Shantha V. Pai vs Vasanth Builders, Madras

Dr. A.S. Anand, C.J.—This appeal u/s 19(1) of the Contempt of Courts Act, 1971 (hereinafter referred to as the Act), clause 15 of the

Letters Patent and Rule 10 of the High, Court Rules is directed against the order of dismissal of the Contempt Application No. 170 of 1989 by the

learned trial Judge, vide order dated 23rd September, 1989. It was held that the appellant had failed to establish that the respondent had violated

any order of the Court. A short resume of the facts lending to the filing of Contempt Application No. 170 of 1989 and the present appeal need a

notice at this stage.

The appellant filed W.P. No. 4835 of 1989 and in W.M.P. No. 7079 of 1989 filed therewith, sought an interim injunction restraining the

respondent herein inter alia from carrying on any building or construction work over the site pending disposal of the Writ Petition. On 4th April,

1989, an interim injunction was issued along with notice of the petition to the opposite side. According to the appellant, the order of the court was

served on the respondent on 5th April, 1989 but despite service, the respondent proceeded with the work of construction in the first and second

floors by putting up brick wall on the southern side and plastering the interior of the walls. The appellant, through a telegram dated 8th April, 1989,

brought to the notice of the respondent that the order of the Court was being violated by him. In reply, the stand of the respondent, however, was

that no order of the Court was being flouted in any manner. On 28th April, 1989, after hearing the counsel for both sides, the learned trial Judge

recorded an undertaking affidavit to the effect that the respondent herein will demolish the fourth floor (top floor) at his cost and expense, if the

construction is held to be unauthorised and is not regularised. The Court also ordered, without prejudice to the contentions of either of the parties

by way of interim arrangements, as follows :-

........ The second respondent is permitted to continue the construction at No. 11, 2nd Crescent Park Road. However, the construction is

restricted in respect of the top floor, i.e., the 4th floor only the 2nd respondent should leave a side set back up to 20'' on the eastern side within his

portion. It is made clear that this arrangement will hold good till the next hearing day.

According to the appellant, the respondent, contrary to the undertaking and the order of the Court dated 28th April, 1989 (supra), built up the

entire unfinished walls on the southern side in the first and second floor on 8th May, 1989 and had also put up a scaffolding on the eastern side of

the building and was busy putting brick walls on the eastern and northern sides of the three floors, without leaving 20'' side set back space on the

eastern side of the portion besides constructing a water tank on the top of the fourth floor, contrary to the permission granted by the Court. On

these allegations, the appellant filed Contempt Application No. 170 of 1989 seeking an order to punish the respondent for committing Contempt of

Court. The Contempt Application was resisted and a counter-affidavit was filed by the respondent denying the allegations of violating the order of

the Court. It was maintained that the construction work undertaken by the respondent was in accordance with the directions of the Court and that

the workers of the respondent were engaged only in cleaning and curing the completed structure which could not be characterised as any

construction work. Apart from alleging that the allegations contained in paragraph 4 of the affidavit filed in support of the application were vague

and not specific, the respondent also asserted that he has not flouted the order dated 28th April, 1989 in any manner whatsoever. The respondent

maintained in the counter-affidavit that there was no prohibition to carry on with the construction work on the second floor and that the scaffolding

on the eastern side had been put up since it was necessary to carry out the work on the permitted floors and the putting up of the scaffolding was

not any violation of the interim order of the Court. The allegation regarding the violation of not leaving side set back of 20'' was denied, though the

construction of the water tank on the top of the building was admitted and it was maintained that the water tank was only an adjunct to the

basement, ground and floors 1 and 2 and not any independent construction. A rejoinder was filed by the appellant and by reference to the

proforma of an agreement of sale, it was averred that the said proforma itself indicated that the 20'' side set back had not been left on the eastern

side. No evidence was adduced on behalf of either of the parties before the trial Judge and the application was argued on the basis of the affidavit

and the counter-affidavit only. The learned trial Judge, after referring to the affidavit, the counter-affidavit and the reply-affidavit and hearing

counsel for the parties, came to the conclusion that there was no wilful disobedience of the order of the Court dated 28th April, 1989 by the

respondent in any manner. It was found that the mere act of not leaving 20'' side set back on the eastern side, could not be said to be any

deliberate violation of the order of the Court, particularly because the ownership of Vasantha Rajamanickam on the basis of the agreement

between Kamalam and Narayanaswami could not be said to have been established. The learned trial Judges also found that by putting up the

water tank on the top floor, the respondent could not be said to have intentionally violated or flouted the orders of Court. On the basis of these

findings of fact, the learned trial Judge dismissed the application and refused to exercise his jurisdiction to punish the respondent for the alleged

contempt. Aggrieved, the appellant has come up in appeal.

The maintainability of the appeal, both u/s 19 of the Act and clause 15 of the Letters Patent, has been questioned by way of preliminary

objections by the respondent.

According to learned Counsel for the respondent, an appeal u/s 19(1) of the Act would lie only against any order or decision of the trial Judge,

passed in exercise of his jurisdiction to punish for contempt, by recording a punishment against the contemner, and in no other case. This objection

need not detain us in view of the long catena of authorities by the apex Court supporting the respondent. In Baradakanta Mishra Vs. Justice

Gatikrushna Misra, Chief Justice of the Orissa High Court, , it was held by the Bench at page 2260 :

........ The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by

motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and

intiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt

commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for

the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. Where the Court rejects a

motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and

such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not therefore, fall

within the opening words of Section 19, sub-section (1) and no appeal would lie against it as of right under that provision.

This opinion was again reiterated in Barada Kanta Mishra Vs. Orissa High Court, , wherein their Lordships observed :-

......... Only those orders of decisions in which some point is decided or finding is given in the exercise of jurisdiction by the High Court to punish

for contempt, are appealable u/s 19 of the Contempt of Courts Act, 1971.

In Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, , once again, while examining the ambit and scope of appeals u/s 19(1) of

the Act, the apex Court opined :

It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a Bench

of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from

any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated under S. 17 by issuance of a notice."" Again,

in D. N. Taneja v. Bhajan Lal, 1988 SCC 546 a 3 Judge Bench of the Supreme Court held in unequivocal terms that the right of appeal is

available under sub-section (1) of Section 19 only against any decision or order of a High Court in the exercise of its jurisdiction to punish for

contempt. Their Lordships then went on to notice that Article 215 of the Constitution, which provides 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, implied that the High Court could

exercise its jurisdiction only by punishing for contempt and not by refusing to punish. The Bench went on to opine :

....... It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the Court hears the parties and considers

the materials produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for

contempt. When the High Court acquits the contemner, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean

that the High Court should not in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by

the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the

Constitution.

This Court also in Vidya Charan Shukla v. Tamil Nadu Olympic Association (Contempt Appeal No. 5 of 1990 and L.P.A. No. 123 of 1990),

vide order dated 14th August, 1990, held that Section 19(1) of the Act provides for statutory appeal, as of right, only when the High Court makes

an order or decision in exercise of its jurisdiction to punish for contempt by recording punishment on the contemner and not when the High Court

refuses to exercise its jurisdiction by rejecting the application to initiate contempt proceedings or punish the alleged contemner. The Bench in Vidya

Charan Shukla''s case (supra), to which one of us, viz., Anand, C.J., was a party held that for the purpose of Section 19 of the Act in the matter of

an appeal, there is no distinction between a civil contempt or a criminal contempt and that unless the trial Judge exercised his power to punish for

contempt in exercise of the contempt jurisdiction, recourse could not be had to any appeal u/s 19(1) of the Act. The Division Bench observed :-

......... Thus, on the very plain language of Section 19(1), (2) and (3), it emerges that the Act has provided for an appeal against a decision of the

High Court, in exercise of its jurisdiction to punish for contempt, and consequently, an appeal would lie only where the jurisdiction to punish for

contempt has been exercised and the contemner has been punished, and in no other case. If the High Court has refused to exercise its jurisdiction

to punish for contempt on the ground that no case for contempt on the ground that no case for contempt has been made out or any such other

ground, such an order of the High Court cannot be said to be an order passed in exercise of its jurisdiction to punish for contempt ........ ""There

appears to be a sound rationale behind the restricted right of appeal provided u/s 19 of the Act only against the order or decision where the

contemnor has been punished and against no other order. It appears to us that the legislature by restricting the right of appeal u/s 19(1) of the Act

only to cases where an order of punishment had been recorded in exercise of its jurisdiction to punish for contempt and not in cases where the

Court refused to punish for contempt was actuated by the common sense policy of preventing vexatious litigation. It would, in our opinion, be

vexatious, if a party to a litigation could pursue applications to commit his opponent for contempt of Court, in the court of appeal, when the trial

Court whose process, it was alleged had been disobeyed was of the opinion that no vindication of its own order was necessary. To allow appeals

in such cases would amount to encouraging vexatious litigation. It is for this reason that the right of appeal under S. 19(1) of the Act has been

restricted to appeal against order or decision where punishment has been recorded.

Learned Counsel for the appellant, however, relied upon a judgment of a Division Bench of the Delhi High Court in Vishwanath Khana v. M/s.

Ram Swaroop Rastogi & Sons, 1980 Cri LJ 109 in support of the maintainability of the appeal u/s 19(1) of the Act. The Delhi High Court held at

page 46 :

An appeal u/s 19(1) of the Act would lie in a case where after initiating proceedings for contempt, the High Court finds that the alleged contemner

is not guilty of contempt and declines to punish him. It could not be urged that an order passed finally not to punish the contemner is not

appealable, u/s 19 of the Act.

With respect to the Division Bench, we find that in view of the judgments of the Supreme Court, noticed above, the law laid down by the Delhi

High Court cannot be said to be good law. It is relevant to point out that the Division Bench of the Delhi High Court did not notice the judgments

of the Supreme Court in Barada Kanta Mishra Vs. Orissa High Court, and Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, . Of

course, the judgment in D. N. Taneja v. Bhajan Lal, 1988 SCC 546 is later in point of time. The Division Bench of the Delhi High Court failed to

notice the subtle distinction between an order passed in exercise of its jurisdiction to punish for contempt and refusal to exercise that jurisdiction,

which was clearly brought out in the judgments noticed above. With respects to the Division Bench of the Delhi High Court, we are unable to

follow the said Judgment. Moreover, in Vidya Charan Shukla''s case (supra) this Court has considered in depth the ambit and scope of an appeal

u/s 19(1) of the Act by reference to a catena of authorities and held that recourse to an appeal u/s 19(1) of the Act cannot be had in cases where

the trial Judge declines to punish the alleged contemner and rejects the application filed u/s 10/12 of the Act. Such an order, it was found, could

not be construed to be an order passed in exercise of the jurisdiction to punish for contempt.

The preliminary objection about the lack of maintainability of the appeal u/s 19(1) of the Act, therefore, succeeds and we hold that in the facts

and circumstances of the case, the order of the learned trial Judge refusing to commit the respondent for contempt of Court is not appealable, as of

right, u/s 19(1) of the Act.

We shall now consider whether an appeal under clause 15 of the Letters Patent is competent against the order of the learned trial Judge.

According to the learned Counsel for the respondent, the appeal is also not competent under clause 15 of the Letters Patent, firstly for the

reason that the Act is a law defining and limiting the exercise of power under that Act and where an appeal is not competent under the Act,

recourse cannot be had to any other law for maintaining the appeal, and secondly, for the reason that an order passed in contempt proceedings,

whereby no punishment is recorded against the alleged contemner, cannot be construed to be a ""judgment"" within the meaning of clause 15 of the

Letters Patent, thereby ousting recourse to the Letters Patent.

In Contempt Appeal No. 5 of 1990 and L.P.A. No. 123 of 1990, while disposing of C.M.P. No. 9042 of 1990 the Division Bench of this

Court in Vidya Charan Shukla''s, case (supra) dealt with an identical submission raised before the Bench. The Bench noticed that clause 15 of the

Letters Patent is subject to clause 44 of the Letters Patent, rendering clause 15 subject to the legislative powers of amendments and modifications.

The Bench opined that an appeal is a creature of a statute and unless the right of appeal is specifically conferred, a litigant has no right to prefer an

appeal. It observed that clause 15, subject to be restrictions and limitations contained therein, or in any other statute, confers on a litigant, a right to

file an appeal against any judgment and therefore, unless an appeal from an order of a single Judge is prohibited by any statute, recourse to Clause

15 can be made by a litigant to file an appeal though interference under clause 15 would depend upon the conditions contained in that clause being

satisfied. After referring to number of authorities, the Division Bench held :

Section 19(1) of the Act, indeed, restricts the right of appeal to the Division Bench from an order or decision of a single Judge and to the

Supreme Court from an order or decision of a Division Bench, passed in exercise of the High Court''s jurisdiction to punish for contempt where

any punishment is recorded against the contemner. It does not provide for an appeal in any other eventuality. It is therefore, only in the field

occupied by Section 19(1) of the Act that recourse to clause 15 of the Letters Patent cannot be had and not in cases not governed by Section

19(1). As a matter of fact, Section 22 of the Act itself declares that the provisions of the contempt of Courts Act shall be in addition to, and in

derogation of, the provisions of any other law relating to contempt. The other law referred to in Section 22 would also embrace Article 215 of the

Constitution of India which declares every High Court to be a court of record, having all the powers of such a court, including the power to punish

for contempt of itself. Any order passed by the Court in exercise of its inherent jurisdiction, as a court of record, except which is appealable u/s

19(1) of the Act, would, if it qualifies the test of being a ''judgment'' within the meaning of clause 15 of the Letters Patent and does not fall in any of

the excluded categories enumerated therein, would be appealable under that clause. If the intention of the Legislature was to take away the power

of the High Court to entertain appeals in all contempt matters, there was no difficulty in saying so in unequivocal terms in Section 19(1) itself. The

only effect that Section 19(1) of the Act can have on clause 15 of the Letters Patent is that an appeal against an order or decision passed by the

High Court in exercise of its jurisdiction to punish for contempt would lie, as of right, under that section and not under clause 15 of the Letters

Patent because, by virtue of clause 44 of the Letters Patent, the special provisions of Section 19(1). would prevail over the general right of appeal

contained in clause 15 of the Letters Patent.

In taking the view noticed above, the Division Bench found support from the following observations of the apex Court in Umaji v. Radhikabai, AIR

1986 SC 127 :

The position which emerges from the above discussion is that under clause 15 of the Letters Patent of the Chartered High Courts, from the

judgment (within the meaning of that term as used in that clause) of a single Judge of the High Court an appeal lies to a Division Bench of that High

Court and there is no qualification or limitation as to the nature of the jurisdiction exercised by the single Judge while passing his judgment,

provided an appeal is not barred by any statute (for example, Section 100A of the Code of Civil Procedure, 1908) and provided the conditions

laid down by clause 15 itself are fulfilled. The conditions prescribed by clause 15 in this behalf are : (1) that it must be a judgment pursuant to

Section 108 of the Government of India Act of 1915, and (2) it must not be a judgment falling within one of the excluded categories set out in

clause 15.

The above judgments are thus a clear answer to the preliminary objection raised by the respondent.

We accordingly hold that except to the extent of the field occupied by S. 19(1) of the Act, an appeal would be competent under clause 15 of

the Letters Patent, provided it satisfies the conditions prescribed in clause 15 of the Letters Patent itself.

Does the impugned order satisfy the conditions prescribed by clause 15 of the Letters Patent in this behalf, viz., (i) is it a ""judgment"" within the

meaning of that clause, and (ii) does it fall in any of the excluded categories set out in the clause ?

The Letters Patent of the High Court does not define as to what a ""judgment"" is. However, the meaning and scope of the expression

judgment'' within the meaning of clause 15 of the Letters Patent has come up for consideration before this Court in a number of cases as also

before the other High Courts in the country and the Supreme Court of India. The near unanimity of the view appears to be that the expression

Judgment"" in clause 15 has to be given a rather liberal construction and that an order of a single Judge will amount to a ""judgment"" if that order

finally determines some claim of right of the aggrieved party, irrespective of the fact whether the said order is made in the main cause or suit or in

the proceedings incidental or ancillary thereto. Even if the order does not finally dispose of the suit, pro tanto, it would still be a judgment"" if it

determines some vital rights of the parties in regard to the matter in controversy and decides some bone of contention as between the parties. A

Full Bench of the Delhi High Court, in Begum Aftab Zahani v. Shri Lal Chand Khanna AIR 1969 Delhi 85, explained the ambit and scope of the

expression ""Judgment"" within the meaning of clause 10 of the Letters Patent (Lahore) (which is in pari materia to clause 15 of the Letters Patent) in

the following words at page 39 :

We feel that we have to construe the word ''judgment'' in Section 10 of the Act in its own context and in the background of its own statutory

scheme and that the ratio of the Privy Council decision merely goes to suggest that the word ''judgment'' as used in the Letters Patent may not be

restricted to the literal definition of the expression ''judgment as contained in the Civil P.C. The Letters Patent when providing for appeals from

Judgments, in our view, contemplates judgments which have both the effect of a decree as defined in the Code and of such order as may affect the

merits of a controversy between the parties by determining some disputed right or liability. A judgment may thus be either final or preliminary or

interlocutory. In order to decide whether an adjudication should be treated as a ''judgment'' within the meaning of clause 10 of the Letters Patent,

we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its

effect, whatever its form and whatever the nature of the proceeding in which it is made, is to put an end to the suit or proceeding, or of its effect, if

not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably a ''judgment'' within the meaning of this clause. Other

decisions or determinations adjudication upon a disputed controversy on the merits in a suit or proceeding may also appropriately fall within the

contemplation of the word ''judgment''. It is not possible to lay down any definite rule which would meet the requirements of all cases and all that

we may say is that in determining whether an order or decision constitutes a ''judgment'' or not, the Court has to take into consideration the nature

of the order and its effect upon the suit or the civil proceeding in which it is made. Each case would thus depend on its own peculiar facts and

circumstances.

In Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, , after a detailed discussion about the meaning of the expression

''Judgment'' within the meaning of Clause 15 of the Letters Patent (Bombay) their Lordships opined that in order to find out whether an order is

required to be found is whether the order affects the merits of the action between the parties by determining some right or liability between them.

According to their Lordships, nature and effect of the order has to be examined in order to ascertain whether there has been determination of any

vital right or liability of the parties in the controversy in the proceedings.

In L.C.T.L.P.L. Palaniappa Chettiar and Others Vs. M.R. Krishnamurthy Chetty and Others, , a Full Bench of this Court, after exhaustively

dealing with the question, formulated four tests to determine whether an order of a single Judge is a ""Judgment"" or not, under clause 15 of the

Letters Patent. In the words of the Full Bench at page 8 :

........ The tests are (1) whether the order or judgment of the single Judge terminates the suit or proceedings; (2) whether it affects the merits of the

controversy between the parties in the suit itself ?; (3) a test that can be considered a refinement of test No. 2, but which upon juristic principle

should be separately stated, namely, whether it determines some right or liability as between the two parties ?; and (4) the negative test that has

found express recognition in the dicta of White, C.J., with reference to (1905) ILR 29 Bom 249, and has not been disapproved by their Lordships

of the Supreme Court in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , but which, instead, would appear to have been impliedly

approved, namely, whether, apart from the actual words in the lis or proceeding, ''a conceivable order'' or an order to the contrary effect, would

have disposed of the suit and would come within the definition of ''judgment''.

The controversy now appears to have been set at rest by the apex Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , wherein

after a review of various judgments, their Lordships observed at page 1817 :

In order to determine whether an order passed by a trial Judge can be said to be a ''judgment'' the following considerations must prevail with the

Court :-

That the trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass

discretionary or interlocutory orders with due regard to the well-settled principles of civil justice. Thus, any discretion exercised or routine orders

passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or otherwise the

appellate Court (Division Bench) will be flooded with appeals, from all kinds of orders passed by the trial Judge. The Court must give sufficient

allowance to the trial Judge and raise a presumption that any discretionary order which he passed must be presumed to be correct unless it is ex

facio legally erroneous or causes grave and substantial injustice. That the interlocutory order in order to be a judgment must contain the traits and

trappings of finality either when the order decides the question in controversy in an ancillary proceeding or in the suit itself or in a part of the

proceedings.

and went on to add :

Whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment, within the

meaning of the Letters Patent.

and then held :

Thus, in other words every interlocutory order cannot be regarded as a Judgment but only those orders would be judgments which decide matters

of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the

trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score

can be corrected by the appellate Court in appeal against the final judgment.

From a review of the aforesaid judgments, it clearly emerges that the expression ""Judgment"", within the meaning of clause 15 of the Letters

Patent, implies an order which effectively decides some right or liability in controversy between the parties to the main proceedings, irrespective of

the fact whether such an order is final or made at any interlocutory stage. The nature of the order has to be examined to ascertain whether there

has been determination of any right or liability between the parties. Thus, the nature of the order passed and its effect is the determinative factor, to

find out whether or not a particular order qualifies the test of being a ""Judgment"" within the meaning of clause 15 of the Letters Patent. Does an

order or decision of the trial Judge refusing to punish an alleged contemner for contempt amount to a ""Judgment"" within the meaning of clause 15 of

the Letters Patent ? Does such an order determine any right or liability of the parties to the proceedings ?

The proceedings which were initiated by the appellant herein were proceedings to punish the alleged contemner (respondent herein) for having

flouted the orders of this Court under the Act. Contempt proceedings are a matter between the Court and the alleged contemner and the person

who moves the machinery of the Court for punishing an alleged contemner, only brings to the notice of the Court certain facts which, in his opinion,

constitute contempt of Court. He has no other role. The only two parties, therefore, in a contempt proceedings are the Court and the alleged

contemner and even if the proceedings have been initiated at the instance of an applicant, he is only an informant of the Court and cannot be

treated as a party-juris, entitled to any order of commitment of the opponent as of right. If the trial Judge, whose attention has been drawn by the

appellant to certain facts which, in the opinion of the applicant, amount to flouting of the orders of the Court, finds that its order has not been

disobeyed, obviously he would refuse to punish the alleged contemner, as no vindication of his own order has become necessary. The trial Judge

would, under these circumstances, reject the application and refuse to commit the alleged contemner. In doing so, the trial Judge would not be

determining any right of the applicant, nor imposing any liability on him. Such an order cannot, therefore, be said to be a ""judgment"" within the

meaning of clause 15 of the Letters Patent. It is elementary that the right of appeal can only be available to an aggrieved party and an aggrieved

party for the purposes of proceedings for contempt of Court has been held to be only the party who has been punished for contempt, and not the

party whose application has been rejected. See 1988 SCC 546. The power of the High Court to institute proceedings for contempt and punish,

where necessary, is a special jurisdiction which is inherent in all courts of record. Such proceedings are not governed either by the Code of

Criminal Procedure or the Code of Civil Procedure. The jurisdiction is inherent in the Court so as to uphold the majesty and dignity of the Law

Court and the image of the same in the mind of the public at large. This jurisdiction is necessary because the administration of justice cannot be

effective unless respect for it is fostered and maintained. Courts cannot function properly unless they are allowed to keep their dignity and unless

there vests in them a power to enforce discipline and respect in its administration of justice and to enforce its orders. Disobedience of its orders

wilfully, interferes and shakes the very pillars of administration of justice and the party guilty of such disobedience has to be punished for

committing contempt of Court. Recourse to jurisdiction to punish the contemner for omitting contempt of Court, however, is not meant for settling

private scores, or to wreak private vengeance. So far as the private rights of the parties are concerned, they have, to be settled through

appropriate proceedings and not by invoking the contempt jurisdiction. It is the Court which is the sole and exclusive Judge of what amounts to a

contempt of Court and in case the Court itself finds that nothing has been done, which necessitates the exercise of its contempt jurisdiction, it is not

open to any party to insist that the alleged contemner must be punished. To proceed or not to proceed against the alleged contemner is a matter of

Court''s discretion and an applicant has no right to ask for the discretion to be exercised in a particular manner. Generally speaking, words and

acts obstructing administration of justice are considered as criminal contempt, whereas disobedience of the orders or the process of court are

classified as contempt in procedure of civil contempt. But, in either case, the matter essentially is between the Court and the alleged contemner.

Even where it is a civil contempt and the order is inter parts, to the extent that the Court is moved ""by the applicant, it does not make the applicant

a party to the proceedings and the matter remains exclusively between the Court and the alleged contemner. In Collector of Bombay v. Issac

Penhas, AIR 1948 Bom 103 a Full Bench of the Bombay High Court (prior to the coming into force of the 1971 Act) held that an appeal lies to

the Court within the meaning of clause 15 of the Letters Patent from the order of a single Judge committing a party to prison or ordering him to pay

a fine for disobedience of the order of Court because such an order is final. The Bench went on to observe at page 105 :

...... it would be vexatious if a party to litigation could pursue applications to commit his opponent for contempt of Court to the Court of Appeal,

when the trial Court''s whose process it was alleged had been disobeyed was of opinion that no vindication of its own order was necessary.

The Full Bench noticed the earlier Division Bench Judgment of the same High Court in Narendrabhai Sarabhai Hatheesing Vs. Chinubhai Manibhai

Seth, wherein it had been opined at page 315 :

Does the order appealed from decide any question between the parties and determine any right or liability ? On the notice of motion there was, in

my opinion, no question between the parties. Proceedings for contempt are matters entirely between the Court and the person alleged to have

been guilty of contempt. No party has any statutory right to say that he is entitled as a matter of course to an order for committal because his

opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted, and if the

Court thinks that it was so, then the Court in its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application

for contempt raises any question between the parties, so that any order made such an application by which the Court in its discretion refused to

take any action against the party alleged to be in the wrong can be said to raise any question between the parties.

We are in respectful agreement with the aforesaid exposition of law.

As against the aforesaid judgments learned Counsel for the appellant placed reliance on In Re: S. Govind Swaminathan, to urge that a Letters

Patent Appeal was competent under clause 15 of the Letters Patent even where the Court had refused to punish the alleged contemnor for

contempt. That judgment however, does not lay down any such proposition as is canvassed and, as a matter of fact, we find that judgment to be

quite irrelevant for the purpose of deciding the maintainability of an appeal under clause 15 of the Letters Patent, at the instance of a party whose

application to punish the alleged contemner had been rejected by the trial Judge.

Reliance placed on Noorali Babul Thanewala Vs. Sh. K.M.M. Shetty and others, also, in our opinion, is quite misplaced. What was laid down

in that case was that breach of an injunction or breach of an undertaking given to a Court by a person in a civil proceeding on the faith of which the

court sanctioned a particular course of action is misconduct, amounting to contempt. There is no quarrel with that proposition. In the case before

the Supreme Court, the violation was of the undertaking given to the Court and a finding was recorded about the breach of that undertaking which

resulted in the alleged contemnor being committed for contempt of court for wilful disobedience of the undertaking given by him. Besides being

directed to pay fine, he was also directed to deliver vacant possession of the premises. That judgment does not deal with the proposition under

consideration.

As a result of the aforesaid discussion, we hold that a Letters Patent Appeal under Clause 15 would not lie against any order passed in

exercise of the contempt jurisdiction by the High Court where the trial judge refuses to take cognizance of an application seeking to punish the

opposite party for contempt of Court or where it rejects the application after being satisfied that its order had not been flouted and was of the

opinion that no vindication of its order was called for by committing the alleged contemner for contempt of Court. Since in the instant case, the

learned trial Judge, after a detailed discussion, came to the conclusion that his order had not been violated or flouted by the respondent and in

exercise of his proper judicial discretion, refused to commit the respondent for the alleged contempt of Court, such an order of refusal is not a

judgment"" within the meaning of Clause 15 of the Letters Patent and as such, is not appealable under that clause. The second preliminary

objection also, therefore, succeeds and the appeal is held to be not maintainable under clause 15 of the Letters Patent either.

In the view that we have taken, it is no longer necessary for us to consider the merits of the case. However, even on merits, no interference is

called for against the order of the learned trial Judge. From a perusal of the affidavits filed by the parties and the other documents placed on the

record, we find that the allegations on the basis of which the appellant had sought punishment of the contemnor for the alleged contempt have not

at all been established. Undoubtedly, a charge of contempt is a serious charge and the party levelling the accusation must establish the charge

beyond a reasonable doubt, as has been laid down in In Re B Yegnanarayaniah, AIR 1974 Mad 313.

The facts of the case have been noticed by the learned single Judge in his judgment and we need not recapitulate the same. From the

established facts, however, it is not possible to hold that the act of not leaving 20'' side set back on the eastern side within the portion by the

respondent could be construed to be any deliberate violation of the interim order of the Court. The appellant has attempted to read in the interim

order certain directions in that behalf, which are not there. The learned Judge was, therefore, right in holding on facts that the respondent had not

violated any condition with regard to leaving 20'' side set back. The learned trial Judge, in our opinion, was also right in holding that the

construction of the water tank on the top floor, in the facts and circumstances of the case, did not amount any wilful or intentional disobedience of

the interim orders of the court. Similar is the position with regard to the construction of the fourth floor (third floor, as referred to by the appellant)

or the putting up of the scaffolding. The alleged acts of the respondent, in our opinion, do not amount to any deliberate violation of the interim

directions of the learned trial Judge. Thus, even on facts, we find that there has been no violation of the orders of this court, much less wilful or

intentional, by the respondent herein. There has been no abuse of the process of the Court, calculated to hamper the due course of judicial

proceedings or the orderly administration of justice by any wilful or contumacious conduct of the respondent. The appellant has, as held by the

learned trial Judge failed to establish the charges levelled by her against the respondent in the contempt application, which was rightly dismissed.

Whether a party can take recourse to the provisions of Order 39, Rule 2-A of the CPC in a given set of circumstances and the refusal of the

Court to take action under that provision would entitle the party to maintain an appeal or revision under the CPC is entirely a different matter and

we are not called upon to express any opinion on that aspect and we refrain from doing so.

Thus, for all that has been said above, we find no merit in this appeal. We have not been perusuaded to interfere with the exercise of the

discretion by the learned trial Judge which, in our opinion, has been properly and judiciously exercised. The appeal fails and is dismissed.

Before parting with the judgment, we would, however, like to emphasise that the respondent shall remain bound by the undertaking affidavit

and the terms contained therein, should it be ultimately found in the writ petition that the constructions, including the alleged unauthorised ones,

could not be regularised under the rules, the respondent is bound to demolish the same at his own cost and expense and as per the affidavit, as has

been observed by the learned trial Judge.

Appeal dismissed.