Shambhunath Mishra … v. 1. The State of Jharkhand 2. Sri Ram Lakhan Rana, proprietor of M/s. India
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cont. Case (Civil) No. 975 of 2019 --- Shambhunath Mishra … … Petitioner Versus 1. The State of Jharkhand 2. Sri Ram Lakhan Rana, proprietor of M/s. India Alloys, Bokaro 3. The Secretary, Bokaro Industrial Area Development Authority, BIADA Bhawan, Bokaro …. … Opp. Parties CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner For the Opp. Party No. 1 : Mr. Gaurav Raj, A.C. to A.A.G.-II For the Opp. Party No. 2 : Mr. Sanjeev Thakur, Advocate For the Opp. Party No. 3 : Mrs. Richa Sanchita, Advocate : Mrs. Ritu Kumar, Advocate Mrs. Pinky Shaw, Advocate Order No. 21 Dated: 01.03.2024 The present contempt petition has been filed alleging wilful violation of the order dated 23.02.2018 passed in F.A. (First Appeal) No. 38 of 2014. 2.
Legal Reasoning
Now, it is well settled that the power to issue contempt is a special and rare power available both under the Constitution of India as well as the Contempt of Courts Act, 1971 and the same has to be exercised with greatest care and caution. The weapon of contempt cannot be used for execution of the decree or implementation of an order for which alternative remedy in law has been provided. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, no party has right to insist the court to exercise jurisdiction under Contempt of Court Act, 1971 as contempt is between a contemner and the court. 16. In the case of Babu Ram Gupta Vs. Sudhir Bhasin & Another reported in (1980) 3 SCC 47, the Hon’ble Supreme Court has held as under: - “10. These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would cooperate with the receiver or that he would hand over 6 possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non- compliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he 7 plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the Court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus there being no undertaking at all the question of breach of such undertaking does not arise.” 17. In the aforesaid judgment, it has been expressly held that contempt petition is not maintainable for compliance of any undertaking given by the parties and remedy for the same is to file execution of the said compromise decree. It has further been held that if non-compliance of a compromise decree or consent order is held as contempt of court, then no person will resort to the remedy provided under the Code of Civil Procedure relating to execution of decrees. If by non-compliance of any of the terms of the consent order or a compromise decree, the fraud, if any, is practised by the concerned person, the offence is committed not on the court, rather on one of the parties. Unless there is an express undertaking given in writing before the Court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. 8 18. In the present case also, no undertaking has been given by any of the parties before the court, rather the order dated 23.02.2018 passed in F.A. No. 38 of 2014 is a compromise decree based on the agreement arrived at between the parties and as such non-compliance of such undertaking cannot be said to be contempt of court so as to invoke the jurisdiction of the Act, 1971, rather the same is executable by the competent executing court established under the Code of Civil Procedure. 19. In view of the above discussion, this Court is of the considered view that the present contempt petition is not maintainable and the same is accordingly dismissed. 20. The petitioner is, however, at liberty to approach the competent executing court for execution of the order 23.02.2018 passed in F.A. No. 38 of 2014. Ritesh/AFR (Rajesh Shankar, J.)
Arguments
Learned counsel for the petitioner submits that F.A. No. 38 of 2014 was preferred by the appellant/opposite party no. 2 before this Court against the judgment and decree dated 23.12.2013 passed by the Civil Judge, Senior Division-IV, Bokaro in Money Suit No. 09/2005. The said First Appeal was disposed of vide order dated 23.02.2018 in terms of compromise arrived at between the parties. As per the terms of settlement, the appellant/opposite party no. 2 had to pay the entire agreed amount of Rs.8,50,000/- (Eight Lakhs Fifty Thousand) within 30 days to the petitioner, failing which the opposite party no. 2 had to pay the said settled amount along with the interest @ 10% P.A. in diminishing method, however the entire amount was to 2 be paid within 36 months after expiry of the first 30 days. 3. It is further submitted that the opposite party no. 2 has not paid a single penny to the petitioner till date which is clear violation of order dated 23.02.2018 passed in F.A No. 38 of 2014. 4. Learned counsel for the opposite party no. 2, at the outset, raises question of maintainability of the present contempt petition by submitting that the petitioner has chosen a wrong forum by filing the present contempt application, rather he should have filed Execution Case for implementation of the order passed in F.A No. 38 of 2014. 5. Heard learned counsel for the parties and perused the materials available on record. 6. The primary question falls for consideration before this Court is as to whether the present contempt petition filed alleging wilful violation of the order dated 23.02.2018 passed in F.A. No. 38 of 2014 in terms of the compromise arrived at between the petitioner and the opposite party no. 2, is maintainable? 7. Article 215 of the Constitution of India enumerates that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. 8. As per Section 2(b) of the Contempt of Courts Act, 1971 (in short, ‘the Act, 1971”), “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given 3 to a Court. Section 11 of the said Act provides that a High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits. Section 23 of the Act, 1971 provides that the Supreme Court or, as the case may be, any High Court may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure. 9. Thus, the High Court can take suitable action against the contemnor for violation of any order passed by the said court in exercise of its jurisdiction. 10. The Hon’ble Supreme Court in the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation and Others Vs. M. George Ravishekaran & Others reported in (2014) 3 SCC 373, has held that the power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty upon the Courts to exercise the same with the greatest care and caution. 11. In the case of R.N. Dey & Others Vs. Bhagyabati Pramanik & Others reported in (2000) 4 SCC 400, the 4 Hon’ble Supreme Court has held that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court. 12. The aforesaid judgment has also been followed in the case of Hukum Chand Deswal Vs. Satish Raj Deswal reported in (2021) 13 SCC 166. 13. In the case of Indian Oil Corporation Limited & Others Vs. Sheo Shankar Mishra reported in 1995 SCC OnLine Pat 358, learned Division Bench of Patna High Court has held as under:- “12. The execution proceeding as well as contempt proceeding both are independent proceedings and they operate in two different fields or spheres. So far as the execution proceeding is concerned, that is filed by a party against the other party to the litigation for enforcement of the rights and liabilities created under the decree or the order. The contempt proceedings are proceedings to uphold the prestige and the dignity of the court and majesty of law. It has nothing to do with the execution of the decree or order passed in a litigation. One proceeding cannot be termed as a substitute for the other. The contempt proceeding cannot be used as a weapon against the judgment debtor to force him to comply with the decree or order. The contempt proceeding can be initiated only when the materials on record show wilful disobedience of the order. Raising valid objection in the execution proceeding regarding executability of the decree under the provisions of the Code of Civil Procedure or under any law, or taking other recourse of similar type permissible in law in an 5 execution proceeding, cannot be turned as a wilful disobedience and a proceeding for contempt cannot be initiated on that ground.” 14. In the case of Kanwar Singh Saini Vs. High Court of Delhi reported in (2012) 4 SCC 307, the Hon’ble Supreme Court has held that when the matter relates to the infringement of a decree or decretal order, it is not expedient to invoke and exercise contempt jurisdiction as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. 15.