Shiv Shankar And Anr. vs Ashok Pahava And Ors.
2002 Latest Caselaw 801 Del

JUDGMENT

Devinder Gupta, J.

1. The appellant had filed an application (CCP No. 89/2000) seeking initiation of proceedings under the Contempt of Courts Act, 1971 (for short "the Act") against the respondents in not complying with the order passed on 3.11.1999 by learned Single Judge in CW.No.6692/99. The said application was dismissed on 8.9.2000 by the following order:--

"08.09.2000

Present: Mr. P.Banerjee for respondents.

CCP 89/2000

It is stated by the Ld. counsel for respondents at bar that petitioners grievance stands redressed and that they were paid the arrears of salary for relevant period.,

Petitioners have gone unrepresented today. However, given regard to the statement made by respondents counsel nothing survives in the petition which is dismissed. Proceedings are dropped.

(B.A.Khan) J."

2. As the order was passed in the absence of the appellant or his counsel, the appellant applied for recalling of the said order by filing C.M.No. 856/2000. The said application was also dismissed by the order dated 25.1.2002, which reads:-

"25.1.2002 Present: Mr. Y.P. Singh for petitioners Mr. V.K. Dewan for respondents 1, 2, and 4.

CM. 856/2000 in CCP 89/2000

By court order dated 8.9.2000 CCP 89/2000 filed by petitioners was dismissed and contempt proceedings were dropped.

Petitioner has now filed this application for review of that order on the ground that it was dismissed in the absence of petitioner and on a date when lawyers were on strike. It is also pointed out that respondent's counsel had misled the court.

Heard L/C for parties. No good ground is made out to entertain this application which is otherwise not maintainable because once contempt proceedings were dropped the question of reviving these would not arise.

Application is accordingly dismissed. However, should petitioner have any further grievance on account of any outstanding claims he could seek appropriate remedy, if so advised.

Sd/-

(B.A. Khan)

Judge

January 25, 2002 "

3. In this appeal filed under Section 19 of the Act, the appellant is seeking to have the order dated 8.9.2000 set aside.

4. At the very out set, we had called upon learned counsel for the appellant to satisfy us an regards maintainability of the appeal in view of the decision of Supreme Court in D.N. Taneja v. Bhajan Lal .

5. Learned counsel for the appellant relying upon the three decisions of the Supreme court in Murray & Co. v. Ashok Kumar Newati and Anr.; R.N. Dey and Ors. v. Bhagyabati Pramanik and Ors. and Pravin C. Shah v. K.A. Mohd. Ali and Anr. has urged that appeal is maintainable. We have considered the submission made by learned counsel for the appellant.

6. Needless to add that at an old stage after the appellant filed application seeking initiating of proceedings for Contempt of the Court decided to take proceedings against the respondents under the Contempt of Courts Act. only a show cause notice was issued to the respondents, pursuant to which the respondents put in appearance and placed their version before the Court and consequently the application was dismissed. As such the only question, which arises for consideration is that whether in the facts and circumstances of the case an appeal is maintainable against an order dismissing the application for initiation of proceedings under the Contempt of Courts Act.

7. It is well settled that an appeal is a creature of a statue. No appeal can be filed or entertained as a matter of right or as a matter o course unless a statute provides for an appeal and specifies the orders against which an appeal can be filed. On a plain reading the opening words of Section 19 of the Contempt of Courts Act provide that an appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of its jurisdiction to punish any person for contempt of court, only in that case an appeal shall be maintainable under Sub-section (1) of Section 19 of the Act. As Sub-section (1) of Section 19 provides that an appeal shall lies as of right from any order, an impression is created that an appeal has been provided under the said sub-section against any order passed by the High Court while exercising the jurisdiction contempt proceedings.

8. The word any order, as used in Sub-section (1) of Section 19 of the Contempt of Courts Act, in view of the decision of the Supreme Court in State of Maharashtra v. Mahboob S.Alibhoy and Anr. has to be read with the expression decision used in said sub-section which the High Court takes in exercise of its jurisdiction to punish for contempt. It was held that any order is not an independent of the expression decision. They have been put in an alternative from saying 'order' or 'decision'. In either case, it must be in the nature of punishment for contempt. If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under Sub-section (1) of Section 19 even against any interlocutory order passed in a preceding for contempt by the High Court which shall lead to a ridiculous result. In holding so the apex Court placed reliance on the following observations of an earlier decision in the case of Baradakanta Mishra v. Mr. Justice Gutikrushna Misra. C.J. of the Orissa H.C. AIR 1974 S.C.2266:--

".....Where the court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contemp. Such a decision would not, therefore, fall within the opening words of Section 19, Sub-section (1) and no appeal would lie against it as of right under that provisions".

9. The following observations made in D.N.Taneja's case (supra) were also relied upon and approved:-

"The right of appeal will be available under Sub-section (1) of Section 19 only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. In this connection, it is pertinent to refer to the provision of Article 215 of the Constitution, which provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 confers on the High Court the power to punish for contempt of itself. In other words, the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. As has been noticed earlier, an appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. It is submitted on behalf of the respondent and, in our opinion rightly, that the High Court exercises it s jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemner, the High Court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution".

10. The appellant cannot be said to be remediless. Even if no appeal is maintainable on behalf of a person at whose instance a proceeding for contempt had been initiated and later on dropped or whose petition for initiating contempt proceedings has been dismissed, in appropriate cases he can invoke the jurisdiction of the apex Court under Article 136 of the Constitution. In Mahboob S.Alibhoy and in D.N. Taneja's cases (supra) the Supreme Court held that on being satisfied that it was a fit case where proceeding for contempt should have been initiated, it can set aside the order passed by the High Court. In suitable cases, the Supreme Court will exercise its jurisdiction under Article 136 of the Constitution in the larger interest of the administration of justice.

11. In J.S.Parihar v. Ganpat Duggar and Ors. the question whether an appeal against any direction issued by the learned Single Judge is maintainable under Section 19 of the Act was answered holding:-

"Section 19 of the Act envisages that "an appeal shall lies as of right from any order of decision of High Court in the exercise of its jurisdiction to punish for contempt where the order for decision is that of a Single Judge, to a breach of not less than two Judges of the Court." Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemner has bee passed. In this case, the finding was that the respondents had not willfully disobeyed the order. So, there is no order punishing the respondent for violation of the orders of the High Court. Accordingly, an appeal under Section 19 would not lie."

12. The decisions relied upon by learned counsel for the appellant are not relevant for deciding the controversy. In R.N. Dey's case (supra) the question for consideration was slightly different. The High Court had after deciding to take action under the Contempt of Courts Act and having issued notice to that effect, without taking any action or discharging the rule proceeded to drop the notice. Appeal was held maintainable. But the ratio of the said decision is not applicable to the facts and circumstances of the case in which the learned Single Judge at no point of time had decided to take action against the respondents.

We are of the view that in the facts and circumstances, the appeal against the impugned order is not maintainable. Needless to add that in the order passed on 25.1.2002 learned Single Judge expressly clarified that any further grievance on account of any outstanding claims, the appellant could seek appropriate remedy, if so advised.

Dismissed.