Jharkhand High Court
Shambhunath Mishra vs The State Of Jharkhand on 1 March, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No. 975 of 2019
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Shambhunath Mishra ... ... Petitioner
Versus
1. The State of Jharkhand
2. Sri Ram Lakhan Rana, proprietor of M/s. India Alloys,
Bokaro
3. The Secretary, Bokaro Industrial Area Development
Authority, BIADA Bhawan, Bokaro
.... ... Opp. Parties
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mrs. Ritu Kumar, Advocate
For the Opp. Party No. 1 : Mr. Gaurav Raj, A.C. to A.A.G.-II
For the Opp. Party No. 2 : Mr. Sanjeev Thakur, Advocate
For the Opp. Party No. 3 : Mrs. Richa Sanchita, Advocate
Mrs. Pinky Shaw, Advocate
Order No. 21 Dated: 01.03.2024
The present contempt petition has been filed alleging
wilful violation of the order dated 23.02.2018 passed in F.A.
(First Appeal) No. 38 of 2014.
2. Learned counsel for the petitioner submits that F.A. No.
38 of 2014 was preferred by the appellant/opposite party no. 2
before this Court against the judgment and decree dated
23.12.2013 passed by the Civil Judge, Senior Division-IV, Bokaro
in Money Suit No. 09/2005. The said First Appeal was disposed
of vide order dated 23.02.2018 in terms of compromise arrived
at between the parties. As per the terms of settlement, the
appellant/opposite party no. 2 had to pay the entire agreed
amount of Rs.8,50,000/- (Eight Lakhs Fifty Thousand) within 30
days to the petitioner, failing which the opposite party no. 2 had
to pay the said settled amount along with the interest @ 10%
P.A. in diminishing method, however the entire amount was to
be paid within 36 months after expiry of the first 30 days.
3. It is further submitted that the opposite party no. 2 has
not paid a single penny to the petitioner till date which is clear
violation of order dated 23.02.2018 passed in F.A No. 38 of
2014.
4. Learned counsel for the opposite party no. 2, at the
outset, raises question of maintainability of the present
contempt petition by submitting that the petitioner has chosen a
wrong forum by filing the present contempt application, rather
he should have filed Execution Case for implementation of the
order passed in F.A No. 38 of 2014.
5. Heard learned counsel for the parties and perused the
materials available on record.
6. The primary question falls for consideration before this
Court is as to whether the present contempt petition filed
alleging wilful violation of the order dated 23.02.2018 passed in
F.A. No. 38 of 2014 in terms of the compromise arrived at
between the petitioner and the opposite party no. 2, is
maintainable?
7. Article 215 of the Constitution of India enumerates 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.
8. As per Section 2(b) of the Contempt of Courts Act,
1971 (in short, 'the Act, 1971"), "civil contempt" means wilful
disobedience to any judgment, decree, direction, order, writ or
other process of a Court or wilful breach of an undertaking given
to a Court. Section 11 of the said Act provides that a High Court
shall have jurisdiction to inquire into or try a contempt of itself
or of any court subordinate to it, whether the contempt is
alleged to have been committed within or outside the local limits
of its jurisdiction, and whether the person alleged to be guilty of
contempt is within or outside such limits. Section 23 of the Act,
1971 provides that the Supreme Court or, as the case may be,
any High Court may make rules, not inconsistent with the
provisions of this Act, providing for any matter relating to its
procedure.
9. Thus, the High Court can take suitable action against
the contemnor for violation of any order passed by the said
court in exercise of its jurisdiction.
10. The Hon'ble Supreme Court in the case of Sudhir
Vasudeva, Chairman and Managing Director, Oil and
Natural Gas Corporation and Others Vs. M. George
Ravishekaran & Others reported in (2014) 3 SCC 373, has
held that 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 upon the Courts to exercise the same with the
greatest care and caution.
11. In the case of R.N. Dey & Others Vs. Bhagyabati
Pramanik & Others reported in (2000) 4 SCC 400, the
Hon'ble Supreme Court has held that the weapon of contempt is
not to be used in abundance or misused. Normally, it cannot be
used for execution of the decree or implementation of an order
for which alternative remedy in law is provided. Discretion given
to the court is to be exercised for maintenance of the court's
dignity and majesty of law. Further, an aggrieved party has no
right to insist that the court should exercise such jurisdiction as
contempt is between a contemner and the court.
12. The aforesaid judgment has also been followed in the
case of Hukum Chand Deswal Vs. Satish Raj Deswal
reported in (2021) 13 SCC 166.
13. In the case of Indian Oil Corporation Limited &
Others Vs. Sheo Shankar Mishra reported in 1995 SCC
OnLine Pat 358, learned Division Bench of Patna High Court
has held as under:-
"12. The execution proceeding as well as contempt
proceeding both are independent proceedings and they
operate in two different fields or spheres. So far as the
execution proceeding is concerned, that is filed by a
party against the other party to the litigation for
enforcement of the rights and liabilities created under
the decree or the order. The contempt proceedings are
proceedings to uphold the prestige and the dignity of the
court and majesty of law. It has nothing to do with the
execution of the decree or order passed in a litigation.
One proceeding cannot be termed as a substitute for the
other. The contempt proceeding cannot be used as a
weapon against the judgment debtor to force him to
comply with the decree or order. The contempt
proceeding can be initiated only when the materials on
record show wilful disobedience of the order. Raising
valid objection in the execution proceeding regarding
executability of the decree under the provisions of the
Code of Civil Procedure or under any law, or taking other
recourse of similar type permissible in law in an
execution proceeding, cannot be turned as a wilful
disobedience and a proceeding for contempt cannot be
initiated on that ground."
14. In the case of Kanwar Singh Saini Vs. High Court
of Delhi reported in (2012) 4 SCC 307, the Hon'ble Supreme
Court has held that when the matter relates to the infringement
of a decree or decretal order, it is not expedient to invoke and
exercise contempt jurisdiction as a mode of executing the
decree or merely because other remedies may take time or are
more circumlocutory in character.
15. Now, it is well settled that the power to issue contempt
is a special and rare power available both under the Constitution
of India as well as the Contempt of Courts Act, 1971 and the
same has to be exercised with greatest care and caution. The
weapon of contempt cannot be used for execution of the decree
or implementation of an order for which alternative remedy in
law has been provided. Discretion given to the court is to be
exercised for maintenance of the court's dignity and majesty of
law. Further, no party has right to insist the court to exercise
jurisdiction under Contempt of Court Act, 1971 as contempt is
between a contemner and the court.
16. In the case of Babu Ram Gupta Vs. Sudhir Bhasin
& Another reported in (1980) 3 SCC 47, the Hon'ble
Supreme Court has held as under: -
"10. These are the tests laid down by this Court in order
to determine whether a contempt of court has been
committed in the case of violation of a prohibitive order.
In the instant case, however, as indicated above, there is
no application nor any affidavit nor any written
undertaking given by the appellant that he would
cooperate with the receiver or that he would hand over
possession of the Cinema to the receiver. Apart from
this, even the consent order does not incorporate
expressly or clearly that any such undertaking had been
given either by the appellant or by his lawyer before the
Court that he would hand over possession of the
property to the receiver. In the absence of any express
undertaking given by the appellant or any undertaking
incorporated in the order impugned, it will be difficult to
hold that the appellant wilfully disobeyed or committed
breach of such an undertaking. What the High Court
appears to have done is that it took the consent order
passed which was agreed to by the parties and by which
a receiver was appointed, to include an undertaking
given by the contemner to carry out the directions
contained in the order. With due respects, we are unable
to agree with this view taken by the High Court. A few
examples would show how unsustainable in law the view
taken by the High Court is. Take the instance of a suit
where the defendant agrees that a decree for Rs 10,000
may be passed against him and the court accordingly
passes the decree. The defendant does not pay the
decree. Can it be said in these circumstances that merely
because the defendant has failed to pay the decretal
amount he is guilty of contempt of court? The answer
must necessarily be in the negative. Take another
instance where a compromise is arrived at between the
parties and a particular property having been allotted to
A, he has to be put in possession thereof by B. B does not
give possession of this property to A. Can it be said that
because the compromise decree has not been
implemented by B, he commits the offence of contempt
of court? Here also the answer must be in the negative
and the remedy of B would be not to pray for drawing up
proceedings for contempt of court against B but to
approach the executing court for directing a warrant of
delivery of possession under the provisions of the Code
of Civil Procedure. Indeed, if we were to hold that non-
compliance of a compromise decree or consent order
amounts to contempt of court, the provisions of the Code
of Civil Procedure relating to execution of decrees may
not be resorted to at all. In fact, the reason why a breach
of clear undertaking given to the court amounts to
contempt of court is that the contemner by making a
false representation to the court obtains a benefit for
himself and if he fails to honour the undertaking, he
plays a serious fraud on the court itself and thereby
obstructs the course of justice and brings into disrepute
the judicial institution. The same cannot, however, be
said of a consent order or a compromise decree where
the fraud, if any, is practised by the person
concerned not on the court but on one of the parties.
Thus, the offence committed by the person concerned is
qua the party not qua the court, and, therefore, the very
foundation for proceeding for contempt of court is
completely absent in such cases. In these circumstances,
we are satisfied that unless there is an express
undertaking given in writing before the Court by the
contemner or incorporated by the court in its order,
there can be no question of wilful disobedience of such
an undertaking. In the instant case, we have already
held that there is neither any written undertaking filed
by the appellant nor was any such undertaking impliedly
or expressly incorporated in the order impugned. Thus
there being no undertaking at all the question of breach
of such undertaking does not arise."
17. In the aforesaid judgment, it has been expressly held
that contempt petition is not maintainable for compliance of any
undertaking given by the parties and remedy for the same is to
file execution of the said compromise decree. It has further
been held that if non-compliance of a compromise decree or
consent order is held as contempt of court, then no person will
resort to the remedy provided under the Code of Civil Procedure
relating to execution of decrees. If by non-compliance of any of
the terms of the consent order or a compromise decree, the
fraud, if any, is practised by the concerned person, the offence
is committed not on the court, rather on one of the parties.
Unless there is an express undertaking given in writing before
the Court by the contemner or incorporated by the court in its
order, there can be no question of wilful disobedience of such an
undertaking.
18. In the present case also, no undertaking has been
given by any of the parties before the court, rather the order
dated 23.02.2018 passed in F.A. No. 38 of 2014 is a compromise
decree based on the agreement arrived at between the parties
and as such non-compliance of such undertaking cannot be said
to be contempt of court so as to invoke the jurisdiction of the
Act, 1971, rather the same is executable by the competent
executing court established under the Code of Civil Procedure.
19. In view of the above discussion, this Court is of the
considered view that the present contempt petition is not
maintainable and the same is accordingly dismissed.
20. The petitioner is, however, at liberty to approach the
competent executing court for execution of the order
23.02.2018 passed in F.A. No. 38 of 2014.
Ritesh/AFR (Rajesh Shankar, J.)
