B.K. Srivastava vs Rakesh Singh and Others

Sanjay Kishan Kaul, C.J.

CM No. 1010 of 2013

Allowed subject to all just exceptions and CM disposed of.

Letters Patent Appeal No. 379 of 2013 (O & M)

The Letters Patent Appeal is directed against the impugned judgment of the learned Single Judge passed in COCP No. 2089 of 2012 which was an application filed by the appellant under Sections 10 and 12 of the Contempt of Courts Act, 1971.

The learned Single Judge has expressed his disinclination to proceed in the contempt proceedings keeping in view the fact that the main writ petition itself has been dismissed.

We have thus put a query to the appellant appearing in person as to how the present appeal would be maintainable. The appellant submits that in terms of the earlier order dated 26.07.2012, notice of the contempt was issued when a prima-facie case was found and merely because the writ petition is dismissed should not be a ground to dismiss the contempt petition. He further states that Letters Patent Appeal is maintainable.

The issue qua maintainability of such an appeal is no more res-integra on account of various judgments including of Hon''ble Supreme Court. In Baradakanta Mishra Vs. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court, , it was held that no right to appeal lies where the Court refuses to take action or initiate proceedings as a Court cannot be compelled to take action for its contempt. The remedy, however, would be available under Article 136 of the Constitution of India.

The legal position was further elucidated in Midnapore Peoples'' Co-op. Bank Ltd. and Others Vs. Chunilal Nanda and Others, The position regarding appeals against orders in contempt proceedings was summarized in para No. 11 of the judgment which reads as under:-

The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus:-

I. An appeal u/s 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 u/s 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 u/s 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 u/s 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).

emphasis supplied.

In view of the fact that the contempt petition has been dismissed, the appeal would not be maintainable in the present case in view of what is stated aforesaid and Letters Patent Appeal in the form of intra-court appeal would be maintainable only as per category No. V aforesaid if High Court decides an issue or makes any direction relating to the merits of the dispute between the parties in a contempt proceedings.

The impugned order is in the nature of category-II and in such cases it has been opined that in special circumstances, it may be open to challenge under Article 136 of the Constitution. We thus hold that the appeal is not maintainable and accordingly dismiss the same with liberty to the appellant to avail of such remedy as may be available under law.