IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 98 of 2009 Sri Ghanshyam Singh Jainer …….Appellant Versus Sri N. Ravishankar & others …Respondents. Ms. Neetu Singh, Advocate for the appellant. Mr. P.C. Bisht, Advocate for the respondents. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. This special appeal has been filed under Rule 5 of Chapter VIII read with Rule 10 of Chapter IX of the Rules of the Court, 1952. The appellant has filed the special appeal challenging the order of the learned Single Judge dated 9.3.2009 passed in Civil Contempt Petition No. 387 of 2005 (Ghanshyam Singh Jainer Vs. Sri N. Ravishankar & others). Before this special appeal is heard on its merit, the appellant must satisfy this Court as to the maintainability of the present special appeal, inasmuch as the special appeal has been filed challenging the order of the learned Single Judge dated 9.3.2009 which has been passed in a contempt jurisdiction whereby the learned Single Judge has rejected the contempt petition on grounds that no civil contempt made out, as the orders of the High Court have been complied with. In other words, the learned Single Judge has refused to exercise his jurisdiction given to him under the Contempt of Courts Act read with Article 215 of the Constitution of India. 2 The Contempt of Courts Act, 1971 provides for a statutory appeal under Section 19 of the Act, which reads as follows :- “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 applicant 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.” An appeal therefore lies before a Division Bench against the order or decision of a learned Single Judge and before the Apex Court against the order or decision of the Division Bench. All the same, these appeals only lie 3 in a case where the courts have exercised their jurisdiction given to them under the Contempt of Courts Act, not otherwise. In other words, in a given case, where the court has refused to exercise its jurisdiction or, in other words, has come to the conclusion that no contempt is made out and the contempt petition itself is dismissed, no appeal is maintainable against such order. An appeal is only maintainable if a court while exercising its jurisdiction under Contempt of Courts Act imposes a punishment on the alleged contemnor. The seminal decision on this point is D.N. Taneja Vs. Bhajan Lal (1988) 3 SCC 26. The Apex Court in the aforesaid case was also ceased with a matter which had come up before it under Section 19 (1) of the Contempt of Courts Act, which was directed against the judgment and order of the Punjab and Haryana High Court dismissing the application for contempt filed by the appellant Shri Bhajan Lal, the then Chief Minister of Haryana. The Punjab & Haryana High Court after considering the contempt application and the pleadings therein was of the view that under the circumstances, it was not a fit case for the Court to exercise its jurisdiction of the contempt court and the contempt petition was dismissed. The applicant thereafter filed an appeal before the Apex Court where a preliminary objection was raised on the maintainability of the appeal itself under Section 19 of the Contempt of Courts Act. The preliminary objections were accepted by the Apex Court for the reasons that the right of appeal is only available under Section 19 of the Contempt of Courts Act against a decision or an order of the High Court which has been passed in exercise of its jurisdiction for punishment of its contempt. According to the Apex Court, the High Court primarily derives its 4 powers and jurisdiction to punish for a contempt under Article 215 of the Constitution of India. Therefore, an appeal will only lie under Section 19 (1) of the Contempt of Courts Act where the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. In other words, an appeal under Section 19 (1) would only lie when the High Court exercises its jurisdiction or powers, as conferred on it by Article 215 of the Constitution of India, while imposing a punishment in contempt. Conversely therefore when a High Court refuses to impose any punishment on the alleged contemnor or dismisses the contempt petition, the High Court has not exercised its jurisdiction or power to punish for contempt. “The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.”(1998) 3 SCC, supra). The Apex Court while elaborating on this aspect stated as under :- “15……Article 215 confers jurisdiction or power on the High Court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt. It is true that in considering a question whether the alleged contemnor is guilty of contempt or not, the court hears the parties an considers the material produced before it and, if necessary, examines witnesses and, thereafter, passes an order either acquitting or punishing him for contempt. When the High Court acquits the contemnor, the High Court does not exercise its jurisdiction for contempt, for such exercise will mean that the High Court should act in a particular manner, that is to say, by imposing punishment for contempt. So long as no punishment is imposed by the High Court, the High Court cannot be said to be exercising its jurisdiction or power to punish for contempt under Article 215 of the Constitution. 5 We have exactly a similar situation before us. A learned Single Judge of this Court has refused to exercise his jurisdiction in a contempt petition. An appeal under Section 19 of the Contempt of Courts Act is therefore not maintainable. Learned counsel for the appellant then argued that this is in fact not an appeal under Section 19 (1) of the Contempt of Courts Act, 1971, before this Court, but a special appeal under Rule 5 of Chapter VIII read with Rule 10 of Chapter IX of the Rules of Court. Therefore, even if no appeal is maintainable under Section 19 (1) of the Contempt of Courts Act, under the facts and circumstances of the case, a special appeal is maintainable under Rule 5 of Chapter VIII read with Rule 10 of Chapter IX of the Rules of the Court. This argument of the appellant is also misconceived for the following reasons :- Firstly, the Contempt of Courts Act is a special Act which provides only in a given contingency, a provision for an appeal. This being the case, in a contempt matter an appeal before a Division Bench of this Court can only lie under Section 19 (1) of the Act. Since under Section 19 (1) of the Act an appeal is not maintainable, as already referred above and reasons assigned, it cannot be maintainable under the Rules of the Court. Secondly, it may be possible that in certain cases prior to coming of the Contempt of Courts, 1971 special appeals, or the later patent appeals, as they were known earlier, may have been entertained. This was because earlier under the Contempt of Courts Act, 1952 there was no provision for statutory appeal even against the order imposing punishment. Therefore, a special appeal was 6 the only remedy. This lacuna in the Contempt of Courts Act itself has since been removed in the present Contempt of Courts Act, 1971. Hence a provision being there under the Statute the provision for special appeal under the Rules of Court would not be attracted. Thirdly, a special appeal can only be filed by a person who is aggrieved. The appellant is not a person aggrieved. By the impugned order, the Court has refused to exercise its jurisdiction for punishing a person. In case of non-exercising of its jurisdiction, as already been referred above, no prejudice has been caused to the appellant and, therefore, he is also not a party aggrieved. Learned counsel for the appellant Ms. Neetu Singh has given a photo copy of the judgment rendered by the Apex Court in Director of Education, Uttaranchal & Ors. Vs. Ved Prakash Joshi & Ors. in Appeal (civil) 3713 of 2005 and the relevant portion of the judgment relied upon by the learned counsel reads as under :- “While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take the view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari and Anr. V. Union of India and Ors. (2001 (10) SCC 496). The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the 7 order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non- compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.” From a perusal of the said judgment it appears that in the aforesaid case the Apex Court had set aside the judgment of the High Court passed in contempt petition, in which the High Court has exceeded its jurisdiction under the Contempt of Courts Act. The facts of the present case are not of this nature. In the present case, the learned Single Judge has simply refused to exercise his jurisdiction under the Contempt of Courts Act or under Article 215 of the Constitution of India. Therefore, we fail to understand as to how the case cited by the appellant is applicable in the present appeal. The situation would have been different if in a contempt jurisdiction direction would have been given by the Court exceeding his jurisdiction, then against such an order a special appeal could be filed, as it has been laid down by the Apex Court in V.M. Manohar Prasad Vs. N. Ratnam Raju and another (2004) 13 SCC 610. All the same, this is not the case here. The appeal, therefore, has absolutely no merit and is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 9.3.2010 Avneet