Dolly Kapoor & Anr vs Sher Singh Yadav & Ors
2012 Latest Caselaw 1333 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 28th February, 2012
+                                LPA 164/2012

DOLLY KAPOOR & ANR                                         ..... Appellants
                Through:               Mr. K.C. Mittal with Mr. R.K. Jain,
                                       Advs.

                                   Versus

SHER SINGH YADAV & ORS                 ..... Respondents
                 Through: None.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This Intra-Court appeal impugns the order dated 23rd August, 2011 of the Learned Single Judge refusing to issue notice of and dismissing Cont. Cas(C) No.219/2011 (filed by the appellants) arising out of order dated 5th September, 2008 of this Court in CM(M) No.958/2008 under Article 227 of the Constitution of India preferred by the appellants. Since Section 19 of the Contempt of Courts Act, 1971 provides for an appeal to this Bench only when the decision of the Single Judge is to punish for contempt and not when the decision is to dismiss the contempt petition, we have at the outset enquired from the counsel for the appellant as to how the

present appeal is maintainable.

2. The counsel for the appellant has contended that this appeal is preferred not under Section 19 of the Contempt of Courts Act but under the Letters Patent of this Court. Our attention has been invited to Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda (2006) 5 SCC 399.

3. We are however unable to agree. It has been held in Fuerst Day Lawson Vs. Jindal Exports Ltd. JT (2011) 7 SC 469 that where a special self contained statute, as the Arbitration Act in that case, does not provide for Intra-Court appeal, the provision of Letters Patent cannot be invoked to negate the statute to maintain such appeal. It was further held that a right of an appeal under the Letters Patent can be taken away by an express provision in an appropriate legislation - the express provision need not refer to Letters Patent; but if on a reading of the provision it is clear that all further appeals are barred, then even Letters Patent would be barred. We are of the view that the Contempt of Courts Act, 1971 promulgated to "define and limit the powers of certain Courts in punishing contempts of Court and to regulate their procedure in relation thereto" is a self contained Code and the same having provided for appeal only against order of punishment for contempt and not against the order refusing to issue notice of contempt has taken away the right if any of appeal under the Letters Patent.

4. As far as the order in the instant case is concerned, it is not of dismissal of contempt petition, after having initiated contempt proceedings, but of refusal to exercise contempt jurisdiction. The Supreme Court in Baradakanta Mishra v. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court (1975) 3 SCC 535 held that the exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemnor, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt, it is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt; the exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. It was further held that 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 contempt. The same view was reiterated in Purshotam Dass Goel v. Hon'ble Mr. B.S. Dhillon (1978) 2 SCC 370. Again in D. N. Taneja v. Bhajan Lal (1988) 3 SCC 26 it was held that when the High Court acquits a contemnor, the High Court does not exercises its jurisdiction for contempt.

5. We are of the view that an order refusing to entertain a contempt petition and / or to issue notice thereof is not a judgment for the same to be

appealable under Letters Patent or under Section 10 of the Act. We are also of the view that the policy enshrined in Section 19 of the Act of limiting appeals only to cases where punishment for contempt is made out is in public interest. It intends to curtail vexatious litigation. If a party to a litigation could pursue applications in Courts of appeal to commit his opponents to contempt of Courts, when the trial Court whose process, it was alleged to have disobeyed was of the opinion that no vindication of its own order was necessary, would amount to encouraging vexatious litigation. Refusal to exercise contempt jurisdiction does not determine any right and hence is not a judgment. As aforesaid, such refusal is in the exercise of discretionary powers and refusal of such exercise does not constitute a judgment as defined in Shah Babulal Khimji v. Jayaben D. Kania (1981) 4 SCC 8. A complainant or a relator in a contempt proceeding, who moves the machinery of the Court for punishing an alleged contemnor, only brings to the notice of the Court certain facts which, in his opinion, constitute a contempt. He has no other role. The proceedings thereafter are between the Court and the alleged contemnor and if the Single Judge, of whose order contempt is alleged, is of the opinion that no case for entertaining contempt is made out, the Single Judge does not determine any right of the complainant / relator. We are supported in this view by the Full Bench of the Bombay High Court in The Collector of Bombay v. Issac Penhas MANU/MH/0027/1947 (followed recently in The Bombay Diocesan Trust Association Pvt. Ltd. v. The

Pastorate Committee of the Saint Andrews Church MANU/MH/0520/2008) as also by the Division Bench of the Madras High Court in Shantha V. Pai v. Vasanth Builders, Madras MANU/TN/ 0147/1990. We may notice that a Division Bench of this Court in Inderjeet Singh (Since Deceased) v. R.K. Singh MANU/DE/0064/2009 also, after noticing Midnapore Peoples' Co-op. Bank Ltd. (supra) held the Intra-Court appeal against the order discharging the contempt notice to be not maintainable. The High Court of Punjab & Haryana also, in Sh. A.S. Chatha v. Malook Singh MANU/PH/0192/1994 has held the order in a contempt petition, taking a lenient view and giving another chance to comply with the order, to be not a „judgment‟ and appeal under letters patent to be not maintainable thereagainst. To the same effect is the view of the High Court of Himachal Pradesh in Kundan Ram v. Darshan MANU/HP/0080/1994

6. The Restatement of Indian Law - Contempt of Court published by the Supreme Court Project Committee Indian Law Institute in this regard in the year 2011 has however in para 9.6 stated that there is lack of clarity on whether an order not appealable under Section 19 may still be appealable under Letters Patent. It has further been observed that most of the High Courts have taken the position that in view of the appeal provided in Section 19, the letters patent will not be applicable.

7. As far as the judgment cited by the counsel for the appellant is concerned, we are unable to cull out any such proposition therefrom rather the Apex Court in the said judgment framed the following questions as arising for consideration therein:-

"(i) Where the High Court, in a contempt proceedings, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under section 19 of the Contempt of Courts Act, 1971 ? If not, what is the remedy of the person aggrieved?

(ii) Where such a decision on merits, is rendered by an interlocutory order of a learned Single Judge, whether an intra-court appeal is available under clause 15 of the Letters Patent?

(iii) In a contempt proceeding initiated by a delinquent employee (against the Enquiry Officer as also the Chairman and Secretary in-charge of the employer-Bank), complaining of disobedience of an order directing completion of the enquiry in a time bound schedule, whether the court can direct

(a) that the employer shall reinstate the employee forthwith;

(b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that the Enquiry Officer shall cease to be the Enquiry Officer and the employer shall appoint a fresh Enquiry Officer; and (e) that the suspension shall be deemed to have been revoked ?"

and answered the same as under:-

"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)."

8. It would thus be seen that it was categorically held that appeal to a Division Bench from an order of the Single Judge lies only when the order is of punishing for contempt and not when the order is of declining to initiate proceedings for contempt or dropping the proceedings for contempt or of acquitting or exonerating the contemnor. It was further held by the Apex Court that the appeal under the Letters Patent as distinct from under Section 19 of the Contempt of Courts Act may lie also against orders incidental to or connected with the contempt proceedings. However in the instant case the order declining to initiate contempt proceedings cannot be said to be incidental or connected to the contempt proceedings and cannot thus be held to be appealable. It may also be noted that the proceedings, of order wherein contempt is averred, were under Article 227 of the Constitution of India; no appeal under letters patent lies against the order in such proceedings.

9. The appeal is therefore not maintainable and is dismissed as such. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE FEBRUARY 28, 2012 pp/gsr..