IN THE HIGH COURT OF KERALA AT ERNAKULAM
Con.APP(C).No. 4 of 2008(S)
1. PAUL, S/O.THEKKETHALA LOUIS,
... Petitioner
Vs
1. BHARATHAN, S/O.ACHUTHAN PILLAI,
... Respondent
2. MUNICIPAL COUNCIL, IRINJALAKUDA
For Petitioner :SRI.K.G.BALASUBRAMANIAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :24/10/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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Cont. Appeal (Civil) No. 4 of 2008
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Dated, this the 24th day of October, 2008
JUDGMENT
H.L.Dattu, C.J.
This contempt appeal is filed against the orders passed by
the learned Single Judge in Contempt Case (Civil) No.1153/2007 dated
18.7.2008. Obviously, this appeal is filed under Section 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 Vs. Chunilal Nanda
and Others { (2006) 5 SCC 399} and also the decision of this Court in
the case of Rasheed Vs. Saji Basheer { 2005 (2) KLT 106. 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:
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I. 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
19. In special circumstances, they may be open to
challenge under Article 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 Section
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 Section 19 can also encompass the
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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 Article 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 month’s 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
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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. While
disposing of the contempt case and discharging the
contemnor if the 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 W.P.(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 respondent’s building, which, according to the petitioner
was causing dangers to the petitioner’s 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 Section 411 of the Municipalities Act and to
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demolish that portion of the second respondent’s building which is
causing dangers to the petitioner’s 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 W.P.( C) No.14933/2006 dated 2nd August, 2006, and
R.P.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 2nd 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
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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. Section 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
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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. 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 Section 19 of the Contempt of Courts Act. This position is
explained by a Bench of this Court in the case of Jaya Joy Vs.
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
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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 Section 19 of the Contempt
of courts Act. An appeal as per the provisions
contained in Section 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
Section 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 3 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
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be rejected and it is rejected.
12. I.A.No.609/2008 is closed.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
MS