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2008 DIGILAW 801 (MP)

SULOCHANA MALLAIYA v. S. N. SHRIVASTAVA

2008-07-01

R.K.GUPTA, R.S.GARG

body2008
Judgment R.S.Garg, J. ( 1. ) Shri V.S.Shroti, learned senior counsel for the appellant after taking us through the provisions of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 {No.14 OF 2006} submitted that as the order under challenge has tenets of an order under Article 226, of the Constitution of India and as the directions issued by the learned Single Judge could not be issued in its contempt jurisdiction, the same have to be presumed to be the directions under Article 226 of the Constitution of India and, therefore, the appeal is maintainable. ( 2. ) It is also submitted by him that the proviso appended to Sub-section {1} of Section 2 would not come in his way because the nature of the order passed by the learned Single Judge in fact decides the rights of the parties finally and, therefore, the order would not be an interim order or an interlocutory order. ( 3. ) It is also submitted by him, placing reliance upon the judgments of the Supreme Court in the matter of J.S.Parihar Vs. Ganpat Duggar and Others {1996 AIR Supreme Court Weekly 4272} and Midnapore Peoples Cooperative Bank Limited and Others Vs. Chunilal Nanda and Others {2006} 5 Supreme Court Cases 399 that if the order passed by the learned Single Judge is deciding the rights of the parties and such an order could only be passed by the learned Single Judge in his jurisdiction under Article 226 of the Constitution of India then such an order can be challenged in an intra-court appeal. ( 4. ) After taking us through the provisions of Section 19 of the Contempt of Courts Act, learned senior counsel for the appellant submitted that an appeal under Section 19 of the Contempt of Courts Act would not be maintainable but an appeal under Section 2 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 would be maintainable. ( 5. ) Shri Sankalp Kochar, learned counsel for respondent No. 1, on the other hand, submitted that the provisions of the Letters Patent which provided for appeal under Clause 10 having been repealed, an appeal cannot now be filed against every order passed by a learned Single Judge. ( 5. ) Shri Sankalp Kochar, learned counsel for respondent No. 1, on the other hand, submitted that the provisions of the Letters Patent which provided for appeal under Clause 10 having been repealed, an appeal cannot now be filed against every order passed by a learned Single Judge. According to him, an appeal would be maintainable before the Division Bench if the appeal is maintainable under Section 2 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005. He also submitted that the order passed by the learned Single Judge is an explanatory order and is virtually a direction to the alleged contemnors to purge the contempt. ( 6. ) We have heard the parties at length. Clause 10 of the Letters Patent read as under :- "10. Appeal to the High Court from Judges of the Court.- And we do further ordain that an appeal shall lie to the said High Court of judicature at Nagpur 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 the 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 the exercise of the powers of superintendence under the provisions of section one hundred and seven 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 one hundred and eight of the Government of India Act, and that notwithstanding anything herein before provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section one hundred and eight nof the Government of India Act, made 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 of appeal from other judgments of Judge of the said High Court or of such Division Court shall be to us. Our Heirs and Successors in Our or Their Privy Council, as hereinafter provided." ( 7. ) Undisputedly, the Madhya Pradesh Uchcha Nyayalaya {Letters Patent Appeals Samapti} Adhiniyam, 1981 provided abolition of appeal from judgment or order of one Judge of the High Court made in exercise of original or appellate jurisdiction. A Division Bench of this Court held the Act to be ultra vires as the Act was taken to be beyond the jurisdiction of the State Legislature. Undisputedly, the order passed by the Division Bench has been set aside by the Apex Court and the provisions of the Madhya Pradesh Uchcha Nyayalaya {Letters Patent Appeals Samapti} Adhiniyam, 1981 are held valid and the appeals which were pending on the date of the judgment came to be dismissed but thereafter the State Government brought Act No. 14 of 2006 into force. The said Act has received the assent of the President on 28th March, 2006 and the Act came into force on the date it was published in the Official Gazette. Section 2 of the Act reads as under.- "2. Appeal to the Division Bench of the High Court from a judgment or or of one Judge of the High Court made in exercise of original jurisdiction. Section 2 of the Act reads as under.- "2. Appeal to the Division Bench of the High Court from a judgment or or of one Judge of the High Court made in exercise of original jurisdiction. {1} An appeal shall lie from a Judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench Comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. {2} An appeal under Sub-section {1} shall be filed within 45 days from the date of order passed by a Single Judge: Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period. Explanation- The fact that the petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. {3 } An appeal under Sub-section {1} shall be filed, heard and decided in accordance with the procedure as may be prescribed by the High Court." ( 8. ) A fair reading and understanding of Section 2 would clarify that according to the intention of the legislature, an appeal shall lie from a judgment or an order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India. The proviso appended to Sub-section {1} of Section 2 clearly provides that no such appeal shall he against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Such an appeal is required to be filed within 45 days and if the appeal is not filed within 45 days then the High Court under particular circumstances shall have powers to condone the delay in filing the appeal. Section 4 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 repealed the Madhya Pradesh Uchcha Nyayalaya {Letters Patent Appeals Samapti} Adhiniyam, 1981. ( 9. ) Section 2 and its sweep had been a subject of controversy in number of cases. Section 4 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 repealed the Madhya Pradesh Uchcha Nyayalaya {Letters Patent Appeals Samapti} Adhiniyam, 1981. ( 9. ) Section 2 and its sweep had been a subject of controversy in number of cases. A Full Bench of this Court has held that if an interlocutory order has the tenets of being final in nature and it affects the rights of the parties permanently or the parties are left at an irretrievable position then an order can be challenged in an appeal. However, none of the judgments of this High Court say that when a learned Single Judge has exercised his jurisdiction under the provisions of Contempt of Courts Act, an appeal shall be maintainable under Section 2 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005. ( 10. ) Section 2 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 clearly provides that an appeal shall lie from a judgment or an order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India. Section 2 of the Adhiniyam, 2005 does nowhere provide that if an order passed under some proceedings other than writ proceedings can be treated to be an order under Article 226 of the Constitution of India then also an appeal would be maintainable. ( 11. ) The key words in Section 2 are "in exercise of original jurisdiction under Article 226 of the Constitution of India". If a learned Single Judge issues some direction in a civil matter or in a criminal matter, which even otherwise he could have issued under Article 226 of the Constitution of India then such a direction cannot be challenged before a Division Bench. The basic question is whether the Judge is exercising the jurisdiction under Article 226 of the Constitution of India or any other jurisdiction. ( 12. ) Undisputedly, the learned Single Judge was not exercising his jurisdiction under Article 226 of the Constitution of India but was exercising his contempt jurisdiction. The basic question is whether the Judge is exercising the jurisdiction under Article 226 of the Constitution of India or any other jurisdiction. ( 12. ) Undisputedly, the learned Single Judge was not exercising his jurisdiction under Article 226 of the Constitution of India but was exercising his contempt jurisdiction. Assuming for a minute that the order passed by the learned Single Judge is beyond his jurisdiction and the same can be set aside by an Appellate Court then the appeal must be filed before a proper forum because an infra court appeal, which is a statutory appeal, would not be maintainable against such directions or illegal exercise of the jurisdiction. ( 13. ) In the matter of J.S.Parihar {supra}, a three Judges Bench of the Supreme Court was considering the question relating to Rajasthan High Court Ordinance Section 18, which was in relation to powers of the Division Bench. There also while exercising the contempt jurisdiction, a learned Single Judge had issued certain directions and the order came to be challenged before the Division Bench. The Supreme Court held that an appeal under Section 19 was not maintainable because there was no order punishing the respondent for violation of the order of the High Court. Their Lordships thereafter made following observations in paragraph 5 of the judgment.- "5.The question then is: whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It i contended by Mr. S.K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the- Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2{b} of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently, promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently, promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising then judicial review in contempt proceedings. afresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge, then Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against then judgment of the learned Single Judge when the matter was already seized of the Division Bench." ( 14. ) The question before the Supreme Court was that whether the Division Bench was right in setting aside the directions issued by the learned Single Judge to redraw the seniority list. ) The question before the Supreme Court was that whether the Division Bench was right in setting aside the directions issued by the learned Single Judge to redraw the seniority list. The Supreme Court observed that what was not permissible under Section 12 of the Contempt of Courts Act, if was directed to be done then it would be assumed that the learned Single Judge had exercised such powers, which did not vest in him and, therefore, the Division Bench could exercise the powers under Section 18 of the Rajasthan High Court Ordinance as the judgment or order of the Single Bench was under challenge before the Division Bench and the Division Bench had jurisdiction to correct the wrong. There again the judgment of the Supreme Court was based upon interpretation of Clause 18 of the Rajasthan High Court Ordinance. ( 15. ) In the matter of Midnapore Peoples Cooperative Bank Limited {supra}, after considering the entire law on the subject, the Supreme Court in paragraph 11 of the judgment observed as under:- "11.The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus: {1} 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 19n of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. {Ill} 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 the CC Act. {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 the 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." ( 16. ) Learned senior counsel for the appellant has placed his reliance on Sub-note IV and Sub-note V contained in paragraph 11. In Sub-note IV, the Supreme Court had simply observed that 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 the Contempt of Courts Act. The Supreme Court while carving out an exception observed that 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. ( 17. ) In our opinion, Sub-note IV would apply to a case where while issuing a final direction in exercise of jurisdiction to punish for contempt, the High Court also issues certain directions. In such a case in an appeal under Section 19 of the Contempt of Courts Act, not only the punishment awarded to the alleged contemnors can be challenged but even the correctness, validity and propriety of the directions can also be challenged. ( 18. In such a case in an appeal under Section 19 of the Contempt of Courts Act, not only the punishment awarded to the alleged contemnors can be challenged but even the correctness, validity and propriety of the directions can also be challenged. ( 18. ) Sub-note V of paragraph 11 of the judgment in Midnapore Peoples Cooperative Bank Limited {supra} clearly observes that 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. According to the Apex Court, 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. ( 19. ) It is to be seen that the Supreme Court has not issued blanket direction that whenever any order is made in exercise of the contempt jurisdiction then such an order can be challenged before the higher forum in an intra-court appeal. The Supreme Court has observed that in a case where the High Court decides an issue or makes any direction, relating to the merits of the dispute between the parties, in contempt proceedings, the aggrieved person can challenge the order in an intra-court appeal. Such an appeal can be filed if the order is passed by a learned Single Judge and there is a provision for an intra-court appeal. The word and is not disjunctive, it cannot be read as or. Instead of word and, if the word or was used in the provision then certainly the argument of Shri V.S. Shroti, learned senior counsel for the appellant could have carried some weight because we could read the direction of the Supreme Court that if the order is passed by a learned Single Judge, an intra-court appeal would be maintainable irrespective of the provisions contained in any law for the time being in force. The requirement is not only that the order impugned must be passed by a learned Single Judge but the requirement also is that there must also be a provision for an intra-court appeal against such an order. ( 20. The requirement is not only that the order impugned must be passed by a learned Single Judge but the requirement also is that there must also be a provision for an intra-court appeal against such an order. ( 20. ) We will again refer back to Section 2 of the Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 and would again observe that under Section 2, an appeal shall lie from a judgment or an order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India. The requirement is that the order must be passed by a learned Single Judge of the High Court; it must have been passed in exercise of the original jurisdiction and lastly it should be an order under Article 226 of the Constitution of India. ( 21. ) In the present matter, undisputedly, the order was passed by the learned Single Judge but it was not passed in exercise of the jurisdiction under Article 226 of the Constitution of India. A perusal of the order would make it clear that the learned Single Judge was clear in his mind that the earlier observations made by the learned Judge while disposing of the writ petition were to be understood in a particular form. While disposing of the writ petition, if the learned Single Judge made certain observations, issued certain directions and such directions were not wholeheartedly followed or complied with and ultimately a contempt proceedings came before the Court then even in such jurisdiction, the learned Single Judge could explain that what was really meant by the order. It would altogether be a different thing that the alleged contemnors may come before the competent Court and say that the interpretation made by the learned Single Judge is wrong or bad but the forum to challenge such observations or directions would be different not a Division Bench in an intra-court appeal under the Adhiniyam. ( 22. It would altogether be a different thing that the alleged contemnors may come before the competent Court and say that the interpretation made by the learned Single Judge is wrong or bad but the forum to challenge such observations or directions would be different not a Division Bench in an intra-court appeal under the Adhiniyam. ( 22. ) If the interpretation put forth by the learned senior counsel for the appellant is accepted then that would create a situation of impossibility because every order issued by a Court, any direction issued by a learned Single Judge, can always be challenged before the Division Bench on the ground that some additional directions have been issued even in a criminal matter, therefore, an intra-court appeal would -be maintainable. ( 23. ) For example, we take case of a petition under Section 482 of the Code of Criminal Procedure, where the High Court issues a direction to the subordinate Tribunal, Authority, Investigating Agency, Police or the State to do a particular thing. If the parties are aggrieved then taking advantage of the interpretation put forth by the learned senior counsel for the appellant contrary to the intention expressed by the legislature, a writ appeal would be maintainable. In our opinion, such is not the intention of the legislature. ( 24. ) A right of appeal cannot be claimed in air, it has to be statutory. It is a right conferred upon an aggrieved party under some statute or by the Letters Patent. The provisions contained the repealed provisions of Clause 10 in fact were wider in nature as they provided that any person aggrieved by the judgment or order passed by the learned Single Judge in its first appellate jurisdiction or in its original jurisdiction could file an appeal. The Letters Patent if provided extra and larger avenue then the provisions contained in the Letters Patent cannot be read in Madhya Pradesh Uchcha Nyayalaya {Khand Nyaypeeth Ko Appeal} Adhiniyam, 2005 because the statute clearly puts a bar and ban against filing of an appeal against any order except an order passed by a learned Single Judge in exercise of original jurisdiction under Article 226 of the Constitution of India. ( 25. ) Taking into consideration the totality of the circumstances, without entering into the merits of the matter, we hold that the appeal is not maintainable. It is accordingly dismissed. Appeal dismissed.