1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION L.P.A. NO.295 OF 2007 IN CONTEMPT PETITION NO.105 OF 2006 The Bombay Diocesan Trust Association Pvt.Ltd. .. Appellant a company registered under the provisions of the Companies Act, 1913 and deemed to be registered under the provisions of the Bombay Public Trust Act, 1950, having its registered office at 19, Hazarimal Somani Marg, Fort, Mumbai-400 001 through its Hon. Secretary Rev. P.B. Amolik versus 1. The Pastorate Committee of the Saint Andrews Church having its office at 3, Meghraj Sethi Marg, Opp. Jhula Maidan, Agripada, Mumbai-400 011. And 1. Michael Makasare of Mumbai, Indian Inhabitant residing at BIT Blocks No.11, 2nd Floor, Room No.55, Agripada, Mumbai- 400 011. 2. Richard Barde of Mumbai, Indian Inhabitant residing at BIT Blocks, Block No.6, Room No.36, 1st Floor, Agripada, Mumbai-400 011. 2 3. Danny Barde of Mumbai, Indian Inhabitant residing at BIT Blocks, Block No.6, 1st Floor, Agripada, Mumbai-400 011. 4. Sandeep Gaikwad of Mumbai, Indian Inhabitant residing at Central Railway Hospital Quarters, MSRB-II, Bldg No.291/7, Off Victoria Garden, Byculla, Mumbai-400027. 5. Reuben Makasre of Mumbai, Indian Inhabitant residing at BIT Blocks No.11, 2nd Floor, Room No.55, Agripada, Mumbai-400 011. 6. Lalita Vanjare of Mumbai, Indian Inhabitant residing at BIT Block No.8, 2nd Floor, Agripada, Mumbai-400 011. 7. Ashok Manvar of Mumbai, Indian Inhabitant residing at 19, Hazarimal Somani Marg, BDTA Pvt.Ltd. Compound, Fort, Mumbai-400 001. 8. Pravin Bhosale of Mumbai, Indian Inhabitant residing at Tolak Nagar, Building No.28, Near Sarabhai Cinema, Chembur, Mumbai. 9. Kantish Ahir of Mumbai, Indian Inhabitant residing at Dhun Castle Bldg., 3rd floor, Clare Road, Mumbai-400 008. 10.Vijay Patel of Mumbai, Indian Inhabitant, residing at Police Quarters, 3rd floor, Byculla, Mumbai. 3 11. Michael Barde of Mumbai, Indian Inhabitant residing at BIT Block No.8, 2nd floor, Agripada, Mumbai-400 011. 12. Ravikant Gaikwad of Mumbai, Indian Inhabitant residing at BIT Blocks No.6,2nd Floor, Agripada, Mumbai-400 011. Mr. V.A. Thorat, senior advocate i/by M/s. Shah Legal for the appellant. Mr. Suresh Gole i/by M/s. Gole & Co. for the respondent Nos.1,2,6,8 and 11. Mr. Jaiprakash Sawant for the respondent Nos.7 and 12. CORAM : SWATANTER KUMAR, C.J. & V.M. KANADE, J. Date of reserving the order : 11 th June, 2008 Date of pronouncing the order : 19 th June, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) Pertinent and important question of law arises for consideration of the court in this appeal. The contention on behalf of the appellant is that despite the language of section 19 of the Contempt of Courts Act, 1971, hereinafter referred to as `the Act', an appeal shall lie against an order passed by the learned Single Judge 4 discharging the contempt notice or declining to punish the contemnor in accordance with the provisions of clause 15 of the Letters Patent. 2. Before we proceed to examine the legal niceties of the submissions and the judgments on the subject, it will be appropriate to notice the necessary facts giving rise to the present appeal. 3. The Bombay Diocesan Trust Association Private Limited, a company incorporated under the provisions of the Companies Act, 1956 and the public trust duly registered under the Bombay Public Trust Act, 1950, claiming to be the owner of the properties situated at Saint Andrew High School, Meghraj Sethi Marg, Agripada, Mumbai, filed a suit being Suit No. 2672 of 2001 against the Pastorate Committee of the Saint Andrew Church and others for injunction and other reliefs. An application for interim injunction was also filed in the suit. They prayed that the defendants in the suit be restrained from entering into and holding any functions or meetings in the hall of Saint Andrew High School and from creating any nuisance of whatsoever nature in the said hall on the Ground Floor and also be restrained 5 from obstructing the petitioner and other authorities of Saint Andrew High School for conducting the school activities in the said hall. Vide order dated 5th February, 2003, the learned Judge of the City Civil Court, Mumbai granted ad-interim injunction against which an appeal was preferred by the defendants in the suit and the learned Single Judge of this court vide order dated 2nd May, 2003 disposed of the appeal. According to the plaintiffs, they were again prevented from using the Welfare Centre Room for conducting classes and threats were given to the members. Another suit being C.S. Suit No.2034 of 2005 was filed in the City Civil Court of Mumbai on 28th April, 2005. The learned trial Judge again passed an interim order in terms of prayer in the notice of motion granting injunction and the court also directed the defendants-respondents to remove their locks put up on the Welfare Centre. By further order dated 6th June, 2005, the learned trial Judge directed the respondent to remove locks on the two rooms and the toilet. These directions were challenged in appeal. This appeal being Appeal No.685 of 2005 was disposed of by this court vide order date 26th July, 2005 which reads as under: “1. Heard the learned counsel for the respective parties. Perused the affidavit-in-reply. 6 2. By the impugned order dated 28.4.2005 passed in Suit No.2034 of 2005 the ad-interim injunction has been ordered while granting leave under Order 1 Rule 8 of CPC. Keeping in mind the relationship admitted between the plaintiff and the defendant no.1 it would be expedient that this appeal is disposed off by directing the pending notice of motion to be heard expeditiously and in the mean while protecting the interest of both the parties so as to serve the community at large. The hall located on the ground floor of the newly constructed welfare centre is sought to be used for running the school and the school hours are between 7 a.m. To 6 p.m. The school does not run its classes on Saturdays and Sundays on which days the Defendant No.1 Committee may hold some community functions but not weddings or wedding receptions. Such functions like naming ceremonies, birthday parties (without any alcoholic drinks being served) and other religious functions may be held. 3. The appeal is, therefore, disposed off by the following directions: (a) The pending notice of motion be heard and decided on its own merits as expeditiously as possible and preferably by 31st October 2005. (b) The defendants shall not in any way disturb the functioning of the school between 7 a.m. To 6 p.m. On all the school days. (c) The plaintiff shall not object to holding the community functions as stated herein above on Saturdays and Sundays or any other holidays and the consideration received for such functions shall 7 be accounted by the party concerned by issuing an official receipt. (d) In case the hall and the welfare centre and the adjacent two rooms have been locked by any of the parties, the same shall be opened forthwith and none of the parties shall resort to such method, except that the concerned management will lock the premises during night. (e) The plaintiff as well as the defendants will be bound by the above directions during the pendency of the notice of motion. 4. The pleadings be completed by the next date.” 4. This order became final between parties and was in force. Alleging violation of it, the plaintiff-petitioner filed Contempt Petition No.105 of 2006 in which it was averred that the contemnor- respondent had intentionally, deliberately and repeatedly violated the order of the court, causing serious prejudice to the petitioner and prayed that they be punished in accordance with law for committing contempt of the Court. Alongwith it, the petitioner filed Civil Application No.178 of 2006 praying for initiating suo-motu action against the contemnors for the alleged aggravated contempt. Notice was issued to the contemnor Nos.1 to 12 (Respondents) in main 8 contempt petition on 14th March, 2006. 5. During the course of hearing of the contempt petition, the learned Single Judge passed the following order on 3rd August, 2006: “2. During the course of hearing, as I indicated my mind, Mr. Gole on instructions of the respondents-contemnor, who are present in Court, states that the respondents-contemnors are willing to abide by the directions given in the order dated 26th July 2005 in A.O. No.685 of 2005, in its letter and spirit. As this assurance is given on behalf of respondents-contemnors to this Court, in my opinion, the appropriate course is to defer hearing of the petition for some time to observe the conduct of the respondents-contemnors. It is made clear that even if one complaint regarding breach of any of the conditions is reported and is established before this Court, the Court will proceed to initiate action for aggravated contempt by issuing suo-motu notice in that behalf. Accordingly, hearing of the petition is deferred till 3rd week of February 2007. Assurance given by the respondents-contemnors in the Court is accepted. Counsel for the respondents also assures this court to take immediate steps to remove articles lying in the two rooms adjacent to the Welfare Centre and these articles will be shifted to the Peons Room which is within the Church premises. Mr. Thorat for the petitioner submits that the articles can be disposed of and if required, can be stored in the church itself. It is not possible to accept this submission unless there is enough material to hold that articles are not valuable articles and can be stored at any place. The order passed on the earlier occasion is kept in abeyance till the next date of hearing.” 9 6. In C.A. No.178 of 2006, the petitioner alleged that respondent/contemnors had committed breach of order dated 3rd August, 2006 and it has become a case of aggravated breach. In C.A. No.178 of 2006, a show cause notice was issued on 20th February, 2007 by observing that the respondents had committed aggravated contempt of court. 7. The learned Single Judge vide his oral judgment dated 25th June, 2007 discharged the notices in Contempt Petition No.105 of 2006 as well as C.A. No.178 of 2006. The concluding paragraphs of the judgment are as follows: “14. It will be necessary to refer to the order dated 26th July 2005 passed by this Court. It must be borne in mind that in clause (d) of paragraph 2 of the said order, it is stated thus: “(d) In case the hall and the welfare centre and the adjacent two rooms have been locked by any of the parties, the same shall be opened forthwith and none of the parties shall resort to such method except that the concerned management will lock the premises during night.” 10 The said order indicates that if the hall and the welfare centre and the adjacent two rooms have been locked by any of the parties, the same shall be opened forthwith and none of the parties shall resort to such method. There are no specific averments made both in the contempt petition and the civil application attributing a particular role to the 12 persons named as contemnors. The Petitioner themselves are not sure as to which of the contemnors have allowed wedding functions and receptions to be held at the welfare centre. Considering the nature of proceedings under the Contempt of Court Act, 1971 on the basis of such averments it is not possible to take action against the concerned Respondents under the Contempt of Court Act, 1971. It must be borne in mind that the order dated 26th July 2005 has been passed in an Appeal arising out of the order dated 28th April 2005 passed by the trial Court which is only an ad- interim order pending final disposal of a Notice of Motion for interim relief. Thus the breach alleged is of an ad-interim order. It must be noted here that it is an unfortunate dispute between two religions bodies namely the Bombay Diocesan Trust Association and the Pastorate Committee of St. Andrews Church. The contemnors are associated with the Respondent-Pastorate Committee. 15. Taking an overall view of the matter this is not a fit case where action under the Contempt of Court Act can be taken. Hence the following order is passed: (i)Notice issued in contempt petition No.105 of 2006 is discharged. 11 (ii)Notice issued in Civil Application No.178 of 2006 stands discharged. (iii) It is made clear that no adjudication is made by this Court as regards the rights of the parties and the observations and findings which are recorded in this order are only for the limited purpose of considering the question whether it is necessary to initiate action against the contemnors under the Contempt of Court Act, 1971. (iv) All contentions of the parties in the pending suit are expressly kept open.” Against this order the petitioners have preferred L.P.A. No.295 of 2007. 8. At the outset, an objection was raised to the very maintainability of the present Letters Patent Appeal. It was argued that in face of the provisions of section 19 of the Act, the appeal does not lie against an order passed by the learned Single Judge where the notice of contempt is discharged. It was also contended that Contempt of Courts Act being a special Act only relating to contempt matters and being a self-contained Code, it shall prevail over other laws and, therefore, since the court lacks the jurisdiction to entertain the appeal itself, there was no need for going into the merits of the 12 case. The learned counsel appearing for the appellant while arguing that despite the provisions of section 19 of the Act and upon a correct interpretation of clause 15 of the Letters Patent, the order being a judgment, an appeal would lie to the Letters Patent Bench of this court against the order passed by the learned Single Judge. While referring to certain judgments, it is also contended that the order being in exercise of original jurisdiction, normal recourse to the Appellate Court jurisdiction would also be available under the provisions of the Civil Procedure Code and, thus, the appeal should be heard on merits. We may also notice here that despite these rival contentions raised in regard to maintainability of the present appeal, arguments on merits of the contempt petition or correctness of the impugned order were not addressed by the learned counsel appearing for the parties. 9. The main contention on behalf of the appellant is that present appeal would be maintainable under clause 15 of the Letters Patent and the language of section 19 does not, in any way, debar the maintainability of the present appeal against the order discharging the 13 contempt notice. In order to substantiate this plea, reliance has been placed on the judgments of the Supreme Court which we shall now proceed to discuss. 10. While relying upon the case of Vinita M. Khanolkar v. Pragna M. Pai and others, 1998(1) SCC 500, it is argued that provision of appeal in clause 15 of the Letters Patent, which is a charter under which the High Court of Bombay functions, is not whittled down by the statutory provisions of section 6(3) of the Specific Relief Act. In that case, the Supreme Court stated that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions could not get excluded unless the statutory enactment concerned expressly excludes appeals under under letters patent. It was also noticed that no such bar is discernible from language of section 6(3) of the Specific Relief Act holding that appeal under clause 15 would lie to the Letters Patent Bench. It needs to be noticed that in this case, the Supreme Court was primarily concerned with the provisions of the Specific Relief Act 14 which in comparison to the Contempt of Courts act is a statute of general impact. Furthermore, the provisions of section 6(3) contemplates that no appeal shall lie from any order or decree passed in any suit instituted under that section nor shall any review of such order or decree be allowed. It was on the language of the section that the Supreme Court was of the view that jurisdiction of the court under section 15 of the Letters Patent was not ousted and the appeal was consequently, restored to the file of the High Court. 11. Similarly, in the case of State of West Bengal and others v. Kartick Chandra Das and others, (1996) 5 SCC 342, the Supreme Court again emphasised the principle that in absence of specific exclusion, the provisions of sections 4 to 24 and section 5 of the Limitation Act were applicable to the appeals filed under clause 15 including those under the Contempt of Courts Act. In that case, it was not an issue whether an appeal would lie to the Division Bench or not as recorded in para 4 of the judgment that maintainability of the appeal was not disputed. It is also useful to notice that in that case, the appeal had been preferred against issuance of contempt notice by 15 the Division Bench. The Supreme Court held that the Appellate Side procedure of the Calcutta High Court was applicable. 12. Lastly, reliance was also placed on the judgment of the Supreme Court in the case of P.S. Sathapan (Dead) by Lrs. v. Andhra Bank Ltd. and others, (2004) 11 SCC 672. In that case, the Court was primarily concerned with bar under section 104(2) of the Civil Procedure Code and clause 15 of Letters Patent of Madras High Court. The Apex Court again affirmed the principle of harmonious construction of section 104 which leads to the conclusion that Section 104(1) saves Letters Patent Appeal and bar of section 104(2) of the Civil Procedure Code does not apply. The only conclusion that can be arrived at is that unless there is specific exclusion by expression mention in the section then alone, the appeal would not lie. It will be appropriate to notice paragraphs 21 and 22 of this judgment on which the learned counsel placed heavy reliance. “21. We are of the opinion that in reaching this conclusion the Court missed the relevant portion of clause 15 of the Letters Patent of the Bombay High Court. Reliance cannot, therefore, 16 be placed on this judgment for the proposition that under clause 15 of the Letters Patent of the Bombay High Court no appeal to a Division Bench from the order of the Single Judge in exercise of appellate jurisdiction is maintainable. 22. Thus the unanimous view of all courts till 1996 was that Section 104(1) CPC specifically saved letters patent appeals and the bar under Section 104(2) did not apply to letters patent appeals. The view has been that a letters patent appeal cannot be ousted by implication but the right of an appeal under the Letters Patent can be taken away by an express provision in an appropriate legislation. The express provision need not refer to or use the words “letters patent” but if on a reading of the provision it is clear that all further appeals are barred then even a letters patent appeal would be barred.” 13. These judgments referred by appellant are different on facts and the judicial dictum does not have a direct bearing to the matters in issue before us in the present appeal. In fact, in the case of Kartick Chandra Das (supra), it was specifically conceded that appeals against notice of contempt lies and there was no determination on the question of maintainability of appeal even with reference to the provisions of Limitation Act. Moreover, these were primarily determination of lis between the parties in regard to certain personal reliefs and were not the cases of discharge of power within special 17 jurisdiction as to contempt. 14. As is evident from the discussion of the judgments relied upon by the appellant, right of Letters Patent Appeal can be taken away by an express provision in an appropriate Legislation. It is not necessary that the section should expressly use the word “Letters Patent” but if on plain reading of the provision, it is clear that all further appeals are barred then even a Letters Patent Appeal would be barred. The judgments cited by appellant do not have any direct bearing on issue in hand. In the controversy before us in as much as the provisions of the Specific Relief Act, section 104 of the CPC and the Limitation Act are not pari materia to the provisions of section 19 of the Contempt of Courts Act. Section 19 of the Act 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 18 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 the 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 intents 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. 15. The language of section 19 where gives a statutory right to 19 a party to maintain an appeal, there it restricts such right by using specific language in regard to punishing a person for contempt. The expression used is “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”. Thus, the statute itself provides the class of cases in which an appeal shall lie. Once a special legislation restricts the right of appeal by specific language, it obviously excludes what is not specifically included. The intention of the Legislature is certainly not to permit or grant statutory right of appeal unless the order passed was for grant of punishment for contempt. The section is self- contained provision and even provides that the appeal shall lie to two Judges bench of the High Court where the decision is of a Single Judge of that court and to the Supreme Court where the order is by a Bench of the High Court. The complete mechanism of right to appeal and forum to which the appeal would lie has been spelt out by the Legislature and, thus, there is no reason for the court to expand its scope to hold that appeal would lie by adding that even the order of discharge shall be included in the expression `punish for contempt'. 20 16. The expression, `punishment' is a well known legal expression and is incapable of being vaguely interpreted. Punishment means a sanction such as fine, penalty and confinement which is assessed against a person who has violated the law ( Black's Dictionary). Thus, the person who is punished alone has a right of appeal under section 19 of the Act. 17. Under Chapter 34 of the Bombay High Court, Appellate Side Rules, 1960, the rules to regulate proceedings for contempt under Article 215 of the Constitution of India and