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1993 DIGILAW 47 (GUJ)

P. T. CHACKO v. VARESH SINHA

1993-02-02

B.C.PATEL, B.S.KAPADIA

body1993
B. S. KAPADIA, J. ( 1 ) IN this petition the petitioner has prayed for prosecuting and punishing the respondent for committing wilful disobedience of the order passed by this Court on 15. 5. 1992 under the provisions of the Contempt of Courts Act 1971 Copy of the said order is produced at Annexure-B to the petition. On perusal of the said order it is clear that the Supreme Court in the S. L. P. (Civil) No. 6572 of 1992 has granted special leave to appeal. In the said appeal interloutory application for stay was filed and on the said application the Supreme Court has passed the following order:"during the pendency of the appeal there shall be stay of the operation of the impugned judgment on the condition that the appellant pays to the respondent the subsistence allowance for the period from the date of the dismissal onwards within two months from today in accordance with law and continues to pay the subsistence allowance in future till the final disposal of the case". ( 2 ) HOWEVER when the writ was sent to this Court the following words are added:"and this Court doth further order that this order be punctually observed and carried into execution by all concerned". In pursuance of the said writ received by this Court the Addl. Register of this Court after reproducing the above order issued the following writ:"it is hereby accordingly ordered that the above order of the Supreme Court be carried into execution as ordered by the Supreme Court". Said writ is also deated 15. 5. 1992 though somebody on behalf of the Additional Registrar has signed the same on 29. 5. 1992. ( 3 ) UNDER the provisions of the Contempt of Courts Act this Court has jurisdiction to deal with contempts of this Court as well as that of the subordinate Courts. It it is a contempt of the Supreme Courts this will not have jurisdiction to entertain such petition. ( 4 ) MR. G. M. Joshi learned Advocate appearing for the petitioner has strenuously argued this matter. He has first submitted that Annexure-B to this petition is not writ or order of the Supreme Court. It is true that the Supreme Court in its writ has directed that its order be punctually observed and carried into execution by all concerned. G. M. Joshi learned Advocate appearing for the petitioner has strenuously argued this matter. He has first submitted that Annexure-B to this petition is not writ or order of the Supreme Court. It is true that the Supreme Court in its writ has directed that its order be punctually observed and carried into execution by all concerned. 11 said direction is committed breach of il will be a breach of the order of the Supreme Court and therefore this Court will not have jurisdiction to entertain the present application. ( 5 ) IT was further pointed out that if any order of the Supreme Court is to be executed by this court it can be done as per the provisions of Order 45 Rule 15 of the C. P. C. However there is no other provision either under the Appellate Side Rules of this Court or under the Supreme Court Rules by which this Court is authorised to pass order for execution or enforcement of the order passed by the Supreme Court. In that view of the matter Annexure-B to this petition is nothing but the order or writ of the Supreme Court and there cannot be any order of this Court unless it is passed on the application for enforcement or execution of the Supreme Court as required under Order 45 Rule 15 of C. P. C. It is not the case of the petitioner that it is the order in execution proceedings. It is interesting to note that the writ of the Supreme Court is dt. 15. 5. 1992 and what is produced at Annexure-B also dt. 15. 5. 1992. It is rather surprising as to how this Court can pass order on the date on which the Supreme Court has issued the writ. It is therefore clear that Annexure-B to the petition is nothing but communication of the order passed by the Supreme Court. It is also clear from the endorsement made on the writ of the Supreme Court by the Supreme Court Department of this Court that said writ was received on 20. 5. 1992. ( 6 ) IT may be pointed out that if the order or writ of the Supreme Court is committed breach of the petitioner may if he so desires file an application for contempt in the Supreme Court of India. 5. 1992. ( 6 ) IT may be pointed out that if the order or writ of the Supreme Court is committed breach of the petitioner may if he so desires file an application for contempt in the Supreme Court of India. However on the basis of the said writ if this Court entertains the petition there are all chances of inconsistent orders being passed. On that ground also we would like to exercise our discretion in not entertaining the present M. C. A. ( 7 ) IN view of what has been stated above it is not necessary to deal with other arguments advanced by Mr. Joshi. However when technical argument relating to the words writ and/or process used in the definition of civil contempt in Sec. 2 (b) of the Contempt of Courts Act is made we would like to mention that it it is writ or process of this Court certainly it would mount to civil contempt of this Court and if it is merely a communication of the writ or order of the Supreme Court of India it would not amount to contempt of this Court. It may be stated that a writ would precede an order of the Court. As there is no order of this Court it is not a writ. It is also not a process to call any witness or party remain present and therefore it is not a process. In that view of the matter we are unable to agree with the submission of Mr. Joshi that there is contempt of this Court because of the order Annexure-B. ( 8 ) MR. Joshi further sumbitted that the words used by the Supreme Court in the writ are this order be punctually observed and carried into execution by all concerned and the word enforce is not used. He further submitted that any order of the Supreme Court is enforceable under Art. 142 of the Constitution of India through out the territory of India and that once when it is enforceable it can be enforced either by way of execution or by way initiating contempt proceedings. There cannot be two opinion on this point. Once when an order becomes enforceable it can be enforced either as provided under Order 45 Rule 15 of the C. P. C. or as provided under the Contempt of Courts Act. There cannot be two opinion on this point. Once when an order becomes enforceable it can be enforced either as provided under Order 45 Rule 15 of the C. P. C. or as provided under the Contempt of Courts Act. Merely because the order in question is enforceable through out the territory of India it cannot be said that any Court can initiate proceedings for committing breach of the order of the Supreme Court. However if an order is passed by this Court in execution of the order of the Supreme Court as provided under Order 45 Rule 15 of the C. P. C. certainly it would be an order in execution in enforcing the order of the Supreme Court and therefore in case of breach of the order passed by this Court in execution of the order of the Supreme Court this Court will have jurisdiction. As stated above the aforesaid communication is not an order passed in execution of the order of the Supreme Court inasmuch as it is not the result of the application for execution as provided under Order 45 Rule 15 of the C. P. C. Therefore also we are unable to agree with the submission made by Mr. Joshi. Accordingly the M. C. A. is dismissed. Rule discharged. Application Dismissed. .