Kerala High Court

Martin Joseph vs Asha C. Abraham on 1 June, 2022

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                 &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
     WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
                  WA NO. 736 OF 2022(FILING NO.)
APPELLANTS/3RD PARTY/RESPONDENTS 7&8 IN WP(C)No.16318/2020:

    1     MARTIN JOSEPH
          AGED 46 YEARS
          S/O. JOSEPH JOHN, NECHIKKATTU HOUSE, PALA P.O.
          KOTTAYAM 686 575.
    2     JOSEPH GIL,
          AGED 46 YEARS, S/O. JOSEPH JOHN,
          NECHIKKATTU HOUSE, PALA P.O., KOTTAYAM 686575
          BY ADV GIKKU JACOB


RESPONDENTS/RESPONDENTS 1-5 AND PETITIONER/R2, NON PARTIES AND
PETITIONER:
     1.    ASHA C. ABRAHAM
           ADDITIONAL DISTRICT MAGISTRATE,
           COLLECTORATE, KOTTAYAM 686 002.

     2.   ANIL OOMMEN, NOW WORKING AS REVENUE DIVISIONAL OFFICER,
          CIVIL STATION, PAINAVU P.O., IDUKKI, PIN - 685603

    3.    SREEJITH S., NOW WORKING AS TAHSILDAR (LOCAL),
          MINI CIVIL STATION, MUDAVOOR P.O., VAZHAPPILLY
          MUVATTUPUZHA, PIN 686669

     4.   SREELEKHA P, EXECUTIVE ENGINEER, PWD ROADS DIVISION,
          KOTTAYAM, PIN 686001

     5.   JINU PUNNOOSE, AGED 51 YEARS, WIFE OF P.JOHN VARGHESE,
          ADDITIONAL DISTRICT MAGISTRATE, KOTTAYAM, PIN 686002
          RESIDING AT KOTTAYAM

     6.   JOSE J.NECHIKATTU, AGED 44 YEARS, SON OF JOHN JOSEPH,
          NECHIKATTU HOUSE, PALA P.O., KOTTAYAM, PIN 686575

          BY SRI. SAIGY JACOB PALATTY, SR.GOVERNMENT PLEADER
          R6 BY SRI. TOM JOSE PADINJAREKARA
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 736 OF 2022(FILING NO.)


                                      -2-

                            JUDGMENT

The above unnumbered appeal is placed before us by the

Registry, inter alia noting defects that, certified copy of the order

impugned was not produced and also that no writ appeal is

maintainable as against an order in a Contempt of Court Case [CC

Case]. The expected appellants seek leave to file the above appeal from

the order at Annexure 20 passed by a learned Single Judge in a CC

Case. The CC Case arises from a writ petition filed by the petitioner in

that case, wherein, the expected appellants, were party respondents.

The statutory authority, who was directed to pass orders in accordance

with law, passed an order, against which the CC Case was filed,

alleging non compliance of the directions in the order. The official

respondents, the contemnors alone were made parties and the

expected appellants filed an application for impleadment, which was

dismissed by the learned Single Judge. Hence the above appeal

memorandum, seeking leave to file an appeal without the certified

copy.

WA NO. 736 OF 2022(FILING NO.)

2. We heard the expected appellant herein, the respondent,

who was the petitioner in the CC Case and also the learned

Government Pleader. The learned Senior Counsel appearing for the

expected appellant first argued on the maintainability of the writ

appeal and relied on the decisions of the Hon'ble Supreme Court in

V.M.Manohar Prasad v. N.Ratnam Raju 2004 (13) SCC 610

and of the Division Bench of this Court in Santha Poulose v.

District Collector 2011 (2) KLT 946. The learned Government

Pleader relied on the decision in State of Maharashtra v.

Mahboob S.Allibhoy 1996 (4) SCC 411 and Midnapore

People's Coop.Bank Ltd v. Chunilal Nanda 2006 (5) SCC

399. The learned Government Pleader also relied on Ghanshyam

Sarda v. Sashikant Jha 2017 (1) SCC 599 for the proposition

that a court exercising jurisdiction under the Contempt of Court's Act

can issue directions to set the wrong right and ensure that the wrong is

not perpetuated; which their lordships described as a duty of the

Court. The learned Counsel appearing for the petitioner in the CC

Case relied on a three judge bench of the Hon'ble Supreme Court in WA NO. 736 OF 2022(FILING NO.)

D.N.Taneja v. Bhajan Lal 1998 (3) SCC 26.

3. D.N.Taneja (supra) held that, right of appeal under

the Contempt of Courts Act, 1971 (Act of 1971), specifically Section

19(1) is available only when High Court in exercise of the jurisdiction

under Article 215 imposes punishment on the contemnor. While

reiterating the proposition that, any court vested with the authority to

decide a matter has the power to decide it either in favour or against, a

person, it was held that the power conferred under Article 215 of the

Constitution of India is only to impose punishment in contempt.

Though in considering the question whether a contempt is made out

or not, the High Court could acquit or punish the respondent/

contemnor; only the latter would be in exercise of the power under

Article 215. The right of appeal is one conferred under the statute and

Section 19(1) can be invoked only when the contemnor is punished;

especially since in a proceeding for contempt there are only two

parties, the court and the contemnor and the petitioners role ends

with the matter being brought to the notice of the Court. However it

was also held that, when there is an erroneous acquittal by the High WA NO. 736 OF 2022(FILING NO.)

Court, then the party is not left without a remedy and there could

always be invocation of Article 136 of the Constitution. The same view

was reiterated in Mahboob S.Allibhoy (supra), wherein, it was

held that words "in order" must be read with "decision" so as to

exclude any interlocutory order of the High Court from the scope of

appeal.

4. In fact, more elucidation as to the power under the

Contempt of Courts Act and the maintainability of an appeal from the

orders passed in a proceeding under that Act is available in

Midnapore People's Coop. Bank Ltd (supra). A catena of

decisions including the ones above referred were considered by the

Hon'ble Supreme Court, and in paragraph No.11, the position

emerging with regard to orders in contempt proceedings were stated

as follows:

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.

WA NO. 736 OF 2022(FILING NO.)

II. Neither an order declining to initiate proceeding 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 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 WA NO. 736 OF 2022(FILING NO.)

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).

5. We are now called upon to decide whether the present

appeal falls under any of these categories. We are definite in our mind

and there is no quarrel, that the impugned order in the above appeal

does not fall under category 1 to 4. As far as category 5 is concerned, it

is an offshoot of the dictum coming forth from categories 3 & 4 that (i)

in a proceeding for contempt it is not appropriate for the court to

decide on merits of the dispute between the parties and (ii) if it is so

done, and the decision is incidentally and inextricably connected with WA NO. 736 OF 2022(FILING NO.)

the order imposing punishment; then it is appealable under Section

19(1) of the Act of 1971. Category 5 dealt with a decision on merits, not

linked to the order of punishment, from which, though an appeal

would not be maintainable under Section 19 of the Act of 1971 , the

aggrieved person would have a remedy in an intra court appeal, if the

order was of a learned Single Judge and there is a provision for an

intra court appeal.

6. As far as the provision for an intra court appeal, we have

to look at Section 5 of the High Court Act, 1958, on which another

Division Bench has spoken authoritatively in Santha Paulose

(supra). There, in a contempt case, while dismissing the same, the

learned Single Judge made observations nullifying the directions

issued in the original judgment. The Division Bench in the intra court

appeal, quoted Director of Education, Uttaranchal v. Ved

Prakash Joshi (2005) 6 SCC 98, wherein it was declared that

"while dealing with an application for contempt, the court cannot

traverse beyond the order. It cannot test correctness or otherwise of

the order or give additional directions or delete any direction" (sic). WA NO. 736 OF 2022(FILING NO.)

It was held that the High Court in an appeal can consider the question

whether, in contempt proceedings, the Court traversed far beyond its

jurisdiction. Hence, any direction issued or decision made on merits

of the dispute will not be in exercise of jurisdiction to punish for

contempt and though not appealable under Section 19, an intra court

appeal would lie under Section 5 of the High Court Act. The Division

Bench held so after specifically referring to Midnapore People's

Coop. Bank Ltd (supra).

7. We bow to the above proposition of the Hon'ble Supreme

Court and the Division Bench of this Court. But however, we have to

again examine the order to see whether an appeal would be

maintainable as an order passed under Article 215 of the Constitution

of India or under Section 5 of the High Court Act. Admittedly there is

no punishment imposed and hence an appeal under S.19 is not

maintainable. The impugned order also does not issue any directions

but only records the request of the learned Senior Government Pleader

to grant one more opportunity to recall the order dated 03.09.2021,

and to pass one in compliance of the directions issued by the Court. WA NO. 736 OF 2022(FILING NO.)

The learned Senior Counsel would then refer us to the earlier order

passed at Annexure 14, wherein, according to him, there were clear

directions issued. Even in Annexure 14, the respondent Tahsildar was

given an opportunity to recall Annexure A4 notice and the matter was

adjourned for the Additional District Magistrate to give necessary

instructions to the learned Senior Government Pleader. We do not

find any directions issued there and moreover, the said order is not

challenged in the present appeal. As far as the impugned order is

concerned, there is absolutely no direction issued by the learned

Single Judge and we find no reason to entertain the appeal, even

under Section 5 of the High Court Act. Ghanshyam Sarda

(supra) is not applicable since even according to the learned

Government Pleader there is no direction issued in the order

impugned.

8. The learned Senior Counsel then would submit that

there is no jurisdiction on the statutory authority, to review the order

passed. We refer to J.S.Parihar v. Ganpat Duggar (1996) 6

SCC 291, wherein though the contempt proceedings, initiated on the WA NO. 736 OF 2022(FILING NO.)

ground that the seniority drawn up was not in conformity with the

directions of the High Court, was dropped, there was a direction to

redraw the seniority list. The Division Bench, in an intra court appeal

set aside the direction, despite holding that there can be no appeal

filed under Section 19 of the Act of 1971. The Hon'ble Supeme Court

while upholding the decision of the Division Bench held so :

6. ... 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. 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. ...

9. Just as an order passed, allegedly not in conformity WA NO. 736 OF 2022(FILING NO.)

with the directions of the Court will give rise to a fresh cause of action,

the withdrawal of an order, at the behest of the authority who passed

it, would give rise to a fresh cause of action. The learned Single Judge

quite aware of the confined jurisdiction has not issued any directions

and has merely recorded the submission of the Government Pleader.

We would not say anything further as of now and would leave it for

further decision in appropriate proceeding by the party who is

prejudiced by such withdrawal, which remedy survives.

We uphold the defect and reject the writ appeal with the above

reservation.

Sd/-