Madras High Court
Syed Meera Hussain Sahib vs Haja Noordeen Sahib @ on 24 March, 2022
LPA No.1 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.03.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
LPA No.1 of 2020
Syed Meera Hussain Sahib .. Appellant
Vs.
1. Haja Noordeen Sahib @
Alhaj Dr.S.Syed Kamil Sahib
2. Haji. Kazi S.A.Shaik Hasan Sahib
3. S.Saha Syed Sahib
4. Muhalli Muthavalli H.Haja Najmudeen Sahib
5. S.Suthan Kalifa Sahib @
Kannuvappa Sahib
6. H.K.Syed Yusoof Sahib .. Respondents
[R3 to R6 impleaded vide orders dated
05.03.2020 in CMP Nos.1209 1108,
1079 & 799 of 2020 respectively]
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 03.12.2019 made in Cont.P.No.3107 of 2016.
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For the Appellant : Mr.V.Selvaraj
For the Respondents : Mr.N.Chandrasekaran
for respondent 1
Mr.R.Parthasarathy
for respondent 2
Mrs.Hema Sampath
Senior Counsel
For M/s. A.Ajimath Begam
for respondent 3
Not ready in Notice
for respondents 4 to 6
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
Heard learned counsel appearing for both the parties.
2. The Letters Patent Appeal has been filed in reference to the
order passed in the contempt petition, which was filed for non
compliance of the order dated 22.11.2016 passed in W.P.No.33181
of 2016 filed by Haja Noordeen Sahib. The writ petition was allowed
setting aside the impugned notices and since a larger issue was
pending in a batch of cases, the first respondent was directed not to
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call for a meeting and to abide by the result of the batch of cases
which will be posted for disposal during the first week of December
2016. All the parties were directed to abide by the orders to be
passed in the batch of pending cases questioning the jurisdiction of
the Civil Court/Wakf Board.
3. After the order dated 22.11.2016, the contempt petition
was filed and it was decided by order dated 03.12.2019. While
hearing the contempt petition, the Court was informed about the
settlement through mediation. Referring to the aforesaid and Clause
13 of the agreement, a detailed order was passed. In the light of
the settlement, the contempt petition was closed and before parting
with the case, an appreciation was recorded to learned counsel
appearing for the parties in the contempt petition as well as the
connected matters for resolving the problem through settlement.
4. The order dated 03.12.2019 passed in the contempt
petition has been challenged in this appeal after taking leave to
maintain it. It is in view of the facts and circumstances of the case
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that he was not a party in W.P.No.33181 of 2016 and even in the
contempt petition. The appellant is one who was the 7th respondent
in O.S.No.31 of 2014 before the Sub Court, Nagapattinam.
5. We are not required to refer the aforesaid much other than
to state that the settlement was arrived then and accordingly, an
order was passed by the Sub Court, Nagapattinam. In any case
now, the Letters Patent Appeal has been preferred to challenge the
settlement between the parties and endorsed by the Court by the
order under challenge. It is submitted that the contempt Court has
no jurisdiction to record a settlement and if an order is passed for it,
Letters Patent Appeal to challenge the aforesaid is maintainable.
Accordingly, a prayer was made to set aside the order passed in the
contempt petition as it may affect the right of the appellant.
6. Reference of the judgment of the Apex Court in the case of
Midnapore Peoples' Co-op. Bank Ltd. v. Chunilal Nanda
[(2006) 5 SCC 399] was given. It is to show that under what
circumstances an appeal would be maintainable against the order
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LPA No.1 of 2020
passed in the contempt without inflicting the punishment.
7. A further reference to the order of this Court in the case of
Tamilnad Mercantile Bank Ltd., Tuticorin v. Tamilnad
Mercantile Bank Shareholders' Welfare Association [2006
(2) CTC 97] and Arumuganainar, S. v. Jeenath Roadways
[2006 (1) CTC 247] has been given. A prayer was accordingly
made that in the light of the leave granted and the order in the
contempt petition, based on settlement, affecting the right of the
appellant, it is not sustainable and requires to be set aside.
8. Learned counsel for the appellant had further given
reference to the leave to appeal preferred by the parties before the
Supreme Court and certain orders from time to time. It is further
submitted that in the Special Leave to Appeal (C) Nos.6406 to 6407
of 2021, the Apex Court has directed the parties to maintain status
quo. Reference to the order passed by the Supreme Court would be
given at the time of dealing with the arguments. Further reiterating
the prayer, it is submitted that since the right of the appellant is
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going to be affected, the order under challenge may be recalled.
9. At this stage, a reference was made to another suit
preferred by the appellant in O.S.No.26 of 2016 which is still
pending before the Sub Court, Nagapattinam and remain unnoticed
by the Court. The order in the contempt based on the settlement
would affect the pending suit also. Thus, additional reason was
given by learned counsel to set aside the order passed in the
contempt petition.
10. The appeal has been opposed by learned counsel for the
respondents. It is submitted that the appellant is one who was a
party in the batch of matters decided by this Court by order dated
08.06.2018, of which, reference was made in the original order in
W.P.No.33181 of 2016 dated 22.11.2016. He was party in
W.A.No.1640 of 2016 as tenth respondent and in the similar matter
in CRP (PD) No.74 of 2015, he was the sixth respondent. Thus, the
order dated 08.06.2018 was passed in the presence of the appellant
herein.
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11. During the course of hearing of batch of matters, the
appellant herein did not disclose the outcome of the suit in
O.S.No.31 of 2014 and even failed to disclose the pending suit in
O.S.No.26 of 2016. He kept total silent on both the issues and did
not raise any objection to the settlement during the course of
hearing, despite his participation in the appeal.
12. The Division Bench took note of certain facts, which
includes the facts pertaining to O.S.No.31 of 2014, in paragraph 47
of the judgment, with appropriate direction thereupon. In view of
the above, nothing would survive now after the final judgment in
the batch of appeals and the writ petitions, which became applicable
in W.P.No.33181 of 2016 as the final outcome of the batch of
appeals was ordered to govern the parties.
13. The order passed in the batch of cases dated 08.06.2018
has not been challenged by the appellant before the Apex Court and
thus, for him, the order aforesaid became final. That being the
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position, the order of the learned Single Judge, on which the
contempt was filed, could have been governed by the final outcome
of the judgment in the batch of appeals and otherwise, pursuant to
the settlement arrived at between the parties on 29.10.2019,
referred in the order dated 03.12.2019 on contempt, the Letters
Patent Appeal would not be maintainable. In view of the above also,
a prayer is made to dismiss the Letters Patent Appeal.
14. We have considered the rival submissions of the parties
and perused the records.
15. The facts relevant for consideration is in reference to the
order dated 22.11.2016 passed by the Writ Court in W.P.No.33181
of 2016 and is the root of the litigation. The said writ petition was
disposed of in the following manner:
"5. Mr.Srinath Sridevan, learned counsel appearing for
the first respondent submits that following the interim order
granted by this Court, meeting has not been conducted.
6. Since the larger issue is pending in batch of cases,
the first respondent shall not call for a meeting and shall
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abide by the result of the batch of cases, which will be posted
for disposal during First week of December 2016.
7. In the light of the above, the Writ Petition is allowed
and the impugned notices are set aside. All the parties shall
abide by the orders that will be passed in the other batch of
cases, which is pending before this Court, questioning the
jurisdiction of Civil Court/ Wakf Board. No costs.
Consequently, connected Miscellaneous Petitions are
closed."
16. A perusal of the order quoted above shows that the writ
petition was followed with quashing of the impugned notices, but
with a direction that the parties would be governed and abide by
the outcome of the pending batch of writ petitions.
17. The second event which is relevant to analyse the issue is
the disposal of the batch of writ appeals, writ petitions and civil
revision petitions by judgment dated 08.06.2018, wherein the
appellant herein was also a party in one of the writ appeals and
even in Civil Revision Petition. The judgment dated 08.06.2018 was
passed after a detailed discussion of the facts and also referring to
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the civil suit in O.S.No.31 of 2014. A direction was given to the Sub
Court to dispose of O.S.No.31 of 2014 within six months from the
date of the judgment. During the course of hearing, the appellant
did not disclose the pendency of the other suit in O.S.No.26 of
2016. In any case, the judgment dated 08.06.2018 became final
against the appellant as it was not challenged by him by
maintaining an appeal before the Apex Court.
18. The third event now remains is the order dated
03.12.2019 passed in the contempt petition where the appellant
was not a party. The Contempt Court took note of the settlement
pursuant to the mediation and finding it to be the best solution,
ordered to close the contempt petition. It was definitely after
acceptance of the apology of the contemnors with further direction
regarding withdrawal of the civil suit with a direction to the trial
Court to entertain the application even for earlier conclusion of the
proceedings.
19. As the appellant was not a party to the contempt
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proceedings and even in the earlier writ petition, he sought leave to
maintain the appeal and was granted. However, during the course
of arguments, a serious objection to the maintainability of the
Letters Patent Appeal has been raised. It is not only that the Letters
Patent Appeal is not maintainable in the light of Section 19 of the
Contempt of Courts Act, but, in view of the fact that the appellant
was not a party to the writ petition and in the contempt petition.
20. Reference to the judgment of the Apex Court in the case
of Shyam Sel and Power Limited v. Shyam Steel Industries
Limited [2002 LiveLaw (SC) 282] has been given. It is
considering the scope of the Letters Patent and the definition of
judgment by the Apex Court to press upon the Court that the
appeal is not maintainable in the hands of the appellant against the
order passed in the contempt petition.
21. Another judgment referred by the appellant is in the case
of Baradakanta Mishra v. Gatikrushna Misa, CJ of the Orissa
High Court [AIR 1974 SC 2255]. An appeal was preferred
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against the order of the High Court rejecting the motion made by a
Judicial Officer and refusing to initiate a contempt proceeding. It
was held that the matter would not be appealable under Section 19
of the Contempt of Courts Act.
22. If the facts of the case are taken into consideration, the
appellant is one who was not a party to the litigation in the writ
petition so as the contempt petition, so as to be affected by the
outcome. He was only a party to the detailed order dated
08.06.2018. The appellant is to be governed by the order dated
08.06.2018 and therefore, we do not find any reason to challenge
the order passed in the contempt petition. In any case, application
to grant leave has been allowed and therefore, we would be
analysing further as to whether the appellant can maintain the
appeal against the order where no punishment has been inflicted.
23. If we govern the appeal by the ratio propounded in the
case of Midnapore Peoples' Co-op. Bank Ltd., the Letters Patent
would be maintainable. Though driven by the principles of Section
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19 of the Contempt of Courts Act, the contempt appeal before the
Division Bench would be maintainable only in the case of
punishment and not otherwise. This has been held by the Apex
Court that in case no punishment has been inflicted, the party can
approach the Supreme Court, but cannot maintain an appeal before
the Division Bench.
24. Even if we take a liberal view to hold the appeal to be
maintainable, the question would be as to how to maintain the
appeal by a person who was not a party in the writ petition so as
the contempt petition, so as to question the order passed on the
contempt petition. If the appellant is yet aggrieved by the
settlement, he could have challenged by taking appropriate remedy
if his rights are affected because closure of the contempt cannot
have effect on the appellant as he had not alleged non-compliance
of the order.
25. In view of the above, we do not find any ground to accept
the challenge to the order passed in the contempt petition. The
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settlement based on mediation has been taken note of to find out
the resolution of the issue in the best possible manner and the
appellant has failed to show how his right is affected by it. It is
under such circumstances the suit filed by him in O.S.No.26 of 2016
is yet to be decided and otherwise, the earlier suit in O.S.No.31 of
2014 was disposed of.
26. Taking note of overall facts, we do not find any ground to
entertain the appeal for questioning the order passed in the
contempt petition. Accordingly, the Letter Patent appeal is
dismissed. There will be no order as to costs. Consequently, CMP
Nos.150, 151 and 6683 of 2020 are also dismissed.
(M.N.B., CJ.) (D.B.C., J.)
23.03.2022
Index : Yes/No
kpl/drm
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THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.
kpl
L.P.A.No.1 of 2020
23.03.2022
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