Bhajan Singh & Others vs Heera Lal Gautam & Others

Ramesh Ranganathan, CJ

For the reasons stated in the accompanying affidavit, the delay in filing Special Appeal No.286 of 2019 is condoned. Delay Condonation Application is disposed of.

These intra-court appeals are preferred under Chapter VIII Rule 5 of the Allahabad High Court Rules against the order passed by the learned Single Judge in Contempt Petition No.1009 of 2018 and batch dated 28.02.2019.

The appellants herein had earlier invoked the contempt jurisdiction of the learned Single Judge alleging disobedience of the order passed in Writ Petition No.3254 of 2018 and batch dated 20.09.2018, whereby the Writ Petitions were disposed of with liberty to the petitioner to make a representation within ten days from the date of the order, and directing the Chief Education Officer to examine the petitioner's claim and pass a speaking and reasoned order within three weeks thereafter.

Alleging that, though a copy of the order was served on the Chief Education Officer on 28.09.2018 by registered post, no order was passed on the representation, and the respondents had willfully violated the order of this Court, the appellants herein invoked the contempt jurisdiction of this Court. Notices were ordered and, thereafter, the Chief Education Officer filed his counter-affidavit contending that, in compliance with the judgment, the appellant's representation stood rejected on 16.10.2018; and the decision was communicated to the appellants by registered post. The postal receipt was produced by the Chief Education Officer before the learned Single Judge which showed that the registered letter was addressed to the appellants. In the order under appeal, the learned Single Judge observed that, even before the contempt petition was filed, the order passed earlier had been complied with, and failure on the part of the appellants to disclose this fact amounted to deliberate perjury and concealment of material facts. Costs of Rs.50,000/- was imposed for concealment of material facts, and in forcing the officer to attend Court proceedings, despite compliance with the judgment. A sum of Rs.50,000/- was directed to be deposited by the appellants- petitioners with the Advocates' Welfare Fund of the Bar Association within one month from the date of the order.

Aggrieved thereby, the appellants first preferred a Contempt Appeal under Section 19 of the Contempt of Courts Act. On being asked how the appeal under Section 19 of the Contempt of Courts Act would lie, since the order passed by the learned Single Judge was not in the exercise of his jurisdiction to punish for contempt, Mr. Amar Murti Shukla, learned counsel for the appellants, sought permission to withdraw the Contempt Appeals with liberty to avail their legal remedies. Liberty, as sought for, was granted, and the Contempt Appeals were dismissed as withdrawn by the order of this Court on 01.04.2019 in all the three Contempt Appeals. Thereafter, the jurisdiction of the Division Bench has been invoked, by way of an intra-court appeal, under Chapter VIII Rule 5 of the Allahabad High Court Rules.

Mr. Amar Murti Shukla, learned counsel for the appellants, would submit that Clause 15 of the Letters Patent is similarly worded as that of Chapter VIII Rule 5 of the Allahabad High Court Rules; the Supreme Court, while considering the scope of Clause 15 of the Letters Patent in Midnapore Peoples' Coop. Bank Ltd. & others vs. Chunilal Nanda & others, (2006) 6 SCC 399, has held that an intra-court appeal would lie against the order passed by the learned Single Judge even in contempt proceedings, and the jurisdiction of the Division Bench can be invoked by the persons aggrieved by the said order; the appellants herein are aggrieved by the heavy costs of Rs.50,000/- imposed by the learned Single Judge; the appellant, in Special Appeal No.282 of 2019, does not have the financial wherewithal to pay such heavy costs; he is unemployed and has a large family of ten members to support; his mistake in invoking the contempt jurisdiction of this Court should not result in his being made to suffer such heavy costs; the appellants, in the other two Special Appeals, did not receive a copy of the order of the Chief Education Officer; the said order was received by their brother and nephew respectively, who did not inform them of the order passed by the Chief Education Officer; they had invoked the contempt jurisdiction of this Court in ignorance of the order passed by the Chief Education Officer; and their action was not deliberate.

In examining the maintainability of an intra-court appeal, against the order passed by the learned Single Judge, imposing costs of Rs.50,000/- in contempt proceedings on the appellants herein (petitioners in the contempt case), it must be borne in mind that Letters Patent is no longer applicable to the State of Uttar Pradesh (and Uttarakhand), consequent on the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962, having been enacted in the year 1962. Chapter VIII Rule 5 of the Allahabad High Court Rules, which are applicable to intra-court appeals in the Uttarakhand High Court also, is not very differently worded therefrom. It is useful in this context to read Chapter VIII Rule 5 of the Allahabad High Court Rules and Clause 15 of the Letters Patent in juxta-position with each other.

Chapter VIII Rule 5 Of The Allahabad High Court Rules

Clause 15 Of The Letters Patent

Special appeal.-An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award-(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.]

Clause 15 - Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdictionAnd we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court or one Judge of ant Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right to appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.

Clause 15 of the Letters Patent provides for an appeal against the order passed by the learned Single Judge of the High Court to a Division Bench with respect to matters other than those specifically excluded therein. A similar right of appeal is provided under Chapter VIII Rule 5 except that more exceptions are stipulated therein than in Clause 15 of the Letters Patent. The present appeals do not fall within any of the exceptions, and an intra-court appeal would therefore lie to a Division Bench under Chapter VIII Rule 5 of the Allahabad High Court Rules.

While examining the scope of Clause 15 of the Letters Patent, the Supreme Court in Midnapore Peoples' Coop. Bank Ltd. & others vs. Chunilal Nanda & others, (2006) 6 SCC 399, observed thus:-

"...... The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized 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.

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).

The first point is answered accordingly......." (emphasis supplied)

In terms of Paragraph 11(V) extracted hereinabove, the appellants herein are entitled to invoke the intra-court appellate jurisdiction of the Division Bench, against the order passed by the learned Single Judge, since they are evidently persons aggrieved by the said order whereby exemplary costs of Rs.50,000/- was imposed on each of them.

We see no reason, therefore, to non-suit the appellants herein or to hold that appeals filed by them are not maintainable. That does not, however, conclude the matter. While an intra-court appeal would lie to a Division Bench against the order passed by the learned Single Judge even in the exercise of his contempt jurisdiction, the Division Bench, nonetheless, would be required to examine the order passed by the learned Single Judge within the limited parameters of an intra-court appeal. It is not in dispute that the contempt jurisdiction was invoked by the appellants-petitioners, after the Chief Education Officer had passed the order in compliance with the order of the learned Single Judge in Writ Petition (S/S) No.3254 of 2018 and batch. The appellant in Special Appeal No.282 of 2019 does not also dispute that he had received a copy of the said order. The orders passed by the Chief Education Officer were sent to the appellants-petitioners by registered post to their respective addresses. The fact that these registered letters were received not by the appellants but by their brother and nephew respectively matters little, since the registered letter was sent to the correct addresses of the appellants.

The appellants-petitioners have, evidently, acted amiss in needlessly troubling the officers concerned, in wasting precious court's time by invoking the contempt jurisdiction of this Court, and in misleading the Court. As it is evident that the order of the learned Single Judge has not been violated by the respondents, the learned Single Judge was, in our view, justified in holding that the appellants herein had committed deliberate perjury, and had caused needlessly inconvenience both to the Court and to the respondents.

While the learned Single Judge may have also been justified in imposing costs on the appellants, the issue is regarding the quantum. All the appellants are unemployed, and are married. While the appellant in Special Appeal No.282 of 2019 is said to have ten children, the appellants in the other two appeals also have children to support. Mr. Amar Murti Shukla, learned counsel appearing on behalf of the appellants, would submit that they are not in a position to pay such heavy costs. While we see no reason to interfere with the order of the learned Single Judge to the extent he directed imposition of costs on the appellants, considering the dire financial straits in which the appellants are in, we reduce the costs imposed on them from Rs.50,000/- to Rs.25,000/- each which the appellants shall pay to the Uttarakhand State Legal Services Authority within a period of four weeks from today, failing which it is open to the Uttarakhand Legal Services Authority to take necessary steps to recover the said amount in accordance with law.

Subject to the modification indicated hereinabove, the appeals fail and are, accordingly, dismissed.