Research › Search › Judgment

Calcutta High Court · body

2023 DIGILAW 837 (CAL)

Sailesh Kumar v. Smitha R. IAS

2023-05-18

HARISH TANDON, RABINDRANATH SAMANTA, SHAMPA SARKAR

body2023
JUDGMENT : (Harish Tandon , J.) 1. Because of the conflicting decisions operating in the field pertaining to the filing of the contempt application before the Single Bench after the order of the Single Bench is affirmed by the Division Bench, alleging the violation thereof, the following reference has been made for answer by the Special Bench :- (a) Will the doctrine of merger be applied to confer an exclusive jurisdiction on a Division Bench to entertain contempt application where the order of the Single Bench is either upheld in toto and/or the appeal against an order of the Single Bench is dismissed simplicitor ? (b) Is the jurisdiction of the Division Bench and a Single Bench in such cases co-extensive insofar as the contempt applications are concerned? 2. The referral was made on a contempt application filed before the Single Bench alleging the violation of an order dated 14th July, 2022 passed in WPA 863 of 2022. The said order was carried in appeal and the Division Bench of this Court affirmed the said order on 18th January, 2023 in MA 16 of 2022. Alleging the violation of the order dated 14th July, 2022 passed by the Single Bench, a contempt application was filed before the Single Bench and a point was taken that in view of the Supreme Court judgment rendered in Kunhayammed & Ors. vs. State of Kerala & Anr., reported in (2000)6 SCC 359 and Khoday Distilleries Ltd. & Ors. vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. Kollegal, reported in (2019) 4 SCC 376 . The doctrine of merger was made applicable and therefore, the order of the Single Bench merged with the order of the Division Bench and lost its existence in the eye of law. The Single Bench further noticed the earlier Single Bench decision in case of Tetulia Coke Plant (P) Ltd. & Ors. vs. P. S. Bhattacharya, reported in 2012 (3) CLJ (CAL) 185 and unreported order dated 23rd September, 2021 passed in CPAN 389 of 2021 (Imperium Energy Utility Services LLP vs. Prem Sagar Mishra & Ors.) and order dated 26th July, 2022 in CPAN 9 of 2020 (Baratang Forest Worker’s Union & Anr. vs. Tarun Coomer) taking a different view. vs. P. S. Bhattacharya, reported in 2012 (3) CLJ (CAL) 185 and unreported order dated 23rd September, 2021 passed in CPAN 389 of 2021 (Imperium Energy Utility Services LLP vs. Prem Sagar Mishra & Ors.) and order dated 26th July, 2022 in CPAN 9 of 2020 (Baratang Forest Worker’s Union & Anr. vs. Tarun Coomer) taking a different view. A subsequent decision of the Supreme Court in case of Dineshan K.K. vs. R.K. Singh & Anr., reported in (2014) 16 SCC 88 was further noticed by the referral Judge wherein the Supreme Court even upholding the applicability of doctrine of merger held that the proper forum to entertain the contempt applications would be the Judge in the High Court who passed the initial order. 3. Such being the foundation of the reference because of the conflicting decisions taken by the different judges, this Bench is constituted to answer those references. 4. The answer to the first reference does not require any elaborate discussion as the same has been settled by the Supreme Court in various judgments which we would consider hereinafter. The doctrine of merger though universally recognized under the common law principles but does not find place either in the constitutional provision or in the statute. The said doctrine received judicial recognition on a salutary principle to uphold the hierarchy in the judicial system established under the Constitution so as to achieve singularity in adjudication with an object to avoid more than one decisions to operate in the field. It is intended to blend and/or infuse the judgment of the inferior Court into the judgment of the higher forum depending largely upon the scope, power and the nature of the jurisdiction exercised by the higher forum. It is a verdict of the last forum as envisaged in the hierarchy of the Court system being the last word on the subject cause to eradicate any sense of ambiguity and/or discrepancies in the findings recorded by the inferior Court. It is intended to give primacy to a last word spoken in the judgment of the highest Court or the superior Court exercising jurisdiction in this regard. 5. It is intended to give primacy to a last word spoken in the judgment of the highest Court or the superior Court exercising jurisdiction in this regard. 5. Even though the doctrine of merger found birth in a judicial system as a common law doctrine, yet after the adoption of the Constitution of India, such doctrine has been recognized consistently till date and the adoptability of such acceptance of the doctrine can be seen from the Supreme Court judgment rendered in the case of CIT vs. Amritlal Bhogilal & Co., reported in AIR 1958 SC 868 wherein the Apex Court held that there is no ambiguity in holding that the moment the appeal is provided against an order passed by the Tribunal, the decision of the appellate authority is the operative decision in law and in the event, the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that the appellate decision is effective and can be enforced. It was further held that even in case of affirmation of an order of the inferior Court or the authority, by the appellate forum, it would invite the same consequences that it is a decision of the appellate authority which is final in the following words: “There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement;” 6. However, in a subsequent decision rendered in case of State of Madras vs. Madurai Mills Co. Ltd., reported in AIR 1967 SC 681 , the Apex Court held that the concept of doctrine of merger is not a doctrine of rigidity nor of universal application. However, in a subsequent decision rendered in case of State of Madras vs. Madurai Mills Co. Ltd., reported in AIR 1967 SC 681 , the Apex Court held that the concept of doctrine of merger is not a doctrine of rigidity nor of universal application. It is held that such doctrine has to be understood in the perspective of the nature, scope and the jurisdiction of the appellate Court in relation to the statutory provisions applicable in this regard. In a subsequent decision rendered in Gojer Bros. (P) Ltd. vs. Ratan Lal Singh, reported in AIR 1974 SC 1380 , the Apex Court succinctly observed that the doctrine of merger would apply on principle in all the three conceivable eventualities where the order of the inferior Court is modified, reversed and/or confirmed by the superior authority. 7. The view expressed in the above noted decision is laudable to the extent that in all the aforesaid three eventualities, the order of the inferior Court get replaced with the order of the higher authority and it is the last decision which exists as the decisions of the inferior authority merged with the order of the superior authority. Even a Seven-Judge Bench in case of S. S. Rathore vs. State of M. P., reported in AIR 1990 SC 10 accepted the doctrine of merger and its applicability in judicial parlance and ruled out any distinction to be drawn between the Courts and the Tribunals. It is held that the moment the statutory remedy is provided against an order and such remedy having availed, the period of limitation for filing a suit would not commence from the date of passing the order by the inferior Court but from a date when the higher authority disposed of the statutory appeal. 8. It is manifest from the views expressed by the different Benches of the Supreme Court that the doctrine of merger may not be applied with rigidity nor can be regarded as the concept of universal application but dependent upon the nature of the jurisdiction exercised by the appellate forum in the orders passed therein. Obviously, the laudable principles sublime the applicability of the doctrine of merger is to ensure singularity in the decision and eschew the existence of more than one order or decision governing the field on the subject dispute. Obviously, the laudable principles sublime the applicability of the doctrine of merger is to ensure singularity in the decision and eschew the existence of more than one order or decision governing the field on the subject dispute. Any order or decision passed by a Court of first instance, if amenable to be challenged before the higher forum, the decision of the higher forum shall be the effective and binding decision even in case of a variation, vacation, modification and/or affirmation of the order challenged therein. The scope and the jurisdiction of the appellate forum is one of the determinant factor to apply the doctrine of merger and therefore, it is an ardent duty of the Court to consider whether the order of the inferior Court merged with the order of the superior Court so that the order of the superior Court is the effective and the final decision on the subject dispute. 9. Such being the views expressed by the Apex Court in the above noted decisions a point arose before the three-Judge Bench of the Supreme Court in Kunhayammed & Ors. vs. State of Kerala & Anr., reported in (2000) 6 SCC 359 as to whether an order dismissing an application seeking special leave to appeal under Article 136 of the Constitution of India invites the applicability of a doctrine of merger so that the order of the High Court gets infused into an order dismissing the special leave petition. The Apex Court after analyzing the different eventualities ultimately held: “44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.” 10. The distinction appears to have been drawn in the above report that in the event, the special leave to appeal under Article 136 of the Constitution is dismissed refusing to grant special leave to appeal either by speaking or non-speaking order, it does not attract the doctrine of merger as the Supreme Court refuses to exercise the appellate jurisdiction. The Apex Court further held that even having held so that the speaking order refusing to special leave to appeal does not invite the merger of the order of the High Court yet it attracts two implications firstly, the law declared by the Supreme Court in the order would be binding on the Courts under Article 141 of the Constitution or there may be another situation that it does not declare such law and simplicitor dismisses the special leave to appeal petition. In both the situations, neither the doctrine of merger nor the rule of res judicata would apply in a subsequent proceeding between the parties. The position would have been different where the leave to appeal has been granted and the Apex Court invoked the jurisdiction of the Appellate Court either in affirming, modifying and/or reversing the order of the High Court. 11. On a point, whether a review application can be taken out against an order of the High Court after dismissal of the special leave petition, there appears to be a confusion in this regard, in view of the another three-Bench decision rendered prior to Kunhayammed & Ors. 11. On a point, whether a review application can be taken out against an order of the High Court after dismissal of the special leave petition, there appears to be a confusion in this regard, in view of the another three-Bench decision rendered prior to Kunhayammed & Ors. (supra) in Abbai Maligai Partnership Firm vs. K. Santhakumaran, reported in (1998) 7 SCC 386 . The subsequent three-Judge Bench in Khoday Distilleries Ltd. & Ors. vs. Sri. Mahadeshwara Sahakara Sakkare Karkhane Ltd. Kollegal, reported in (2019) 4 SCC 376 held that there is no apparent conflict between the aforesaid decisions in the following: “24. Having noted the aforesaid two judgments and particularly the fact that the earlier judgment in Abbai Maligai Partnership Firm is duly taken cognizance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on swell-accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant.” 12. Ultimately, it is held that the law laid down in Kunhayammed & Ors. (supra) being exhaustive and elaborative on the principles of applicability of the doctrine of merger to be followed as it does not make any decision whether the review petition was filed before the filing of the special leave petition or after the dismissal of the special leave petition and in both the situations the observation made in Paragraph 37 in Kunhayammed is the correct repository of law. 13. The law emerged from the aforesaid decision of the Supreme Court leaves no ambiguity in ones mind that even the doctrine of merger is not to be applied rigidly nor universarily yet it has received recognition in a judicial parlance and therefore has to be applied with care and circumspection, more particularly, on the power and jurisdiction of the appellate forum provided under the statute. The doctrine of merger has to be understood in the perspective of its genre imbibing a concept that it intended to achieve an object to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Something which stands on a lesser pedestal has to subsume into greater, so as to extinct the lesser even if the greater is not enhanced and/or increased. It is in fact, the loss of identity of the lesser having blended into greater and it is a greater which remains operative and effective. The salutary principle for applicability of the doctrine of merger is not only to achieve singular decision to operate but to eradicate any conflicting findings recorded in the order passed by the inferior Court with that of the superior Court. 14. The answer to the first reference can also be traced from a subsequent Division Bench judgment of the Supreme Court in Dineshan K.K. (supra) wherein it is succinctly observed: “9. We have carefully perused the decision of this Court. A reading of the judgment would certainly indicate that when the civil appeals and the special leave petitions are dismissed with reasons, the orders passed by the courts below would merge with the judgment and order passed by this Court. The said decision has been followed by this Court in a catena of subsequent judgments of this Court. 10. In view of what has been said by this Court in the aforesaid decision, we cannot hold that the judgment and order passed by the High Court has not merged with the judgment and order passed by this Court when the civil appeal filed by the petitioner complainant was dismissed.” 15. Taking clue from somewhat settled proposition of law on applicability of doctrine of merger, a piquant situation having arisen as depicted in the first point of reference wherein contempt application is taken out before the Single Bench after the order or decision of the Single Bench was affirmed by the Division Bench in intra-court appeal. Taking clue from somewhat settled proposition of law on applicability of doctrine of merger, a piquant situation having arisen as depicted in the first point of reference wherein contempt application is taken out before the Single Bench after the order or decision of the Single Bench was affirmed by the Division Bench in intra-court appeal. It is sought to be contended that an application for contempt alleging the violation of the order of the Single Bench having affirmed in the intra-court appeal filed before the Division Bench is entertainable and/or maintainable by the Single Bench as the order of the Single Bench gets infused and/or merged with the order of the Division Bench and lost its identity and/or existence. 16. The reference to the aforesaid point was made because of a perceived conflict amongst the Co-ordinate Bench decision rendered by this Court on the above point and therefore, we feel that it would be prudent to consider the aforesaid decisions. The Single Bench of this Court in Tetulia Coke Plant (supra) was confronted with the question as to whether the contempt application filed before it alleging violation of its order despite affirmation thereof by the Division Bench could be maintained. Admittedly, the order for which allegation is made as to its violation was affirmed by the Division Bench by dismissing the appeal; the Single Bench noticed the judgment of Kunhayammed & Ors. (supra) and held that the moment the judgment of the Single Bench merged with the judgment of the Division Bench, it is a judgment of the Division Bench which is in existence and operative and therefore the contempt application can only be filed before the Division Bench in the following: “19. The decision of Kunhayammed (supra) does not help the petitioner company in view of applicability of the settled principles of law laid down by the Hon’ble Supreme Court in the above decision taking into consideration the facts and circumstances of this case as discussed hereinabove. Though the decision of K.K.R. Nair (supra) has its persuasive value before this court but upon consideration of the same I find that the above judgment was delivered taking a contrary view of the settled principles of law laid down by the Hon’ble Supreme Court as also that this High Court. Though the decision of K.K.R. Nair (supra) has its persuasive value before this court but upon consideration of the same I find that the above judgment was delivered taking a contrary view of the settled principles of law laid down by the Hon’ble Supreme Court as also that this High Court. In view of the settled principles of law as discussed hereinabove, the principle, that the observations or directions originally issued by the learned Single Judge constitute the basis for willful disobedience from willful breach for initiation of the proceeding for contempt or the learned single judge could take cognizance of the proceeding for contempt even after conformation of those directions by a Division Bench in an appeal after consideration on merit, cannot be considered as the law of the land in view of the settled principles of law as decided by the Hon’ble Supreme Court in the decision of Kunhayammed (supra) amongst other decisions.” 17. Subsequently, another Single Bench in CPAN 389 of 2021 relied upon a judgment of the Co-ordinate Bench as mentioned above and held that the contempt application is not maintainable before the Single Bench. The same view is expressed by the Single Bench in case of Baratang Forest Worker’s Union & Anr. (supra) while dealing with an application for contempt upon noticing the judgment of the Supreme Court rendered in Khoday Distilleries (supra) that the contempt application would lie before the Division Bench as the order of the Single Bench merged with the order of the Division Bench. A Division Bench of this Court in Hotel Seashell & Anr. Vs. Karuna Jaydhar (CPAN 15 of 2022) accepted the proposition that the contempt would lie before the Division Bench as the order of the Single Bench merged with the order of the Division Bench and directed the contempt application to be listed before the judges who comprise the Division Bench while passing the said order; complaint whereof is made to his alleged violation. 18. The aforesaid decision rendered by the Single Bench appears to have universally accepted the principles of merger and held that the contempt application would lie before the Division Bench, the moment the appeal filed against an order of the Single Bench is disposed of and/or dismissed. 18. The aforesaid decision rendered by the Single Bench appears to have universally accepted the principles of merger and held that the contempt application would lie before the Division Bench, the moment the appeal filed against an order of the Single Bench is disposed of and/or dismissed. However, in Dineshan K. K. (supra) the Apex Court was considering two questions firstly, whether the contempt petition is maintainable before the Supreme Court after the dismissal of an appeal assailing the order of the High court and secondly, whether the person alleging the violation of the order by the other side could approach the High Court which disposed of the writ petition and issued certain directions to the alleged contemnors for grant of prayer sought before the Supreme Court in the application for contempt. Even after affirming the consistent view taken by the Apex Court in the earlier decisions as discussed hereinabove that the doctrine of merger would apply in the event the appeal is dismissed, affirming the order of the inferior Court but did not accept the proposition that the contempt would lie before the Supreme Court as the appeal was dismissed being unmeritorious in the following: “14. We are mindful of settled law that the orders passed by the High Court would merge with the order passed by this Court. This Court has dismissed the appeal only and, therefore, it is the directions passed by the High Court which in fact have been allegedly disobeyed by the respondent contemnors. In our considered view, it would be in the interest of justice and to lessen the burden of this Court in the current scenario, it would be appropriate to request the High Court to look into the grievance of the complainant, if a petition is filed before them inter alia bringing to their notice and knowledge that their orders and directions have been disobeyed. In our opinion, firstly, this exercise would be beneficial to the parties because they were before the High court in the writ petition wherein the directions were issued, and secondly, by entertaining the petitions of this nature wherein this Court has passed an order of dismissal simpliciter and the alleged contempt arises out of the order passed by the High Court, this Court would saddle the dockets with cases which could otherwise be effectively disposed of by the courts below. 15. 15. in view of the aforesaid aspects of the matter, in our considered opinion, though we hold that when the judgment and order passed by the High Court has merged with the order passed by this Court while disposing of the civil appeal, we direct the petitioner complainant to file an appropriate contempt petition before the High Court for the alleged disobedience of the orders and directions issued by the High Court within two months’ time from today. If such a contempt petition is filed, the High Court would consider the same in accordance with law after giving an appropriate opportunity of hearing to all the parties concerned.” 19. The observations made in Paragraph 12 of the said report if read conjointly with Paragraphs 14 and 15 thereof raises a question as to whether the observations made in the later Paragraphs could be said to be a law declared by the Supreme Court and binding upon the all Courts in the country under Article 141 of the Constitution of India. It appears to us that in Paragraph 12, the Apex Court recorded the submission of the learned Senior Counsels appearing as amicus curiae that there is no fetter on the part of the Court to exercise the powers bestowed under Articles 129, 136 and 142 of the Constitution of India in directing the complainant to approach the High Court in order to bring to their notice and to acknowledge that their directions have been disobeyed by the alleged contemnors. In the perspective of the same, the observations came to be recorded in Paragraph 14 and 15 thereof do not appear to us that such directions have been passed in exercise of power under Article 141 of the Constitution of India. The opening sentence in Paragraph 14 of the said judgment is indicative of the fact that the Apex Court was quite alive and conscious of the settled law that the order passed by the High Court would merge with the order of the Supreme Court. In the event, the appeal is registered which was ultimately dismissed yet it proceeded to observe that it is an order of the High Court which would be construed to have been allegedly disobeyed and therefore, it would be proper for the litigant to approach the High Court to look into the grievance so raised. In the event, the appeal is registered which was ultimately dismissed yet it proceeded to observe that it is an order of the High Court which would be construed to have been allegedly disobeyed and therefore, it would be proper for the litigant to approach the High Court to look into the grievance so raised. The Supreme Court enjoins an extra-ordinary and exceptional power under Article 142 of the Constitution of India to be exercised ex debito justitiae. It admits no ambiguity that such exercise of powers cannot be construed as law declared by the Supreme Court under Article 141 of the Constitution of India to remain binding on all the Courts including the High Court. However, ambiguity is sought to be created on the submission of the amicus curiae reproduced under Paragraph 12 of the said judgment and in such backdrop, it is contended that the ultimate directions contained in Paragraph 14 and 15 are the fall out of the said observations. We are conscious of the somewhat settled proposition of law that the Court cannot create a jurisdiction upon a Court which lacks inherent jurisdiction. The jurisdiction is traced from the statutory provisions and cannot be created by a judicial order. There is a real distinction between the lack of jurisdiction and lack of inherent jurisdiction; in former, parties can waive the objection but in later case it is inflexible, invoiable and does not depend upon the stand of the parties. It has been a consistent view of the Supreme Court that the doctrine of merger is not a rule of rigidity nor have a universal application in all conceivable situations. The applicability of merger has to be understood and applied on the statutory provisions conferring a jurisdiction upon a Court to accept and initiate a proceeding and its determination and adjudication is dependent upon the powers of the jurisdiction conferred therein. 20. The Rules of the High Court at Calcutta relating to an application under Article 226 of the Constitution of India which has a statutory force contained the exhaustive provision relating to an appeal from the original order passed by the Single Judge either in Original Side or in Appellate Side by presenting a memorandum of appeal drawn up in accordance with the respective provision of the Original Side Rules and the Appellate Side Rules. The right of appeal can be traced from Clause 15 of the Letters Patent which ordain an appeal before the Division Bench of the Court against an order passed by one Judge of the said High Court. Such power of appeal bestowed upon the Division Bench under Clause 15 of the Letters Patent against an order of the Single Bench exercising the original jurisdiction is distinct from the appellate or the revisional jurisdiction to vary, modify, reverse and/or affirm the order under appeal and by applying the doctrine of merger the order of the Division Bench is an effective order. In such situation, the order of the Single Bench merged or subsumed into the order of the Division Bench even in case of affirmation by the Division Bench. We do not find any inconsistency in this regard that the power of the Division Bench under Clause 15 of the Letters Patent is such that the order of the Single Bench swallowed in and/or blended with the order of the Division Bench. The aforesaid observation is necessitated on the principle of law enunciated by the Apex Court in the judgments referred hereinabove that in order to attract the doctrine of merger the powers and jurisdiction of the appellate forum is one of the factors to be taken into account. 21. However, the legislatures were conscious that in the event, the doctrine of merger is applied with rigidity and receives recognition as universal application, the observation of the Supreme Court in Dineshan K.K. (supra) is apt that the Division Bench of the Supreme Court would be flooded with the slew of litigations concerning the violation of the order. In this regard, the provisions contained under Civil Procedure Code throws light thereupon as the legislatures were conscious that the decree passed by the First Court in the hierarchy of the Court system merged with the order of the Appellate Court, High Court or if the matter traveled to the Supreme Court and appeal is decided on merit yet introduced, Section 37 thereof defining the expression “Court which passed the decree” be deemed to include even a decree passed by the Appellate Jurisdiction in the following: “37. Definition of Court which passed a decree.- The expression ‘Court which passed a decree’, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,- (a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. Explanation. – The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court, but, in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.” 22. The Calcutta High Court Contempt of Courts Rules, 1975 was promulgated in exercise of power conferred under Section 23 of the Contempt of Courts Act, 1971 and Article 215 of the Constitution of India to regulate the procedures of contempt of courts matter may be seen in this regard. The said Rules having a statutory backing have to be understood and applied and no departure can be presumed therefrom. Rule 15 of the Contempt Rules postulates that all petitions with regard to the civil contempt grounded on the wilful disobedience to the judgment, decree, the directions, order or other process of Court or wilful breach of an undertaking given to the Court shall be heard by the Judge or Judges who passed the judgment or a decree or gave the directions or the orders or issued the writ or other process or before whom the undertaking was given. The statutory provision has to be understood on the basis of the intention purposes and object it sought to achieve and segregation and/or compartmentalization has to be eschewed. The statutory provision has to be understood on the basis of the intention purposes and object it sought to achieve and segregation and/or compartmentalization has to be eschewed. The provisions contained in Rule 15 cannot be dissected nor segregated in the event of an undertaking, the contempt would lie to the Judge before whom the undertaking is given from rest of the express eventualities provided therein. It is explicit from Rule 15 of the Contempt Rules that the contempt would lie before a Judge or Judges who passed the judgment or decree and not before the Appellate Court which confirms the decree. The position would have been different when the judgment, decree, directions or orders passed by the Single Bench is modified and/or reversed by the Division Bench exercising the appellate jurisdiction and in such event, the contempt may lie before the same Judges constituting the Division Bench as there is no express provision in the said contempt rules that of Section 37 of the Code of Civil Procedure. Any other interpretation to the provision contained under Rule 15 of the Contempt Rules would not only burden the Division Bench of the High Court with slew of the contempt applications but also have the ramification on docket explosion. Although the doctrine of merger is not a rigid rule but certainly depends upon the statutory provisions applicable in relation to the maintainability of the contempt application before a forum. The contempt jurisdiction is not only exercised to punish the person having found guilty of wilful and deliberate violation of the order/direction of the Court but can further be exercised in due implementation and/or execution of the said order. It stands to reason that the statutory provision contained in the Rules is strictly applicable and therefore, the answer to the references is as follows: (i) In case of an affirmation of an order of Single Bench passed in exercise of the original jurisdiction either in Original Side or the Appellate Side, the contempt would lie before the Single Bench alleging the violation of the directions of orders passed by him. (ii) In case of reversal, modification and setting aside the order of the Single Bench in an appeal under Clause 15 of the Letters Patent by the Division Bench, the contempt application would lie before the Judges constituting a Division Bench who passed the order. (ii) In case of reversal, modification and setting aside the order of the Single Bench in an appeal under Clause 15 of the Letters Patent by the Division Bench, the contempt application would lie before the Judges constituting a Division Bench who passed the order. (iii) In the event, an undertaking is given by the party to the proceeding before the Single Judge to do or not to do a certain thing and challenge to an order could not yield in reversal and/or modification of the original order is recorded the contempt would lie to a Judge before whom such undertaking was given. 23. Let the contempt application be listed before the respective Bench in view of the answers to the reference given hereinabove for final disposal. 24. Urgent Photostat certified copies of this judgment, if applied for, be made available to the parties subject to compliance with requisite formalities. I agree, (Shampa Sarkar, J.) I agree, (Rabindranath Samanta, J.)