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2008 DIGILAW 668 (KER)

Paul v. Bharathan

2008-10-24

A.K.BASHEER, H.L.DATTU

body2008
JUDGMENT H. L. Dattu, C. J. 1. This contempt appeal is filed against the orders passed by the learned Single Judge in Contempt Case (Civil) No. 1153/2007 dated 18/07/2008. Obviously, this appeal is filed under S.19(1) of the Contempt of Courts Act, 1971. 2. When the matter came up for admission before the Court, we asked the learned counsel appearing for the appellant to tell us with regard to the maintainability of the appeal as such. The learned counsel, while answering the query posed by us has brought to our notice the observations made by the Apex Court in the case of Midnapore Peoples Coop. Bank Ltd. and Others v. Chunilal Nanda and Others, 2006 KHC 795 : 2006 (5) SCC 399 : AIR 2006 SC 2190 : JT 2006 (11) SC 203 : 2006 (3) KLT SN 112 : 2006 CriLJ 2903 : 2006 (102) Cut LT 45 and also the decision of this Court in the case of Rasheed v. Saji Basheer, 2005 KHC 542 : 2005 (2) KLT 106 : ILR 2005 (2) Ker. 13. In the first case, the Apex Court has stated as under: "The answer to Point (1) is that the following position emerges from case law in regard to appeals against orders in contempt proceedings: I. An appeal under 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 under S.19. In special circumstances, they may be open to challenge under Art.136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of Court was 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 S.19. 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 S.19. 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 S.19 can also encompass the incidental or inextricably connected directions. V. If the High Court 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 Single Judge and there was a provision for an intra Court appeal), or by seeking special leave to appeal under Art.136 of the Constitution (in other cases)."� 3. In the second case, this Court has observed as under: "3. In the instant case, Writ Petition No. 31022 of 2003 was closed on the submission of the Government Pleader that payment of dues on account of the service rendered will be made in six months time. If that is an undertaking within the meaning of S.2(b) of the Contempt of Courts Act and a wilful breach of the same is committed, then it would be an act of contempt punishable under S.12 thereof. In the case on hand, the learned Single Judge obviously did not treat the statement made by the respondents as an undertaking and that is why he opined that there was no act of contempt on the part of the respondents. If the appellant is aggrieved by the same, he has to only invoke the provisions under Art.136 of the Constitution as S.19 of the Contempt of Courts Act gives a right of appeal if the contemnor is committed for contempt and there is no such appeal provision when a contemnor is discharged. But, here we have to add a note of caution. But, here we have to add a note of caution. While disposing of the contempt case and discharging the contemnor if the Court passes any order which adversely affects the respondent, then the respondent can always file Writ Appeal against such order of a Single Judge only if the said order runs beyond the scope of the order passed in the original proceedings, as such part of the order is not governed by the contempt of Courts Act. But, in the instant case such situation does not arise."� 4. One M. Bharathan had filed WP (C) No. 14933/2006 before this Court, inter alia requesting this Court to issue a direction to the respondent / Irinjalakuda Municipality to consider his representation (Ext. P5) and to take appropriate proceedings for demolition of a portion of the second respondents building, which, according to the petitioner was causing dangers to the petitioners building and also the other tenants of the second respondent. This Court by its order dated 2nd August, 2006 has allowed the writ petition and has directed the Municipality to invoke their powers under S.411 of the Municipalities Act and to demolish that portion of the second respondents building which is causing dangers to the petitioners building and also the other tenants of the second respondent. 5. Sri. Paul, who was the second respondent in the writ petition has filed Review petition before this Court in RP No. 763/2006. This Court, while disposing of the review petition, had made it clear that the cost that the Municipality may incur shall be paid by the writ petitioner alone. 6. Since the Municipality did not comply with the positive direction issued in WP (C) No. 14933/2006 dated 2nd August, 2006, and RP No. 763/2006, the petitioner in the writ petition had filed Contempt Petition No. 1153/2007. The prayer in the contempt petition was to initiate appropriate contempt proceedings against the Secretary of the Municipality for the wilful and deliberate disobedience of the orders and directions issued by this Court. 7. At the direction of the Court, Paul came to be impleaded as the additional second respondent in the contempt proceedings. The prayer in the contempt petition was to initiate appropriate contempt proceedings against the Secretary of the Municipality for the wilful and deliberate disobedience of the orders and directions issued by this Court. 7. At the direction of the Court, Paul came to be impleaded as the additional second respondent in the contempt proceedings. Learned Judge, while disposing of the contempt petition by his order dated 18th July, 2008, has directed the writ petitioner / Bharathan and Paul, the 2nd additional respondent to share in the ratio of 70:30 the expenditure / cost incurred by the Municipality for demolition of the three storied building belonging to Sri. Paul, the appellant in this contempt appeal. 8. Aggrieved by the aforesaid direction issued by the learned Judge, the additional second respondent Sri. Paul has approached this Court. 9. S.19 of the Contempt of Courts Act, 1971 reads as under: "19. Appeals.-- (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt" (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court. (2). Pending any appeal, the appellate Court may order that" (a) the execution of the punishment or order appealed against be suspended; (b) if the appellant is in confinement, he be released on bail; and (c) the appeal be heard notwithstanding that the appellant has not purged his contempt. (3). Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2). (4). An appeal under sub-section (1) shall be filed" (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."� 10. (4). An appeal under sub-section (1) shall be filed" (a) in the case of an appeal to a Bench of the High Court, within thirty days; (b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."� 10. A reading of the aforesaid provision would clearly indicate that, it is from a decision passed by a learned Single Judge to punish for contempt an appeal would certainly lie before this Court under S.19 of the Contempt of Courts Act. This position is explained by a Bench of this Court in the case of Jaya Joy v. M. Thomas John (Con. Appeal No. 2 of 2006 disposed of on 9th June, 2006). In the said decision this Court has stated as under: "In this contempt appeal challenge is to the order dated 15th March, 2006. In the original contempt petition the learned Single Judge only gave some directions. This is not a case where there might have been any conviction and sentence or fine under the provisions of the Contempt of Courts Act, 1971. Such an order in the view of this Court would not be amenable to appeal as made out from a reading of S.19 of the Contempt of Courts Act. An appeal as per the provisions contained in S.19 would lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt. Sub-section (1) of S.19 has been interpreted by the Honourable Supreme Court by observing that only if some conviction is recorded that an appeal would be competent."� 11. In the present case, the learned Judge has not passed any order imposing any punishment for contempt either on Bharathan or Paul who is the appellant in this appeal. He has only issued certain directions and those directions are to apportion the cost incurred by the Municipality to demolish the three storied building belonging to the appellant. If, for any reason, the appellant is aggrieved by the said direction, necessarily he has to file appropriate petitions in appropriate proceedings. In that view of the matter the Contempt Appeal requires to be rejected and it is rejected. 12. IA No. 609/2008 is closed. Ordered accordingly.