, reported in 2006(4) Mh. L.J. 194. He has relied on the said judgment to assert that contempt is a matter essentially between the Court and the contemnor and that a person filing an application seeking action against the contemnor is only informant. Sri Saxena has thus, submitted on the basis of this judgment that once the Court admits the contempt petition, the petitioner has no effective role to play though usually he is given a hearing in such petitions.

Such a ground taken by the learned counsel for the respondent for asserting that the special appeal is not maintainable, we are afraid, cannot be acceded to. There is no quarrel to the legal proposition that in contempt proceedings the role of the petitioner invoking the contempt jurisdiction is that of the complainant and further that once the notices are issued, the proceedings become a matter between the Court and the contemnor, however, in case any interference is shown by this Court in the special appeal preferred by the appellants against the order passed by the Hon'ble Contempt Judge, the respondent is likely to be affected. It may also be observed that in absence of the respondent having been impleaded herein, it would not be possible for this Court to correctly gather the issues, both legal and factual, and hence, in this view, the respondent is not only a proper but a necessary party to these proceedings of special appeal. So far as the judgment in the case of Deepak Cochhar (supra) of Bombay High Court is concerned, we may observe that proposition of law laid down therein is not disputable. However, for the reasons given by us above, in this case it can not be said that respondent should not have been arrayed as a party. The objection raised by the learned counsel for the respondent on this count for submitting that the instant special appeal is not maintainable, thus, does not have any merit which is hereby rejected.

The next submission advanced by Sri R.C. Saxena on behalf of respondent for persuading us not to entertain this special appeal is that the order under appeal herein is only an interlocutory order and that it does not attach any finality and further that it is only a procedural order as such the special appeal would not be maintainable under Chapter VIII Rule 5 of the Rules of the Court for the reason that the order dated 18.11.2016 as affirmed by the order dated 13.4.2017 cannot be said to be a "judgment" deciding any issue finally. In this view, the submission is that this special appeal would not be maintainable.

Sri Saxena has, in this regard, placed reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania and another : reported in (1981) 4 Supreme Court Cases 8 = A.I.R. 1981 1786. Drawing attention of the Court to para 113 of the judgment of the Hon'ble Supreme Court in the case of Shah Babulal Khimji (supra), it has been stated by learned counsel that the judgment can be of three kinds, (i) a final judgment, (ii) a preliminary judgment, and (iii) Intermediary or interlocutory judgment. Para 113 of the judgment of Hon'ble Supreme Court in the case of Shah Babulal Khimji (supra) is extracted here under :

"113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The Concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word ''judgment' as used in Clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ''order' or ''decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ''judgment' should receive a much wider and more liberal interpretation than the word ''judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word ''judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds :

(1) A final judgment.- A judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.

(2) A preliminary judgment.-This kind of a judgment may take two forms-(a) where the Trial Judge by an order dismisses the suit without going into merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other , the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tied on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.

(3) Intermediary or interlocutory judgment.-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the Trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a Larger Bench. Take the converse case in a similar suit where the Trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the Trial Judge would not amount to a judgment within the meaning of Clause 15 of the Letters Patent but will be purely an interlocutory order. Similarly, suppose the Trial Judge passes an order setting aside an ex part decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is, therefore, appealable to a larger Bench"

Sri Saxena asserting the aforesaid argument has stated that order under this appeal is not a judgment. He has further submitted that the order passed by Hon'ble Contempt Judge in this case, which is under challenge herein, cannot be said to be a final order ''as it lacks the requisites of the order being a formal expression of a decision and that the order under appeal does not contain any expression of a decision'. He has further stated that a final order must be a formal expression of a decision of a Court and since in this case there is no final decision on any issue in the order dated 23.10.2017, the instant special appeal would not be maintainable.

Relying upon yet another judgment rendered by the Hon'ble Madras High Court in the case of S. Arumuganainar Senior Manager vs. Jeenath Roadways on 24.8.2005 reported in (2005) 4 MLJ 393, Sri Saxena has submitted that the order dated 23.10.2017 passed by Hon'ble Contempt Judge is only a procedural order and it only contains incidental directions, more or less clarifying the matter with a view to avoid any further litigation as such the special appeal ought to be rejected at its threshold. Sri Saxena has relied upon paragraph 27 of the said judgment of the Madras High Court in the case of S. Arumuganainar Senior Manager (supra) which is extracted herein below :

"27. It is true that in some cases the court while dealing with a contempt petition does not come to any categorical conclusion regarding the allegation relating to contempt and yet issues certain incidental directions more or less clarifying the matter, particularly, with a view to avoid any further litigation. In the present case, it is not necessary to decide finally as to whether any such incidental or clarificatory directions can be issued while disposing of a contempt petition because, in our opinion, even assuming that this could be done particularly with a view to avoid any protracted litigation, in the present case, such directions should not have been issued. The directions issued do not appear to be any incidental or clarificatory directions, but independent positive directions, which are not envisaged within the limited scope of the controversy which was before the learned single Judge in the contempt petition. In fact the order seems to be the trapping of the final order in O.A. No. 724 of 2003 itself, although only the contempt petition was required to be considered. The learned single Judge while deciding the matter under Section 9 of the Arbitration and Conciliation Act has issued the directions without any discussion regarding various aspects involved. In such view of matter, the order passed by the learned single Judge cannot be sustained and the same is hereby set aside."

Sri Saxena has also submitted that no interference in this special appeal is called for, for the reason that Hon'ble Contempt Judge has only provided for ensuring compliance of the order passed by the writ Court while passing the order under appeal dated 23.10.2017 and in case indulgence by this Court is shown in this appeal, the same would amount to wasting valuable time of this Court which would not be in the interest of justice.

Sri R.C. Saxena, learned counsel for the respondents has also cited two more judgments of Hon'ble Supreme Court, one, Director of Education, Uttaranchal and others vs. Ved Prakash Joshi and others, reported in [2005 SCC (L&S) 812] and the other, the judgment rendered on 24.08.2004 in the case of Prithawi Nath Ram vs. State of Jharkhand and others, Appeal (Civil) No. 5024 of 2000 to emphasize that rightness or wrongness of the order cannot be urged in contempt proceedings and that right or wrong order has be to obeyed and flouting an order of the Court would render the party liable for contempt. Sri Saxena has extensively read the aforesaid two judgments and has submitted that while dealing with an application for contempt, the Court cannot traverse beyond the order, non-compliance of which is alleged and that in other words, the Court cannot say what should have been done or what should not have been done. He has also stated that the Contempt Court is primarily concerned with the question of contumacious conduct of the party, who is alleged to have committed default in complying with the directions in the judgment or order. He has, thus, stated that on this ground as well the instant Special Appeal is not maintainable.

Refuting the aforesaid submissions made by learned counsel for the respondents as regards the maintainability of the Special Appeal, Dr. L.P. Misra, learned counsel for the appellant has submitted that the order/judgment under appeal dated 23.10.2017 is a "judgment" within the meaning of the said expression found in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (herein after referred to as ''the Rules, 1952') and as such the instant Special Appeal would be maintainable. Dr. Misra has further stated that while passing the order under challenge herein, Hon'ble Contempt Judge has exceeded the contempt jurisdiction by issuing certain directions, such as that the petitioner-respondent shall appear for joining before the Registrar of the University on 27.10.2017 and hence such a direction cannot be construed as having been made by Hon'ble Contempt Court in exercise of contempt jurisdiction and accordingly in view of the law laid down by Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. and others vs. Chunilal Nanda and others, reported in [(2006) 5 SCC 399], this Special Appeal would be maintainable. It has further been submitted by Dr. Misra that, in fact, the direction issued in the order dated 23.10.2017 by Hon'ble the Contempt Judge requiring the petitioner to appear for joining before the Registrar of the University is a direction which cannot be said to have been issued by the Contempt Judge in exercise of its jurisdiction under the Contempt of Courts Act to punish for contempt and that in case the petitioner appears for joining in compliance of the order dated 23.10.2017 and the joining so submitted by the respondent-petitioner is accepted, the proceedings of the contempt petition would be over and hence the order under appeal attaches with itself finality of an issue and accordingly, it is a "judgment" so as to make the same amenable to the jurisdiction of this Court in the proceedings of Special Appeal under Chapter VIII Rule 5 of the Rules, 1952.

Further argument has been raised by Dr. Misra that in fact the order/judgment under appeal is an interlocutory judgment as explained in the case of Shah Babulal Khimji (supra) and it contains the quality of finality and thus, it is a judgment within the meaning of the said expression occurring in Chapter VIII and Rule 5 of the Rules, 1952. He has relied upon the meaning of the word "judgment" as explained by Hon'ble Supreme Court in para 113 of the judgment in the case of Shah Babulal Khimji (supra), according to which even an interlocutory order or judgment may have trappings and attributes of a final judgment and in the instant case the direction given by Hon'ble Contempt Judge while passing the order on 23.10.2017 attaches a finality inasmuch as once the petitioner-respondent is allowed to appear for joining and his joining is accepted, nothing more would be needed to be adjudicated upon by Hon'ble Contempt Judge in the contempt proceedings.

Dr. Misra has laid emphasis on a judgment of a Division Bench of this Court in the case of Anil Kumar Gupta vs. Pawan Kumar Singh and others, decided on 09.09.2015 (Contempt Appeal No.4 of 2014) wherein relying on the case of Midnapore Peoples' Coop. Bank Ltd and others (supra) the Division Bench has held that against an interlocutory order passed in contempt jurisdiction by this Court, though a contempt appeal under section 19 of the Contempt of the Courts Act, 1971 would not be maintainable, however, the person concerned cannot be said to be remediless as he will be at liberty to avail the remedy of intra-court appeal or the remedy of seeking special leave to appeal under Article 136 of the Constitution of India.

Reliance has also been placed by the learned counsel for the appellant on a Full Bench judgment of this Court decided on 04.09.2015 in Special Appeal No.1140 of 2008, Ashutosh Shrotriya and others vs. Vice-Chancellor, Dr. B. R. Ambedkar University & others and other connected matters, who has submitted that an appeal under Chapter VIII Rule 5 of the Rules, 1952 would lie even against a judgment made by Hon'ble Contempt Judge in the contempt jurisdiction if such a judgment has not been passed by the Contempt Court in exercise of its jurisdiction to punish the contemnor. It has been submitted that the Full Bench of this Court in the case of Ashutosh Shrotriya and others (supra) has laid down the exceptions where Special Appeal would not lie or would not be maintainable against a judgment passed by Hon'ble Single Judge of this Court. Learned counsel for the appellant has drawn attention of this Court to the aforesaid Full Bench Judgment of this Court in the case of Ashutosh Shrotriya and others (supra) wherein the conclusions drawn by Hon'ble Supreme Court in the case of Shah Babulal Khimji (supra) have copiously been quoted and relied upon.

The aforesaid submissions made and arguments advanced by the learned counsel for the parties, also needs to be considered to decide the issue of maintainability of the Special Appeal.

Right of filing Special Appeal impugning any judgment passed by Hon'ble Single Judge, before a Division Bench of this Court, has been provided in Chapter VIII Rule 5 of the Rules, 1952, which for convenience, is extracted herein below:

[5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act] of one Judge.]

There is no ambiguity that the remedy of Special Appeal before the Division Bench is available only against a "judgment" rendered by Hon'ble Single Judge. What would the expression "judgment" denote has been subject matter of various pronouncements of this Court and the law finally enunciated in respect of the principles governing the expression "judgment" can be found in the full Bench judgment of this Court in the case of Ashutosh Shrotriya and others (supra). The Full Bench in the said case while presenting the history of incorporation of Chapter VIII Rule 5 of the Rules, 1952 has referred to the Letters Patent which provided for constitution of High Court of Judicature at Allahabad and which also defined the jurisdiction and provided for, amongst other things, intra-court appeals from the judgments of Hon'ble Judges of the Court. The Full Bench has also referred to the provisions of Amalgamation Order 1948 and the Rules of the Court and after discussing the entire law on the subject, has formulated the governing principles for construing the expression "judgment" for the purposes of filing Special Appeals which are quoted as under:

"We now formulate the governing principles:

(i) The expression 'judgment' was advisedly not defined in the Letters Patents of various High Courts which conferred a right of appeal against a judgment of a Single Judge to a Division Bench of that Court;

(ii) The expression 'judgment' is not to be construed in the narrower sense in which the expression 'judgment', 'decree' or 'order' is defined in the CPC, but must receive a broad and liberal construction;

(iii) Every order passed by a trial Judge on the Original side of a High Court exercising original jurisdiction or, for that matter, by a learned Single Judge exercising the writ jurisdiction, would not amount to a judgment. If every order were construed to be a judgment, that would result in opening a flood of appeals and there would be no end to the number of orders which could be appealable under the Letters Patent;

(iv) Any interlocutory order to constitute a judgment, must possess the characteristic of finality in the sense that it must adversely affect a valuable right of a party or decide an important aspect of the trial in an ancillary proceeding. In order to constitute a 'judgment', the adverse effect on a party must be direct and immediate and not indirect or remote;

(v) In order to constitute a judgment, an interlocutory order must: (a) decide a matter of moment; or (b) affect vital and valuable rights of the parties and must also work serious injustice to the party concerned:

(vi) On the other hand, orders passed in the course of the proceedings of a routine nature, would not constitute a judgment even if they result in some element of inconvenience or hardship to one party or the other. Routine orders which are passed by a Single Judge to facilitate the progress of a case may cause some element of inconvenience or prejudice to a party but do not constitute a 'judgment' because they do not finally determine the rights or obligations of the parties. Procedural orders in aid of the progression of a case or to facilitate a decision are not judgments. "

According to the law laid down by the Full Bench of this Court in the case of Ashutosh Shrotriya and others (supra), the expression "judgment" is not to be construed in a narrower sense in which the expression "judgment" has been defined in the Code of Civil Procedure, but it must receive a broad and liberal construction. It has further been held by the Full Bench that any interlocutory order to constitute a judgment, must possess the characteristic of finality in the sense that it must adversely affect a valuable right of a party or it must decide an important aspect and further that in order to constitute a "judgment", the adverse effect on a party must be direct and immediate and not indirect or remote. The said judgment also expresses that to constitute a judgment, an interlocutory order must either decide a matter of the moment or affect vital and valuable rights of the parties and must also work serious injustice to the party concerned.

The full Bench in the case of Ashutosh Shrotriya and others (supra) has also laid down that as opposed to an interlocutory order affecting vital and valuable rights of the parties and causing serious injustice to the party concerned, if an order has been passed in the course of proceedings of routine nature, it would not constitute a "judgment" even if it results in some element of inconvenience or hardship to one party or the other. It has further laid down that the routine orders passed by a Single Judge to facilitate the progress of a case may cause some element of inconvenience or prejudice to a party but the same will not constitute a "judgment", if such an order does not finally determine the rights or obligations of the parties. The law laid down by the Full Bench is, thus, that the procedural orders passed in the aid of progression of a case to facilitate a decision are not judgments. The Full Bench of this Court in the case of Ashutosh Shrotriya and others (supra) has also taken note of the judgment of Hon'ble Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd and others (supra).

In the case of Midnapore Peoples Coop. Bank Ltd. and others (supra), Hon'ble Supreme Court after discussing the matter relating to the jurisdiction of the High Court under section 19 of the Contempt of Court Act vis-a-vis its jurisdiction of intra-court appeals against the orders passed in contempt proceedings has summarized the law in para 11 of the said judgment which is extracted herein below:

"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :

I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).

The first point is answered accordingly."

In the said case of Midnapore Peoples' Coop. Bank Ltd. and others Hon'ble Supreme Court has very categorically set out the situations where jurisdiction of High Court in an intra-court appeal can be invoked. Conclusion by Hon'ble Supreme Court in para 11 of the said judgment, as quoted above, is relevant to be noticed by us so as to arrive at the correct conclusion in the wake of arguments of the learned counsel appearing for the parties. Hon'ble Supreme Court has held therein that if the High Court decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, it is not that the aggrieved person will be without any remedy and that such an order is open to challenge in an intra-court appeal if the order passed is of a learned Single Judge and there is a provision for an intra-court appeal or by invoking the provisions of Article 136 of the Constitution by seeking special leave to appeal before Hon'ble Supreme Court.

Having regard to the submissions made and the judgments cited at the bar what falls for our consideration in this case is as to whether the direction issued by Hon'ble Contempt Judge while passing the order under appeal dated 23.10.2017 to the effect that the petitioner-respondent shall appear for joining before the Registrar of the University is challengable in this intra-court appeal filed by the appellants under Chapter VIII Rule 5 of the Rules, 1952 or not. Answer to the said issue depends on the construction of the order dated 23.10.2017 passed by Hon'ble Contempt Judge.

At this juncture, before adverting to the aforesaid issue, we may narrate certain facts which we have been able to gather from the records of this case available before us. The respondent-petitioner is an employee of Purvanchal University. On creation of Technical University in the State of Uttar Pradesh, namely, Dr. A.P.J. Abdul Kalam Technical University, he was appointed by means of the order dated 27.11.2000 against a class-III post on deputation at A.P.J. Abdul Kalam Technical University, pursuant to which the petitioner joined at the Technical University at Lucknow on 08.01.2002. We presume that the appointment of the petitioner on deputation in the borrowing University i.e. Dr. A.P.J. Abdul Kalam Technical University must have been made with the consent of the parent employer i.e. Purvanchal University. An advertisement was issued on 06.02.2011 whereby certain posts were advertised to be filled in at A.P.J. Abdul Kalam Technical University. The said advertisement became subject matter of challenge before this Court in Writ Petition No.1143 (S/S) of 2011 filed by the petitioner which was finally disposed of by this Court by means of an order dated 03.03.2011 whereby the petitioner was given liberty to approach the University-authorities for redressal of his grievances relating to his absorption in the services in the Technical University. In compliance of the said order dated 03.03.2011, the Technical University constituted a Committee to examine the grievance of the petitioner, which in its report has stated that the services of the petitioner cannot be absorbed in the Technical University. The said recommendations were accepted by the Executive Council of the Technical University and this decision dated 29.12.2012 has been challenged by the petitioner by filing writ petition No.4375 (S/S) of 2003 which is pending decision before this Court.

On 06.09.2016 the petitioner was transferred to Greater Noida Campus of the Technical University from Lucknow pursuant to which, as has been stated by the appellants in their counter affidavit filed in Writ Petition No.27467 (S/S) of 2016, the petitioner was relieved on 07.09.2016 for his joining at Noida Campus. The petitioner filed Writ Petition No.22985 (S/S) of 2016 against the order dated 06.09.2016 transferring him to Noida Campus, which is also pending disposal before this Court. However, no stay order has been passed in this writ petition.

The petitioner did not submit his joining at Noida Campus pursuant to the order dated 06.09.2016 and thereafter he was repatriated to his parent employer, namely, Purvanchal University by means of the order dated 08.10.2016. Against this order dated 08.10.2016 the petitioner has filed Writ Petition No.27467 (S/S) of 2016 in which an order for maintenance of status quo existing prior to 09.10.2016 has been passed by the Writ Court on 18.11.2016 which has been affirmed to operate till further orders of the Court on 13.04.2017. We may notice that it is the order dated 18.11.2016 as affirmed by subsequent order dated 13.04.2017 passed in Writ Petition No.27467 (S/S) of 2016 which is being said to have been defied by the appellants. We may further notice, as has been stated by the appellants in their counter affidavit filed in Writ Petition No.27467 (S/S) of 2016, that the parent employer of the respondent initially extended his leave till 31.12.2004, however, no further leave has been sanctioned and when the authorities of the Technical University vide letter dated 13.01.2006 requested the parent employer of the respondent for extension of his leave, parent employer vide letters dated 23.03.2006 and 03.05.2010 has intimated that further extension of leave of the respondent is not possible; rather he may be considered for absorption in Technical University. All these facts, may not be, though relevant for the disposal of the Special Appeal, however, we have adverted to these facts only to give a complete picture of all the relevant aspects of the matter which would help us in coming to a proper and appropriate conclusion of the issue involved here.

When the contempt petition was filed, Hon'ble Contempt Judge by means of the order dated 02.08.2017 issued notice to appellant no.2 and further provided that he would appear in person to show cause as to why contempt proceedings may not be initiated against him for disobedience of the order dated 18.11.2016. It is also noticeable that against the order dated 18.11.2016 the appellants had preferred Special Appeal (Defective) No.98 of 2017 wherein while condoning the delay in filing the Special Appeal, a coordinate bench of this Court had observed that the interim order was passed on 18.11.2016 and that the interim order has continued for almost 2 and ½ months and, therefore, it would not be appropriate to interfere in the special Appeal leaving it open to the appellant-University to file counter affidavit and a stay vacation application in the writ petition. The Division Bench while disposing of the said Special Appeal on 06.03.2017 also requested learned Single Judge to dispose of the matter as expeditiously as possible, preferably by hearing all the petitions in the week commencing 20.03.2017. The Division Bench also directed the office to list the Writ Petition No.22985 (S/S) of 2016 and Writ Petition No.4375 (S/S) of 2013 along with the Writ Petition No.27467 (S/S) of 2016. The operative portion of the said judgment dated 06.03.2017 is quoted herein below:

"On the facts, what we find is that the interim order was passed on 18th November, 2016. We have condoned the delay for the purpose of entertaining the appeal but what we find is that the interim order has continued for almost 2 1/2 months. The appellants have not even filed their counter affidavit to the said writ petition nor any stay vacation application to vacate the said interim order. In such a situation, it will not be appropriate to interfere at this stage, leaving it open to the appellant-university to file a counter affidavit and a stay vacation application in the said writ petition.

Dr. L.P. Mishra, learned counsel for the appellants, states that the counter affidavit will be filed within a week. Shri R.C. Saxena prays for three days' time to file rejoinder.

In view of this position that emerges, we are not inclined to interfere with the interim order but we request the learned Single Judge to dispose off the matter as expeditiously as possible preferably by hearing out all the petitions in the week commencing 20th of March, 2017. W.P. No.27467 (S/S) of 2016 shall be listed accordingly by the office before the learned Single Judge alongwith W.P. No.22985 (S/S) of 2016 & 4375 (S/S) of 2013.

It will be open to the appellant-university to take all possible objections including the maintainability of the writ petition."

It is also on record that in pursuance of the order dated 06.03.2017 passed by the Division Bench of this Court, writ petitions were listed before Hon'ble Single Judge, however,the matter could not be heard for one reason or the other. Allegations and counter allegations by the parties to this Special Appeal have been made as to why the hearing of the main matter i.e. Writ Petition No.27467 (S/S) of 2017 and other connected matters could not take place though counter affidavit accompanied by an application seeking vacation of the interim order dated 18.11.2016 was filed by the University-authorities. However, we refrain from going into the said issue as we deem it appropriate that same would not serve any purpose so far as the issue at hand in this case is concerned.

In the contempt proceedings, a counter affidavit was filed by the appellant no.2 taking various pleas, including the plea that the stay vacation application in the writ petition is pending with the prayer that the contempt proceedings be deferred for some time till the application for vacation of interim order is not decided by Hon'ble Writ Court..

Para 4 of the averments made in the counter affidavit filed by the appellant no.2 in the contempt proceedings is extracted herein below:

"4. That the contents of para 2 of the affidavit are firstly, not related to the depondent and secondly, the perusal of the same indicates that the same is subject matter of different writ petitions in which on behalf of the University, the Counter affidavit as well as stay vacation application wherein it is required has already been filed and the matter is pending for adjudication before Hon'ble Writ Court, where the legality of the orders under challenge would be seen. The stay vacation application is pending and has it is prayed that the contempt proceedings be deferred for sometime till the application for vacation of interim order is not decided by the Hon'ble Writ Court."

The allegation before Hon'ble Contempt Judge made by the respondent was that though the order dated 18.11.2016 has been served upon the appellants but its compliance was not made and that he was not allowed to join. Reference has been made to the averments made in para 5 of the counter affidavit filed by the appellant no.2 in the order under appeal dated 23.10.2017 wherein it was stated that the respondent had never turned up for his joining and had merely submitted a representation dated 26.11.2016 for compliance of the interim order and that the intention of the respondent-petitioner was not for joining but making allegations against the authorities. Para 5 of the counter affidavit as referred to in the order dated 23.10.2017 is also extracted herein below:

"5. That in reply to the contents of para 3 of the affidavit are not admitted as stated and in reply thereto, it is submitted that the petitioner/applicant has sent the representation on 26.11.2016 by speed post but he never ever turned up for his joining or in other words, he has physically never approached for his joining. It is further submitted that if this Hon'ble Court may go through the representation dated 26.11.2016 for compliance of the interim order dated 18.11.2016 clearly shows that the intention of the petitioner/applicant was not for joining but making allegations against the authorities. Meaning hereby, there was no intention on the part of the petitioner/applicant to join after passing of the interim order dated 18.11.2016."

While noticing the contents of para 5 of the counter affidavit in the order dated 23.10.2017, Hon'ble Contempt Judge has proceeded to observe that there was no reason as to why the respondent-petitioner would not turn up to join and that the fact that he had submitted a representation on 26.11.2016 itself shows that he was interested in compliance of the interim order. It has further been observed that once such a representation was made, response ought to have been sent by the appellants to the respondent-petitioner asking him to join. Hon'ble Contempt Judge noticed the submissions made by the learned counsel representing the respondent-petitioner that he had always been willing to join and was still willing to join as per the interim order. Noticing all these aspects, Hon'ble Contempt Judge directed the appellants to comply with the order passed by the Writ Court and further directed that the petitioner shall appear for joining before the Registrar of the University on 27.10.2017.

The order passed by Hon'ble Writ Court of which contempt has been alleged is dated 18.11.2016 whereby the status quo existing prior to 09.10.2016 was directed to be maintained. We have narrated certain facts in the earlier part of this judgment noticing the assertions made by the appellants, inter alia, to the effect that after the petitioner was transferred vide order dated 06.09.2016 to Noida Campus, he was relieved on 07.09.2016. Accordingly, what would be the status quo prior to 09.10.2016 was a question, which in our opinion, needed to be addressed by Hon'ble Contempt Judge before giving any direction for appearance of the respondent-petitioner for his joining before the Registrar of the University. We may further notice that the entire confusion appears to have been created by the appellants before the Contempt Judge for the reason that at one hand in paragraph 4 of the counter affidavit filed by the appellant no.2 it was stated that the stay vacation application was pending and it was prayed that the contempt proceedings be deferred till the application for vacation of interim order was not decided by the Writ Court, however, in para 5 and some other paragraphs of the said counter affidavit, onus of non-compliance of the order dated 18.11.2016 was attempted to be shifted upon the petitioner-respondent by saying that he had not approached the authorities, neither was he present for submission of his joining. The impression which appears to have been given by the appellants before Hon'ble Contempt Judge thus was that they were willing to allow the joining of the petitioner-respondent, however, his joining was not possible for the reason that he was not presenting himself before them, but at the same time appellants also stated that contempt proceedings need to be deferred as stay vacation application before the Writ Court was pending.

Having observed as above, what we notice in this case is that without ascertaining as to what would have been the status quo prior to 09.10.2016 in the facts of this case, Hon'ble Contempt Judge could not have issued the direction for appearance of the respondent-petitioner for joining before the Registrar of the University for the reason that for ascertaining as to whether contempt of any order passed by the Writ Court has been committed or any order has been defied or violated, it is necessary to understand the correct and appropriate meaning of the order passed by the Writ Court.

In the instant case, the order passed by the Writ court was for maintenance of the status quo existing prior to 09.10.2016. Along with the counter affidavit filed by the respondent no.2 in the contempt proceedings, copy of the stay vacation application and the counter affidavit on behalf of appellants in Writ Petition No.27467 (S/S) of 2016 was also filed which contained an assertion that the respondent-petitioner was relieved on 07.09.2016 for the purposes of his joining in Noida Campus.

Accordingly, in view of the aforesaid material available before Hon'ble Contempt Judge, before issuing the direction to the respondent-petitioner for his appearance for joining before the Registrar, the issue relating to maintenance of status quo prior to 09.10.2016 in terms of the order dated 18.11.2016 qua the assertion of the appellants that petitioner-respondent stood relieved on 7.9.2016 ought to have been determined by Hon'ble Contempt Judge. Had that been done, the order under appeal dated 23.10.2017 would have amounted to a procedural order passed in progression of the contempt proceedings. However, without determination of the said issue, the direction contained in the order dated 23.10.2017 regarding appearance of the respondent-petitioner for his joining before the Registrar of the University cannot be termed as or would not amount to be a procedural order passed for progression of the contempt proceedings. Further, in case pursuant to the order dated 23.10.2017 the respondent-petitioner is allowed his joining by the authorities of the University, nothing would remain to be decided in the contempt matter and as such we have no hesitation to hold that the direction contained in the stay order dated 23.10.2017 directing appearance of the respondent-petitioner for his joining before the Registrar will be amenable to jurisdiction of Special Appeal to be exercised by a Division Bench of this Court under Chapter VIII Rule 5 of the Rules, 1952.

For the reasons aforesaid given by us we have no hesitation to hold that in the facts and circumstances of the case the special appeal is maintainable and the order under appeal dated 23.10.2017 is amenable to jurisdiction of this Court as prescribed in Chapter VIII Rule 5 of the Rules of the Court and further that the order dated 23.10.2017 suffers from patent illegality which vitiates the same.

Resultantly, the order under appeal deserves to be set aside.

Accordingly the Special Appeal is allowed and the order dated 23.10.2017 passed by Hon'ble Contempt Judge in Contempt Petition No. 1449 of 2017 is hereby set aside. Hon'ble Contempt Judge is requested to consider the plea of the appellants to defer the proceedings of the contempt petition in view of the law laid down by the Hon'ble Supreme Court in the case of State of J & K vs. Yaqoob Khan : 1992 (4) SCC 167 and any other law on the subject. Hon'ble Contempt Judge is also requested to consider all the pleas taken by the appellants including the plea that the respondent-petitioner stood relieved on 07.09.2016 pursuant to the order dated 06.09.2016 whereby he was transferred from Lucknow to submit his joining at Noida Campus of A.P.J. Abdul Kalam Technical University, Lucknow

Before parting with the case we may also express our hope and expectation that parties herein will make all possible endeavours to get the Writ Petition no. 27467(S/S) of 2016 and other connected matters disposed off in view of the directions issued by the Division Bench of this Court on 6.3.2017 in Special Appeal ( Defective) No. 98 of 2017. For the said purpose the office is directed to list the aforesaid writ petitions at the earliest before the appropriate Bench.

We also put on record our appreciation for valuable assistance provided in this matter by learned counsel appearing for the appellants as also the learned counsel appearing for the respondent.

Date : 30.10.2017.

Om/Akhilesh.

[Rajesh Singh Chauhan, J.] [Devendra Kumar Upadhyaya, J.]