Gujarat High Court
Purshottambhai Sadabhai Parmar vs State Of Gujarat on 17 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14658 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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PURSHOTTAMBHAI SADABHAI PARMAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MR NIRAD D BUCH(4000) for the Petitioner(s) No. 1
MS. POOJA ASHAR, AGP for the Respondent(s) No. 1,2,5
MR HS MUNSHAW(495) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR.JUSTICE D.N.RAY
Date : 17/02/2025
ORAL JUDGMENT
1. The short issue that arises for determination by this Court is
whether the judgment debtor's liability to pay an ascertained sum of
money shall continue even after the said judgment debtor has been
exonerated of contempt for not paying the said ascertained sum of
money.
2. Heard learned Advocate Mr. Nirad D.Buch for the petitioner;
learned Assistant Government Pleader Ms. Pooja Ashar for the
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respondent Nos. 1, 2 and 5 and learned Advocate Mr. H.S.Munshaw
for the respondent No.3.
3. In writ petition being Special Civil Application No. 12336 of
2013, the petitioner had prayed for the following reliefs :-
"8 (a) issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction
directing the respondents to immediately complete the exercise of
fixing the pay of the petitioner after granting him the benefit of
third higher pay scale and consequently to fix the pension of the
petitioner on that basis;]
(b) issue a writ of mandamus or a writ in the nature of mandamus
or any other appropriate writ, order or directing the Fifth
respondent, Local Audit Fund Office, Patan to verify the
computation submitted by respondent No.3 vide order dated 31
December 2012 passed by respondent No.3 and to accord sanction
to the same forthwith;
(c) issue a writ of mandamus or a writ in the nature of mandamus
or any other appropriate writ, order or direction directing the
respondents to pay interest on the delayed payment of arrears and
pension on the basis of Government Resolution dated 05.07.1991
at the rate of 12% per annum with effect from the date of
retirement of the petitioner till actual payment within a period of 3
months considering the fact that the petitioner is aged 78 years.
(d) Pending admission, hearing and final disposal of the present
petition, the Honourable Court may be pleased to direct the
respondents to deposit the amount of interest and the difference
amount as calculated on the basis of refixation of the salary of the
petitioner before this Honourable Court forthwith.
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(e) Grant such other and further relief as the Hon'ble Court may
deem fit in the facts and circumstances of the case.
(f) To allow this petition with costs."
4. The said petition had come to be allowed by order dated
05.04.2016 by the learned Single Judge [as His Lordship then was]
by calculating the benefits to be granted to the petitioner in
paragraph No.8 of the order therein which reads as under :-
"8. The position as on today is as under:-
Details of Amount towards Date of the Interest at the rate
the difference difference of 10%
difference
Difference in 64,479/- 11.01.1974 to 2,35,242/-
pay 16.06.2010 (36
years 5 months)
Difference in 20,764/- 01.06.1987 to 49,804/-
higher pay 17.05.2011 (24
of 9 years years)
Difference in 24,191/- 01.06.1987 to 61,894/-
higher pay 20.01.2014 (26
of 18 years years 6 months)
Difference in 2,31,704/- 01.06.1987 to 4,98,155/-
higher pay 01.10.2014 (21
of 27 years years 6 months)
Total: 8,45,095/-
4.1. Thereafter, the consequent directions at paragraph No.10 of
the said order read as under:-
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"10. In the result, this application succeeds and is hereby
allowed. The respondents are directed to make good the
amount of interest at the rate of 10% per annum within a
period of two months from the date of receipt of this order.
Direct service is permitted."
5. Being aggrieved by the non payment of the aforesaid sum
within the period granted by this Court, the petitioner preferred a
Contempt Petition being Misc. Civil Application No. 995 of 2018 in
Misc. Civil Application No.2333 of 2018 in Special Civil
Application No. 12336 of 2013. The respondent No.3 i.e., The
District Primary Education Officer, Patan, District Panchayat, Patan,
responded to the Contempt Petition by filing an affidavit where,
inter alia, it has been stated as under:-
"It is submitted that the contentions raised by the petitioner that he
is entitled to an amount of Rs.8,45,095/- are not substantiated by
any documentary evidence. It is most respectfully submitted that
even the Hon'ble Court has also ordered on 05/04/2016 to pay the
interest @10% p.a.. The deponent submits that the interest payable
is calculated accordingly and as stated herein above, an amount of
Rs.4,50,164/- is paid though it has come out that the petitioner is
entitled for an amount of Rs.3,31,104/- as per the orders of the
Hon'ble Court In similar matters and accordingly he is overpaid
an amount of Rs.1,19,060/-. The deponent submits that the
calculation of Rs.8,45,095/- put forward by the petitioner, is
contrary to the record and it would be so clear from a statement of
calculation prepared by the respondent authorities."
6. The said Misc. Civil Application No. 995 of 2018 came to be
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disposed of vide order dated 14.02.2019 by the Hon'ble Division
Bench of this Court which passed the following order :-
In view of affidavit-in-reply, we find that there is substantial
compliance of the order under contempt, and in absence of any
willful or deliberate disobedience, the present contempt
proceedings are terminated. Notice is discharged.
7. Soon thereafter, the petitioner filed the present Special Civil
Application with the following prayers :-
"(A) Be pleased to admit this petition.
(B) Be pleased to issue a writ of certiorari or any other
appropriate writ, order or direction, directing the respondent
authorities to pay the remaining amount as stated in the
communication at Annexure C to the petitioner forthwith;
(C) Pending admission, hearing and final disposal of the petition,
be pleased to direct the respondent Authorities to explain the
respondent Authorities to explain for delaying the legitimate
service benefits to the petitioner;
(D) Any other and further reliefs may be granted in favour of
petitioner as this Hon'ble Court may deem fit and proper under the
circumstances of the case with cost."
8. This Court by order dated 24.09.2019 had issued Notice
returnable on 29.11.2019 and considering the age of the petitioner,
as referred to in Order dated 28.03.2023, this Court after issuing
Rule, directed the matter to be placed for final hearing in the month
of July 2023.
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9. Mr. Nirad D. Buch, learned advocate appearing for the
petitioner has submitted that although the Hon'ble Division Bench
has absolved the respondents of contempt, the present issue of
outstanding payment continues to remain and there is nothing on
record to indicate that the entire payment as contemplated by the
order dated 05.04.2016, has been paid to the petitioner.
10. Mr.H.S.Munshaw, learned advocate appearing for the
respondent No.3 on the other-hand submits that the order dated
14.02.2019 of the Hon'ble Division Bench has not only given the
said respondent a clean chit on the issue of contempt but also
concludes the issue of payment in favour of the respondent and
against the petitioner.
10.1 Mr. Munshaw, learned advocate referred to affidavit-in-reply
dated 12.02.2020 particularly to "Annexure B & C" to submit that it
will be clear from the detailed calculations submitted by the
respondent No.3 that after paying an amount of Rs.4,50,164/- , the
petitioner has actually been overpaid a sum of Rs.1,19,060/-.
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Therefore, not only the present petition should be dismissed, but,
the Respondent No.3 is well within its rights to recover the excess
amount from the petitioner.
10.2. According to Mr.Munshaw, the learned Single Judge by the
order dated 05.04.2016 had not directed the payment of any specific
amount to the petitioner. Alternatively, if the amount stated in
paragraph No.8 is to be taken as the amount directed to be paid to
the petitioner, the same is clearly an error committed by the learned
Single Judge, inasmuch as, the calculations at "Annexure B and C"
to the reply of the respondent No.3 to the present petition would
show that the respondent has already paid more than the due amount
to the petitioner and the petitioner is not only disentitled for any
further payment but a sum of Rs.1,19,060/- is required to be
recovered from the petitioner in view of excess payment made as per
the calculations of the respondent No.3.
11 DISCUSSION & FINDINGS :-
11.1 On a specific query of the Court as to whether the order
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dated 05.04.2016 has been sought to be either reviewed or appealed
from, Mr. Munshaw fairly submitted the same has not been done.
Mr. Munshaw, learned advocate further submitted that in view of the
fact that in the Contempt Petition, the Hon'ble Division Bench of
this Court having held that there is no contempt and there is
"substantial compliance" of the order which was under contempt,
there is no merit whatsoever in the present petition. This Court is of
the view that the order dated 05.04.2016 contained a clear direction
by this Court to the respondent No.3 to make a payment of
Rs.8,45,095/-, along with interest at the rate of 10% per annum
within a period of two months from the date of receipt of the said
order. The respondents on the said date had two options :-
(a) to seek review of the said order if it felt that the order was
erroneous on the face of the records before the said Court, or
(b) to file an appeal if it felt that the order was otherwise
erroneous.
11.2 Having exercised neither of the options before it, the
respondents must be said to have accepted the order dated
05.04.2016 as it stood. Nothing can be added to or subtracted from
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the said order at this stage in the absence of any challenge to the
same.
12. As far as the order in the Contempt Petition is concerned, this
Court is of the opinion that the same seems to have been passed on
the basis that a substantial sum of Rs.4,50,164/- was already paid to
the petitioner as on the date of the respondent's affidavit before the
Hon'ble Division Bench and therefore, it appears to this Court that
the Hon'ble Division Bench was under the impression that there was
no wilful or deliberate disobedience of the said order, but rather an
issue of what exact sum of money was required to be paid to the
petitioner. The Hon'ble Division Bench however did not record, as
specifically pleaded by the respondent No.3, that the order dated
05.04.2016 has been fully complied with or that the petitioner has
been overpaid, the aforesaid two facets being the pillars of the
submissions of the respondent No.3 before the Hon'ble Division
Bench.
13. In that view of the matter, this Court is of the opinion that the
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order dated 14.02.2019 merely absolves the respondent No.3 from
contempt of Court but does not absolve the respondent No.3 from
the remainder of the liability of paying the outstanding amount still
due and payable to the petitioner as per the order dated 05.04.2016
after deducting a sum of Rs.4,50,164/-, as already paid by it.
14. The reliance of Mr.Munshaw, learned advocate on the
calculations in the present petition is a classic example of abuse of
process, commonly known as "the Henderson Principle". The
Hon'ble Apex Court in a recent judgment in the case of CELIR
LLP v. Mr. Sumati Prasad Bafna and Ors., reported in 2024
SCC Online SC 3727 has categorically held as under:
"135. The 'Henderson Principle' is a foundational doctrine in
common law that addresses the issue of multiplicity in litigation. It
embodies the broader concept of procedural fairness, abuse of
process and judicial efficiency by mandating that all claims and
issues that could and ought to have been raised in a previous
litigation should not be relitigated in subsequent proceedings. The
extended form of res-judicata more popularly known as
'Constructive Res Judicata' contained in Section 11, Explanation
VII of the CPC originates from this principle.
136. In Henderson v. Henderson reported in [1843] 3 Hare 999,
the English Court of Chancery speaking through Sir James
Wigram, V.C. held that where a given matter becomes the subject
of litigation and the adjudication of a court of competent
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jurisdiction, the parties so litigating are required to bring forward
their whole case. Once the litigation has been adjudicated by a
court of competent jurisdiction, the same parties will not be
permitted to reopen the lis in respect of issues which might have
been brought forward as part of the subject in contest but were
not, irrespective of whether the same was due to any form of
negligence, inadvertence, accident or omission. It was further held,
that principle of res judicata applies not only to points upon which
the Court was called upon by the parties to adjudicate and
pronounce a judgement but to every possible or probable point or
issue that properly belonged to the subject of litigation and the
parties ought to have brought forward at the time. The relevant
observations read as under: -
"In trying this question I believe I state the rule of the Court
correctly when I say that, where a given matter becomes the
subject of litigation in, and of adjudication by, a Court of
competent jurisdiction, the Court requires the parties to that
litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same
parties to open the same subject of litigation in respect of
matter which might have been brought forward as part of
the subject in contest, but which was not brought forward,
only because they have, from negligence, inadvertence, or
even accident, omitted part of their case. The plea of res
judicata applies, except in special cases, not only to points
upon which the Court was actually required by the parties to
form an opinion and pronounce a judgment, but to every
point which properly belonged to the subject of litigation,
and which the parties, exercising reasonable diligence,
might have brought forward at the time. [...]"
(Emphasis supplied)
137. The above proposition of law came to be known as the
'Henderson Principle' and underwent significant evolution,
adapting to changing judicial landscapes and procedural
requirements. The House of Lords in Johnson v. Gore Wood &
Co reported in [2002] 2 AC 1, upon examining the 'Henderson
Principle' authoritatively approved it with the following
observations: -
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(i) Lord Bingham of Cornhill integrated the principle with the
broader doctrine of abuse of process and held that the bringing of
a claim or the raising of a defence in later proceedings which
ought to have been raised earlier will not always be hit by this
principle, but rather will apply where such point is sought to be
raised as an additional or collateral attack on a previous decision
and the bringing forth of such ground amounts to misusing or
abusing the process of the court or as a means for unjust
harassment of a party. The relevant observations read as under: -
" Henderson v Henderson abuse of process, as now
understood, although separate and distinct from cause of
action estoppel and issue estoppel, has much in common
with them. The underlying public interest is the same : that
there should be finality in litigation and that a party should
not be twice vexed in the same matter. This public interest is
reinforced by the current emphasis on efficiency and
economy in the conduct of litigation, in the interests of the
parties and the public as a whole. The bringing of a claim or
the raising of a defence in later proceedings may, without
more, amount to abuse if the court is satisfied (the onus
being on the party alleging abuse) that the claim or defence
should have been raised in the earlier proceedings if it was
to be raised at all. I would not accept that it is necessary,
before abuse may be found, to identify any additional
element such as a collateral attack on a previous decision or
some dishonesty, but where those elements are present the
later proceedings will be much more obviously abusive, and
there will rarely be a finding of abuse unless the later
proceeding involves what the court regards as unjust
harassment of a party. It is, however, wrong to hold that
because a matter could have been raised in earlier
proceedings it should have been, so as to render the raising
of it in later proceedings necessarily abusive. That is to
adopt too dogmatic an approach to what should in my
opinion be a broad, merits based judgment which takes
account of the public and private interests involved and also
takes account of all the facts of the case, focusing attention
on the crucial question whether, in all the circumstances, a
party is misusing or abusing the process of the court by
seeking to raise before it the issue which could have been
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raised before. As one cannot comprehensively list all
possible forms of abuse, so one cannot formulate any hard
and fast rule to determine whether, on given facts, abuse is
to be found or not [...]"
(Emphasis supplied)
(ii) Lord Millett construing the Principle held that it does not
belong to the doctrine of res-judicata in the strict sense but rather
was analogous to the doctrine, as it goes a step further to
encompass even those proceedings that either culminated into a
settlement or issues which had never been adjudicated previously
in order to protect the process of the court from abuse and the
defendant from oppression. The relevant observations read as
under:-
"As the passages which I have emphasised indicate, Sir
James Wigram V-C did not consider that he was laying
down a new principle, but rather that he was explaining the
true extent of the existing plea of res judicata. Thus he was
careful to limit what he was saying to cases which had
proceeded to judgment, and not, as in the present case, to an
out of court settlement. Later decisions have doubted the
correctness of treating the principle as an application of the
doctrine of res judicata, while describing it as an extension
of the doctrine or analogous to it ... But these various
defences [res judicata, issue or cause of action estoppel] are
all designed to serve the same purpose : to bring finality to
litigation and avoid the oppression of subjecting a defendant
unnecessarily to successive actions. While the exact
relationship between the principle expounded by Sir James
Wigram V-C and the defences of res judicata and cause of
action and issue estoppel may be obscure, I am inclined to
regard it as primarily an ancillary and salutary principle
necessary to protect the integrity of those defences and
prevent them from being deliberately or inadvertently
circumvented.
In one respect, however, the principle goes further than the
strict doctrine of res judicata or the formulation adopted by
Sir James Wigram V-C, for I agree that it is capable of
applying even where the first action concluded in a
settlement. Here it is necessary to protect the integrity of the
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settlement and to prevent the defendant from being misled
into believing that he was achieving a complete settlement of
the matter in dispute when an unsuspected part remained
outstanding.
However this may be, the difference to which I have drawn
attention is of critical importance. It is one thing to refuse to
allow a party to relitigate a question which has already been
decided; it is quite another to deny him the opportunity of
litigating for the first time a question which has not
previously been adjudicated upon. This latter (though not
the former) is prima facie a denial of the citizen's right of
access to the court conferred by the common law and
guaranteed by article 6 ... While, therefore, the doctrine of
res judicata in all its branches may properly be regarded as
a rule of substantive law, applicable in all save exceptional
circumstances, the doctrine now under consideration can be
no more than a procedural rule based on the need to protect
the process of the court from abuse and the defendant from
oppression [...]"
(Emphasis supplied)
138. In Virgin Atlantic Airways Ltd. v. Zodiac Seats UK
Ltd. reported in [2014] AC 160 Lord Sumption JSC further
expounded the 'Henderson Principle' as although separate and
distinct from cause of action estoppel or res judicata yet having the
same underlying public interest that there should be finality in
litigation and that a party should not be twice vexed in the same
matter. The relevant observations read as under: -
"The principle in Henderson v Henderson has always been
thought to be directed against the abuse of process involved
in seeking to raise in subsequent litigation points which
could and should have been raised before. There was
nothing controversial or new about this notion when it was
expressed by Lord Kilbrandon in the Yat Tung case [1975]
AC 581. The point has been taken up in a large number of
subsequent decisions, but for present purposes it is enough
to refer to the most important of them, Johnson v Gore-
Wood & Co [2002] 2 AC 1, in which the House of Lords
considered their effect. This appeal arose out of an
application to strike out proceedings on the ground that the
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plaintiffs claim should have been made in an earlier action
on the same subject matter brought by a company under his
control. Lord Bingham of Cornhill took up the earlier
suggestion of Lord Hailsham of St Marylebone LC in
Vervaeke (formerly Messina) v Smith [1983] 1 AC 145, 157
that the principle in Henderson v Henderson was "both a
rule of public policy and an application of the law of res
judicata". He expressed his own view of the relationship
between the two at p. 31 as follows: "Henderson v
Henderson abuse of process, as now understood, although
separate and distinct from cause of action estoppel and issue
estoppel, has much in common with them. The underlying
public interest is the same: that there should be finality in
litigation and that a party should not be twice vexed in the
same matter. This public interest is reinforced by the current
emphasis on efficiency and economy in the conduct of
litigation, in the interests of the parties and the public as a
whole"."
(Emphasis supplied)
139. Even in a common law action it was said by Blackburn, J.: "I
incline to think that the doctrine of res judicata applies to all
matters which existed at the time of giving of the judgment, and
which the party had an opportunity of bringing before the
Court." [See: Newington v. Levy reported in (1870) 6 CP 180
(J)].
The submissions of Mr. Munshaw, learned advocate based on
the calculation at "Annexure B & C" clearly fall foul of the
"Henderson Principle". There is no evidence to show that the
Hon'ble Single Judge in SCA No. 12336 of 2013 was shown these
calculations, which definitely existed contemporaneously.
Subsequently, the Respondent No.3 wants a second bite of the
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cherry, which clearly tantamounts to an abuse of the process, and
hence, impermissible.
15. There could be two situations under which the order dated
05.04.2016 came to be passed:-
(A) By rejecting the calculations submitted by the respondent
No.3, or
(B) by the Court on its own motion, in the absence of the
calculations at Annexcure B & C.
16. It makes no difference whatsoever as to how the Hon'ble
Court reached its conclusion to ascertain the sum at Paragraph No.8
in the order dated 05.04.2016. The only thing that matters now is
that there is a determination by the Hon'ble Court which has become
final and binding upon the parties.
17. Besides, the order dated 05.04.2016 was not appealed before
the Hon'ble Division Bench, inasmuch as, the judicial exercise by
the Hon'ble Division Bench was completely different and not in
exercise of the Appellate Jurisdiction.
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18. The Hon'ble Apex Court in the case of Snehasis Giri and
Others v. Subhasis Mitra reported in 2023 SCC OnLine SC 107,
held as under :-
"9. Furthermore, there is merit in the respondents' submission
that the court, in contempt proceeding cannot enlarge its scope
and examine matters which are not part of its remit, i.e. extent of
the direction or orders contained in the judgment of which
contempt being alleged. In fact, in the decision in Sudhir Vasudeva
(2014) 3 SCC 373), it was held as follows:
"19. The power vested in the High Courts as well as this
Court to punish for contempt is a special and rare power
available both under the Constitution as well as the
Contempt of Courts Act, 1971. It is a drastic power which, if
misdirected, could even curb the liberty of the individual
charged with commission of contempt. The very nature of
the power casts a sacred duty in the Courts to exercise the
same with the greatest of care and caution. This is also
necessary as, more often than not, adjudication of a
contempt plea involves a process of self-determination of the
sweep, meaning and effect of the order in respect of which
disobedience is alleged. The Courts must not, therefore,
travel beyond the four corners of the order which is alleged
to have been flouted or enter into questions that have not
been dealt with or decided in the judgment or the order
violation of which is alleged. Only such directions which are
explicit in a judgment or order or are plainly self-evident
ought to be taken into account for the purpose of
consideration as to whether there has been any disobedience
or wilful violation of the same. Decided issues cannot be
reopened; nor can the plea of equities be considered. The
Courts must also ensure that while considering a contempt
plea the power available to the Court in other corrective
jurisdictions like review or appeal is not trenched upon. No
order or direction supplemental to what has been already
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expressed should be issued by the Court while exercising
jurisdiction in the domain of the contempt law; such an
exercise is more appropriate in other jurisdictions vested in
the Court, as noticed above."
11. Furthermore, this court, in lawful exercise of contempt
jurisdiction, cannot examine the merits of a decision, whether the
state or the madrasa's stand that any of the petitioners is entitled to
the benefits of being treated as an employee, having regard to the
concerned rules and regulations. In J.S. Parihar v. Ganpat Duggar
(1996) 6 SCC 291 this court explained the limited scope of
contempt proceedings, as follows, in the facts of the case:
"6. The question then is whether the Division Bench was
right in setting aside the direction issued by the learned
Single Judge to redraw the seniority list. It is contended by
Mr. S.K. Jain, the learned counsel appearing for the
appellant, that unless the learned Judge goes into the
correctness of the decision taken by the Government in
preparation of the seniority list in the light of the law laid
down by three Benches, the learned Judge cannot come to a
conclusion whether or not the respondent had wilfully or
deliberately disobeyed the orders of the Court as defined
under Section 2(b) of the Act. Therefore, the learned Single
Judge of the High Court necessarily has to go into the merits
of that question. We do not find that the contention is well
founded. It is seen that, admittedly, the respondents had
prepared the seniority list on 2-7-1991. Subsequently
promotions came to be made. The question is whether
seniority list is open to review in the contempt proceedings
to find out whether it is in conformity with the directions
issued by the earlier Benches. It is seen that once there is an
order passed by the Government on the basis of the
directions issued by the court, there arises a fresh cause of
action to seek redressal in an appropriate forum. The
preparation of the seniority list may be wrong or may be
right or may or may not be in conformity with the directions.
But that would be a fresh cause of action for the aggrieved
party to avail of the opportunity of judicial review. But that
cannot be considered to be the wilful violation of the order.
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After re-exercising the judicial review in contempt
proceedings, a fresh direction by the learned Single Judge
cannot be given to redraw the seniority list. In other words,
the learned Judge was exercising the jurisdiction to consider
the matter on merits in the contempt proceedings. It would
not be permissible under Section 12 of the Act. Therefore,
the Division Bench has exercised the power under Section
18 of the Rajasthan High Court Ordinance being a judgment
or order of the Single Judge; the Division Bench corrected
the mistake committed by the learned Single Judge.
Therefore, it may not be necessary for the State to file an
appeal in this Court against the judgment of the learned
Single Judge when the matter was already seized of the
Division Bench."
12. In a later decision, Midnapore Peoples' Coop. Bank Ltd. v.
Chunilal Nanda (2006) 5 SCC 399) this court explained the
limitations of a court exercising contempt jurisdiction:
"11. The position emerging from these decisions, in regard
to appeals against orders in contempt proceedings may be
summarised 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.
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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 the 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)."
19. Further, as far as the proceedings in the Contempt Petition are
concerned, the same would not constitute merger of the proceedings
before the Hon'ble Single Judge. As jurisdiction in contempt does
not flow from the Letters Patent but the Contempt of Courts Act,
1971, when the Hon'ble Court [in this case, the Hon'ble Division
Bench] examined the issue of contempt; it did not sit in appeal over
the decision of the Hon'ble Single Judge. Mere numeric strength of
the Hon'ble Contempt Bench, in my humble opinion, will not cloak
the said Hon'ble Division Bench with Appellate powers over the
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orders passed by the learned Single Judge and there will be no
merger of the decision of the Hon'ble Single Judge into the
decision of the Hon'ble Contempt Bench, though having numerical
superiority.
20. Therefore, once an ascertained sum of money has been
directed to be paid by the Hon'ble Single Judge in order dated
05.04.2016, in absence of the orders of the Appellate Court or order
under review exercising their respective jurisdictions as may have
been the case, the said ascertained sum which had acquired finality,
will continue to bind the parties irrespective of whether the judgment
debtor is absolved of contempt or not. While the civil liability of
contempt of the respondent No.3 no longer exists, the civil liability
of respondent No.3, as judgment debtor, shall continue until and
unless the ascertained sum is fully paid by the respondent No.3.
The issue for consideration of this Court is answered accordingly.
21. This Court therefore is of the view that the present petition
should succeed and there should be an order upon the respondent
No.3 to pay the balance amount of Rs.3,94,931/- with interest at the
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rate of 10% per annum from 05.05.2018 till the date of actual
payment, the former date being the date on which the sum of
Rs.4,50,164/- came to be paid by various installments, to the
petitioner.
22. Mr. Buch, learned advocate has submitted that in view of the
conduct of the respondent, there should be suitable costs and/or
accelerated payments/aggravated interest rates which this Court
should fasten upon the respondents.
23. However, interests of justice should suffice, if the balance
payment is made good to the petitioner in terms of judgment and
order dated 05.04.2016 within a period of 12 weeks from the date of
receipt of this order. On the failure of the respondent No.3 to make
the payment as directed hereinabove, the respondent No.3 shall then
have to pay the aforesaid sum at the rate of 12% per annum till date
of actual payment. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(D.N.RAY,J)
BINA SHAH
