Delhi High Court
Shenzen Konka Telecomn. vs A2Vp Distributors P. Ltd. on 17 December, 2009
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.471/2009 and CM No.14201/2009
# SHENZEN KONKA TELECOMN. ..... Appellant
Through: Mr. Rajiv Mehra, Sr. Adv.
with Ms.Rajdipa Bihura &
Mr. Narendra Singh Bisht,
Advs.
versus
$ A2VP DISTRIBUTORS P. LTD. ...... Respondent
^ Through: Mr. Ashvini Mata, Sr. Adv.
with Ms. Deepali Chandhoke,
Ms. Kamal Preet Kaur Rana
& Mr.Manmeet Arora, Advs.
for Respondent Nos.1 and 2.
WITH
FAO(OS) No.577/2009 and CM No.16868/2009
INDRAJIT GHOSH ...... Appellant
Through: Mr. Rajiv Mehra, Sr. Adv.
with Ms.Rajdipa Bihura &
Mr. Narendra Singh Bisht,
Advs.
versus
A2VP DISTRIBUTORS P. LTD. ...... Respondent
Through: Mr. Ashvini Mata, Sr. Adv.
with Ms. Deepali Chandhoke,
Ms. Kamal Preet Kaur Rana
& Mr.Manmeet Arora, Advs.
for Respondent Nos.1 and 2.
Date of Hearing : December 10, 2009
% Date of Decision : December 17, 2009
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR
FAO(OS)471/09 & 577/09 Page 1 of 8
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. Both these Appeals assail the Order dated 28.8.2009 of
the learned Single Judge which ostensibly allows an application
under Order I Rule 10 of the Code of Civil Procedure, 1908
('CPC' for short) filed by the Petitioner in CCP No.59/2006 but,
in actual legal effect, merely issues notice to the freshly
mentioned alleged contemnors. Behind the smoke screen of the
application for impleadment of parties, avowedly created by the
Respondent, the prayers in the application is for the issuance of
notices to the newly added parties to show cause as to why
contempt proceedings be not initiated against them. If the
Appeal were to be allowed, it would tantamount to mandating
that a notice to show cause as to why contempt proceedings
should not be initiated against a party should precede or be a
prelude to the issuance of a notice to show cause as to why
contempt proceedings should not be initiated. This is a
tautological situation and, therefore, the Objections of the
Appellant defy logic.
2. In Purshotam Das Goel -vs- B.S. Dhillon, AIR 1978 SC
1014 the main question which had fallen for decision was
whether an order merely initiating contempt proceedings by
issuance of a notice under Section 17 of the Contempt of Courts
Act, 1971 ('Contempt Act' for short) could be assailed by way of
an Appeal. The contention that had been canvassed was that
that Appeal was barred by limitation by virtue of Section 20 of
the Contempt Act after the expiry of one year from the date on
which the contempt was alleged to have been committed. It was
in that context that the law was enunciated in the following
passage:-
It would appear from a plain reading of the section
that an appeal shall lie to this Court as a matter of right
from any order or decision of a bench of the High Court
if the order has been made in the exercise of its
jurisdiction to punish for contempt. No appeal can lie as
a matter of right from any kind of order made by the
High Court in the proceeding for contempt. The
proceeding is initiated Under Section 17 by issuance of
a notice. Thereafter, there may be many interlocutory
orders passed in the said proceeding by the High Court.
It could not be the intention of the legislature to provide
for an appeal to this Court as a matter of right from
each and every such order made by the High Court. The
order or the decision must be such that it decides some
bone of contention raised before the High Court
affecting the right of the party aggrieved. Mere
initiation of a proceeding for contempt by the issuance
of the notice on the prima facie view that the case is a
fit one for drawing up the proceeding, does not decide
any question. This Court, for the first time, cannot be
asked in such an appeal to decide whether the person
proceeded against has committed contempt of the High
Court or not. The matter has to be decided either finally
or, may be even at an earlier stage an order is made,
which does decide a contention raised by the alleged
contemner asking the High Court to drop the
proceeding. It is neither possible, nor advisable, to
make an exhaustive list of the type of orders which may
be appealable to this Court under Section 19. A final
order, surely, will be appealable. Our attention was
drawn by Mr. Mohan Behari Lal, to Section 20 of the
Act which provides :
No Court shall initiate any proceedings for
contempt, either on its own motion or otherwise,
after the expiry of a period of one year from the date
on which the contempt is alleged to have been
committed.
He submitted that initiation of the proceeding by
the High Court will be without jurisdiction if it is in
violation of Section 20. It may be so. If the alleged
contemner in response to the notice appears before the
High Court and asks it to drop the proceeding on the
ground of its being barred under Section 20 of the Act
but the High Court holds that the proceeding is not
barred, it may well be that an appeal would lie to this
Court under Section 19 from such an order although the
proceeding has remained pending in the High Court. We
are not called upon to express our final opinion in
regard to such an order, but we merely mention this
type of order by way of an example to show that even
orders made at some intermittent stage in the
proceeding may be appealable under Section 19. In our
considered judgment, an order merely initiating
the proceeding without anything further, does not
decide anything against the alleged contemner and
cannot be appealed against as a matter of right
under Section 19. In a given case special leave may be
granted under Article 136 of the Constitution from an
order initiating the proceeding. But that is entirely a
different matter. What we are deciding in this case is
that the present appeal filed under Section 19(1) of the
Act does not lie and is incompetent. (Emphasis supplied)
3. The same conclusion has been arrived at in Union of India
-vs- Mario Cabral e Sa, AIR 1982 SC 691 and Midnapore
Peoples' Coop. Bank Ltd. -vs- Chunilal Nanda, (2006) 5 SCC
399.
4. The endeavour of Mr. Rajiv Mehra, learned Senior
Counsel appearing on behalf of the Appellants, is to traverse the
merits of the case so as to commend to us that the Appellants
are not necessary parties to the lis. We think it necessary to
immediately clarify that the lis before the learned Single Judge
at the stage when the impugned Order was passed, was not to
finally adjudicate upon the rival contentions but merely to issue
notice to the alleged contemnors in order to provide them with
an opportunity of being heard. In doing so the Judge who has
been petitioned in the matter, should delve into the dispute only
to the extent of satisfying himself that a case had been made out
by the Petitioner indicating prima facie that the persons arrayed
as Respondents may have violated a particular Order of the
Court.
5. A conundrum has been created primarily because the
Respondents had predicated their application under Order I
Rule 10 of the CPC and thereby imparted to their prayer the
incorrect complexion of the impleadment of a party. We
reiterate that at the stage at which the impugned Order was
passed, only a show cause notice had been issued. On the
appearance of the alleged contemnors, including the Appellant
before us, their Objections, nay defence, to the charge of having
committed contempt of Court, brought to the notice of the Court
by the Petitioner would be considered. In Purshotam Das
Goel, the main plank of the argument did not even touch upon
the merits of the case but rested on Section 20 of the Contempt
Act viz. that the action having been brought after one year of
the commission of the alleged contemptuous act was barred.
Since that Objection did not touch upon the factual matrix, it
could have been decided as a Preliminary Issue by the Appellate
Court, but their Lordships nonetheless directed the parties to
revert to the Court that had issued the notice.
6. It is trite that the Court is not bound to apply only the law
or the provisions cited by a Petitioner/Applicant in the caption to
the application. The Court is duty-bound to apply the correct
law. The law is settled that an order will not become bad in law
if while making it a wrong provision of law was invoked, though
the power to make the same lay in another provision (See P.
Balakotaiah -vs- UOI, AIR 1958 SC 232, State of Karnataka -vs-
Muniyalla, 1985 (1) SCC 196, B.S.E. Broker's Forum -vs- SEBI,
AIR 2001 SC 1010 and Dinesh Dalmia -vs- CBI, 2007 (8) SCC
770). Shorn and reduced to its basics, the endeavour of the
Respondent was to bring the circumstances to the notice of the
learned Single Judge in order to prevail upon the Court to issue
a show cause notice. A holistic and correct reading of the
impugned Order cannot but lead to the conclusion that this is
what the learned Single Judge has done. As in Purshotam Das
Goel, it is for the Appellants to appear before the learned Single
Judge and plead facts, as well as the law, in an effort to
convince the Court that the show cause notice issued to them
should be recalled or discharged. It is not for the Appellate
Court to enter upon this controversy.
7. We have brought it to the notice of learned Senior Counsel
for the Appellants that all the parties before the learned Single
Judge have not been impleaded in the present Appeal, thereby
rendering it not maintainable. Since we have already heard
arguments, we think it expedient to address the entire
controversy squarely so that multiplicity of proceedings may be
avoided. Therefore, we have ignored this technical
transgression.
8. For the reasons adumbrated above, we are of the opinion
that the Appeals are devoid of merit. We have taken pains not to
articulate any observations on the merits of the case since the
proper stage and forum for this exercise is before the learned
Single Judge.
9. The Appeals are dismissed, but we desist from imposing
costs. Pending applications also stand dismissed.
( VIKRAMAJIT SEN )
JUDGE
December 17, 2009 ( SUNIL GAUR )
tp JUDGE
