Bombay Diocesan Trust Association V. Pastorate Committee of Saint Andrews Church

[BOMBAY HIGH COURT]

Bombay Diocesan Trust Association Private Limited, Through Its Hon. Secretary Rev. P.B. Amolik, Mumbai
v
(1) Pastorate Committee of Saint Andrews Church, Mumbai; (2) Michael Makasare; (3) Richard Barde; (4) Danny Barde; (5) Sandeep Gaikwad; (6) Reuben Makasre; (7) Lalita Vanjare; (8) Ashok Manvar; (9) Pravin Bhosale; (10) Kantish Ahir; (11) Vijay Patel; (12) Michael Barde; (13) Ravikant Gaikwad

Swantater Kumar

19 Jun 2008
BENCH
Swantater Kumar & V. M. KANADE

CASES REFERRED TO
Co-op. Bank Limited and Others v Chunilal Nanda and Others 2006 SC 254
P.S. Sathappan (Dead) By Lrs v Andhra Bank Limited and Others 2004 SC 857
Central Mine Planning and Design Institute Limited v Union of India and Another 2001 SC 20326
Vinita M. Khanolkar v Pragna M. Pai and Others 1997 SC 1726
Kartick Chandra Das and Others v State of W. B. 1996 SC 2875
Shah Babulal Khimji v Jayaben D. Kania and Another 1981 SC 379
Gurdit Singh and Others v State of Punjab and Others 1974 SC 151
Baradakanta Mishra v Mr. JustiCustoms Excise Gold Appellate Tribunalikrushna Mishra 1974 SC 109
Shri Radhey Shyam v Shyam Behari Singh 1970 SC 479
Messrs Tarapore and Company, Madras v Messrs V/O. Tractors Export, Moscow and Another 1968 SC 471
Nachiappa Chettiar and others v. Subramaniam Chettiar 1959 SC 258
Hanskumar Kishanchand v Union of India (and connected appeal) 1958 SC 145
Vasant Vishnu Vartak by heirs Lilabai and others v. Padmakar Vishnu Vartak [1983 MhLJ 996]
Collector of Bombay v. Issac Penhas [1948 AIR(Bom) 103]

ACTS REFERRED
Courts Act, 1971[s. 19]
Bombay Public Trust Act, 1950
Companies Act, 1956
Code of Civil Procedure, 1908[O. 1 r. 8, s. 2(9), O. 43 r. 1, s. 104(2), s. 104(1)]
Specific Relief Act, 1963[s. 6(3)]
Limitation Act, 1963[s. 4, s. 5, s. 6, s. 7, s. 8, s. 9, s. 10, s. 11, s. 12, s. 13, s. 14, s. 15, s. 16, s. 17, s. 18, s. 19, s. 20, s. 21, s. 22, s. 24]
Constitution Of India, 1950[art. 215, art. 136, art. 133(1)]
Government of India Act[s. 107, s. 108]
Industrial Disputes Act, 1947[s. 17B]

RULES REFERRED
Bombay High Court, Appellate Side Rules, 1960
CASE NO
L.P.A. No.295 of 2007 In Contempt Petition No.105 of 2006

LAWYERS
V.A. Thorat, M/s. Shah Legal, Suresh Gole, M/s. Gole &Co., Jaiprakash Sawant
.JUDGMENT TEXT
The Judgment was delivered by : HON'BLE JUSTICE SWATANTER KUMAR (CJ)

1. 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 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 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.

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 Code Of Civil Procedure, 1908. 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 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 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." *

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."

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.

(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 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 Code Of Civil Procedure, 1908 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 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, 1997 SC 1726, 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, 1963. 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, 1963 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, 1963 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 SC 2875, 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, 1963 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 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 SC 857. In that case, the Court was primarily concerned with bar under section 104(2) of the Code Of Civil Procedure, 1908 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 Code Of Civil Procedure, 1908 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, 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) Code Of Civil Procedure, 1908 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, 1963. 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 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, 1963, section 104 of the Code Of Civil Procedure, 1908 and the Limitation Act, 1963 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 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 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'. #

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, 1950 and Contempt of Courts Act, 1971 have been framed. They deal with various aspects including the procedure to be adopted by the courts while dealing with the contempt petitions but no rule is framed in regard to filing of appeals. In other words, there are no rules which will have a bearing on maintainability of an appeal before the Division Bench of this court against an order of declining action for contempt. In other words, section 19 is the only provision which regulates this aspect. As far as clause 15 of the Letters Patent of the High Court of Bombay is concerned, it requires that an appeal shall lie to the High Court of Judicature At Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction etc. Clause 15 reads thus-

"15. Appeal to the High Court from Judges of the Court.¬ And We do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal : but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided." *

18. The appeals are filed against a decree or an order which is determination of a lis in accordance with law. The appeal would lie against such order or decree with the exception that such order or decree was not made in exercise of appellate jurisdiction. A decree as even contemplated under the provisions of Code Of Civil Procedure, 1908 would be a finding on matters in issue between the parties and would decide such issues. Thus, the matter referred would be the one which decide the rights of the parties and in fact, is a substantial determination of rights of the parties to the lis before the Court of competent jurisdiction. As against this, a matter of contempt is primarily a matter between the Court and the contemnor and is not determination of any lis pending before the court on which parties are litigating. An order of discharge in a contempt, thus, would not be a judgment and order within the meaning of clause 15 of Letters Patent and an appeal against such an order is excluded under the language of section 19 of the Contempt of Courts Act which unambiguously states that only orders of punishment for contempt are appealable.

19. As far as this court is concerned, as back as in Narendrabhai Sarabhai Hatheesing and others v. Chinubhai Manibhai Seth, 1936 AIR(Bom) 314, the Division Bench took the view that order of court for breach of undertaking to court is not a judgment. An Order of the court refusing to commit a person for breach of an undertaking given to the court and embodied in the order of the Court cannot be said to be a judgment within the meaning of Clause 15, as it does not affect the merits of any question between the parties and hence is not appealable. The Bench also noticed a judgment of Full Bench of Calcutta High Court in Mohendra Lall Mitter v. Anundo Coomar Mitter, (1897) 25 Cal. 236 (F.B.) and declined to accept the view firstly as it was not binding and specifically for the reason that decision of the Calcutta High Court was in absence of any reason for the conclusion arrived at and ultimately rejected the contention that an order refusing the application to commit a person for contempt was appealable. The same principle was approved and distinguished by the Full Bench of this court in the case of Collector of Bombay v. Issac Penhas, 1948 AIR(Bom) 103, where the court held as under:

"17. On the preliminary point as to whether an appeal lies, there has been a long and continuous controversy in the different High Courts as to the true meaning to be given to the expression "judgment" in Cl. 15 of the Letters Patent. I should have thought that, apart from authority, an order of committal for contempt was a judgment within that definition. The order undoubtedly constitutes final adjudication. It affects the merits of the case and it also determines the right and liability of the appellant. Let us therefore consider whether there is anything in the reported decisions which are contrary to the view I am suggesting. The definition given by Sir Richard Couch, Chief Justice, in the two Calcutta decisions is considered to be a locus classicus as far as the definition of the expression "judgment" is concerned in Cl. 15, Letters Patent. The first of these decisions is reported in 8 Beng. L.R. 433. That was a case where an order was made directing the issue of a writ of mandamus to the Justices of the Peace for Calcutta to compel them to refer to arbitration question of compensation, and the question arose whether an appeal lay from that order, and Sir Richard Couch said in his judgment (p. 452):

"We think that 'judgment' in Cl.15 means a decision which affects the merits of the question between the parties by determining some right or liability."

18. In the subsequent decision reported in 13 Beng. L.R. 91 the interpretation was slightly extended and the learned Chief Justice said (page 101):

A judgment "is not a mere formal order, or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have." *

In that case the learned Chief Justice was considering an order refusing to set aside an order granting leave to sue to the plaintiff under Cl.12, Letters Patent.

19. The Madras High Court has always given a more liberal interpretation to the expression "judgment", and the leading case is the one reported in 35 Mad 1, where we have the judgment of Sir Arnold White, and the opinion of that learned Chief Justice as to the true meaning of the expression "judgment" is (p.7):

"If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause." *

20. This High Court has always preferred to follow the Calcutta High Court rather than the Madras High Court: or, in other words, it has undoubtedly given a more restricted meaning to the expression "judgment" than the Madras High Court has done- see the observations of Sir Basil Scott C.J. In 11 BomLR 241.

....................................

23. Then we come to the decision which has created some difficulty, and that is the decision reported in 38 BomLR 571. The order with which the Divisional Bench of Sir John Beaumount C.J., and Rangnekar J. was concerned was refusing to commit a person for breach of an undertaking given to a Court, and the Court held that no appeal lay from such an order. It is difficult to see how such an order could possibly be a 'judgment' within the meaning of Cl. 15, Letters Patent and give the right of appeal to a person who had moved the Court for contempt and had failed to get an order for committal. It is impossible to say that any right or liability of the appellant was determined by the order of committal. The appellant had no right to get such an order from the Court. It was the discretion of the Court, and the Court having refused to exercise its discretion, the appellant could not say that any right of his was affected or any liability imposed upon him. Therefore on the facts of the case that decision is clearly distinguishable from the facts before us where the appellant has been ordered to pay a fine and has been held to be guilty of contempt. It cannot be disputed that in this case the appellant's rights are undoubtedly affected and that a liability has been imposed on him on a final adjudication by the learned Judge. But it is contended by Mr. Taraporewalla that the decision in

20. In Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, C.J. Of the Orissa H.C., 1974 SC 109, the Supreme Court held as under:-

"7............................ The exercise of contempt jurisdiction being a matter entirely between the Court and the alleged contemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminous a quo for the period of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision would not therefore, fall within the opening words of Section 19, sub-section (1) and no appeal would lie against it as of right under that provision. This of course does not not mean that there is no remedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for contempt on a motion or a reference. Though no appeal lies under Section 19, sub-sec. (1) as of right against such order or decision of the High Court, the Advocate General or any other person who has with the consent in writing of the Advocate General moved the High Court can always come to this Court by a petition for special leave to appeal and the power of this Court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under Article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for contempt against the alleged contemner, if the larger interests of administration of justice so requires.

"8. It is, therefore, clear that the order made by the Full Bench of the Orissa High Court in the present case rejecting the motion made by the appellant and refusing to initiate a proceeding for contempt against the Chief Justice and other judges was not appealable under Section 19, sub-section (1). We may point out that in the present case it is unnecessary to consider whether an appeal under S. 19, sub-section (1) is confined only to a case where the High Court after initiating a proceeding for contempt finds the alleged contemner guilty and punishes him for contempt as contended by the learned Additional Solicitor General or it extents also to a case where after initiating a proceeding for contempt, the High Court finds that the alleged contemner is not guilty of contempt and exonerates him, or even if he is found guilty of contempt, declines to punish him. A question may well arise whether in the latter case the Advocate General or any other person who has, with the consent in writing of the Advocate General, move the High Court can appeal as of right against the order or decision of the High Court. That question does not arise in the present case and we need not, therefore, express any opinion upon it, though we may point out that in England a right of appeal is given to a disappointed applicant under Section 13, sub-sections (1) and (2) of the Administration of Justice Act, 1960.

9. We are, therefore, of the view that the preliminary objection raised by the respondent is well founded and the appellant is not entitled to maintain the present appeal under section 19, sub- section (1). The appeal therefore, fails and is dismissed. There will be no order as to costs." *

21. Even in a recent judgment in Midnapore peoples' Coop. Bank Ltd. and others v. Chunilal Nanda and others, 2006 SC 254, the Supreme Court reiterated its earlier view with approval and held as under:

"9. On the aforesaid facts and the contentions urged, the following questions arise for consideration:

(i) Where the High Court, in a contempt proceedings, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under Section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved?

(ii)Whether such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an intra- court appeal is available under clause 15 of the Letters Patent?

iii)In a contempt proceedings initiated by a delinquent employee (against the enquiry officer as also the Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked?

Re: Point (i)

10. Section 19 of the Contempt of Courts Act, 1971 ("the CC Act" for short) provides for appeals. Relevant portion of sub-section (1) thereof is extracted below:

"19. (1) An appeal shall lie as of right from any order or decision of the 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:"

The scope of Section 19 has been considered by this court in Baradakanta Mishra v. Justice Gatikrushna Misra, Purshottam Dass Goel v. Justice B.S. Dhillon, Union of India v. Mario Cabral e Sa, D.N. Taneja v. Bhajan Lal, State of Maharashtra v. Mahboob S. Allibhoy and J.S. Parihar v. Ganpat Duggar. These cases dealt with orders refusing to initiate contempt proceedings or initiating contempt proceedings or acquitting/exonerating the contemnor or dropping the proceedings for contempt. In all these cases, it was held that an appeal was not maintainable under Section 19 of the CC Act as the said section only provided for an appeal in respect of orders punishing for contempt.

10.1. In Baradakanta Mishra a three-Judge Bench of this Court held that an order declining to initiate a proceeding for contempt amounts to refusal to assume or exercise jurisdiction to punish for contempt and, therefore, such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. The question as to whether an appeal would be maintainable under Section 19 where the court initiates a proceeding for contempt but after due consideration and hearing finds the alleged contemnor not guilty of contempt, or having found him guilty declines to punish him, was left open.

11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:

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 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution Of India, 1950.

III.In a proceeding for contempt, the High Court can decide whether any contempt of court has been 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 of the CC Act. 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 of the Act, can also encompass the incidental or inextricably connected directions.

V. If the High Court, for whatsoever reason, 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 learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution Of India, 1950 (in other cases).

The first point is answered accordingly.

Re: Point (ii)

12. We will next consider as to whether an intra-court appeal under clause 15 of the Letters Patent was available against the interlocutory order dated 20.11.1998 containing the directions on merits of the dispute. Clause 15 of the Letters Patent provides for an appeal from a "judgment" of a Single Judge in exercise of original jurisdiction to a Division Bench. In Shah Babulal Khimji v. Jayaben D. Kania the scope of clause 15 of the Letters Patent was considered. This Court held:

"The concept of a judgment as defined by the Code Of Civil Procedure, 1908 seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere. The intention, therefore, of the givers of the letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code Of Civil Procedure, 1908. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a contempt of finality in a broader and not a narrow sense. In other words, a judgment can be of three kinds:

(1) A final judgment.- ...............

(2) A preliminary judgment.- .....................

(3) Intermediary or interlocutory judgment- Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceedings. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. (SCC pp. 55- 56, para 113)

............ .............

.... in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. (SCC p.57, para 115)

...............................

..... any discretion exercised or routine orders passed by the trail Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge........

....... the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings (SCC p.58, para 119)"

15. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:

(i) Orders which finally decide a question or issue in controversy in the main case.

(ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case.

(iii) Orders which finally decide a collateral issue or question which is not the subject- matter of the main case.

(iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment.

(v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.

16. The term "judgment" occurring in clause 15 of the letters Patent will take into its fold not only the judgments as defined in Section 2(9) Code Of Civil Procedure, 1908 and orders enumerated in Order 43 Rule 1 Code Of Civil Procedure, 1908, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutor orders which fall under categories (i) to (iii) above, are, therefore, "judgments" for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not "judgments" for the purpose of filing appeals provided under the Letters Patent." *

22. We may also notice that this view was even expressed by the Division Bench of this court. Reference can be made to the case of Vasant Vishnu Vartak by heirs Lilabai and others v. Padmakar Vishnu Vartak, 1983 MhLJ 996.

23. The expression "judgment" was examined by the Supreme Court in the case of Hanskumar Kishan Chand v. The Union of India, 1958 SC 145. The Supreme Court while dealing with the powers of Federal Court specifically held that the word 'judgment' used in section 2(b) would be a judgment, decree or order of a High Court in civil case and an order under Defence of India Act would not be a judgment, decree or order and, thus, leave to appeal could not be granted.

24. In the case of Shah Babulal Khimji v. Jayaben D. Kania and another, 1981 SC 379, the Supreme Court spelt out the guidelines and illustrations in regard to the Letters Patent clause 15 of the Bombay High Court and appeals which could be maintained before the Division Bench against the judgment. The court also explained the phrase 'judgment'. While including some of the interlocutory orders within the ambit of the judgment, the Court stated that it should receive a much wider and liberal interpretation than the word 'judgment' used in Code Of Civil Procedure, 1908. The court clearly stated the dictum that it cannot be said that every order passed by the trial Judge would amount to judgment. It seems that the word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. The court held that an order even though it keeps the suit alive but still decides an important aspect of the trial and which affects the vital right of the defendants would be liable to be construed as judgment.

25. The Supreme Court in its earlier judgments and reference can be made to the case of Nachiappa Chettiar and others v. Subramaniam Chettiar, 1959 SC 258, wherein the Apex court held that the word "judgment" cannot refer to the various interlocutory orders and judgments that may be passed during the hearing of the suit and so the word "judgment" cannot be given the meaning assigned to it by Section 2(9) of the Code Of Civil Procedure, 1908. It cannot mean in the context the statement given by the Judge of the grounds of a decree or order. It must mean a judgment which finally decides all matters in controversy in the suit. Similar view has been expressed by the Supreme Court in Shri Radhey Shyam v. Shyam Behari Singh, 1970 SC 479.

26. While dealing with the provisions of section 17B of the Industrial Disputes Act, 1947, the Supreme Court in the case of Central Mine Planning and Design Institute Ltd. v, . Union of India and another, 2001 SC 20326, held that an order directing employer to pay full back wages instead of 40% awarded by the Tribunal was an order which will fall within the expression "judgment" under Clause 10 of Letters Patent Patna and appeal would lie to the larger Bench. Apex Court laying down a test on this point observed,

"To determine the question whether an interlocutory order passed by one Judge of a High Court falls within the meaning of "judgment" for purposes of Letters Patent, the test is : Whether the order is a final determination affecting vital and valuable rights and obligations of the parties concerned. This has to be ascertained on the facts of each case." *

27. The Supreme Court in the earlier judgment in the case of M/s. Tarapore & Co., Madras v. M/s. V/O. Tractors Export, Moscow and another, 1968 SC 471 had also taken the view that in some cases even an interlocutory judgment which decides the rights of the parties unless it decided the issue finally may not be a judgment under Article 133(1) of the Constitution Of India, 1950.

28. Judgment by the court is an affirmation of a relation between the particular predicate and a particular subject. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognises the commission of the injury, or negatives the allegation of one or the other. [(Gurdit Singh and others v. State of Punjab and others, 1974 SC 151

29. The principles which emerge from the consistent view taken by the Courts including the Supreme Court is, there has to be a conscious determination of rights and liabilities between the parties to a lis before the court of competent jurisdiction. Undisputedly, contempt is a matter primarily between the Court and the contemnor. The proceedings of Contempt of Court would be initiated against the contemnor through any of the specified modes with or without consent of the specified authorities depending on the facts and circumstances of each case. The contempt jurisdiction vested in the Court by development of law as well as under the statutory provision is very wide and is of pervasive magnitude. A party to the proceedings before the court may bring to the notice of the Court any matter which invites the attention of the Court for taking any action under the provisions of the Contempt of Courts Act. Once such act is done, the matter squarely falls in the exclusive domain of the Court of competent jurisdiction, as the purpose of contempt jurisdiction is primarily to ensure enforcement of the order of the court and to maintain the dignity of the judicial administrative system. The contempt proceedings per se are not taken or declined for the benefit or interest of the individual party. When the court passes an order of discharge or holds that no case for contempt of Court is made out and declines to take action, no right or interest of the parties to the lis are determined by the court much less finally. Such an order besides being not appealable on the bare reading of the provisions of section 19 of the Contempt of Courts Act, would also not be a judgment within the meaning of clause 15 of the Letters Patent and as such, not appealable. # The provisions of section 19 of the Act are not ambiguous and do not leave any scope for addition or substitution of a word. Definite legislative intent is clear that right to appeal shall only be available in the cases where there is an order of punishment # . The matter primarily and substantially being between the court and the contemnor , parties to the lis cannot be permitted to raise issues or litigate on the view of the court that a case of contempt is made out or not. Where the court in exercise of its judicial discretion and keeping in mind the well settled principles of contempt jurisdiction finds that contempt proceedings need not be initiated, or no contempt is made out or discharges the contemnor on merits of the case, the appeal before the Division Bench even with the aid of clause 15 of the Letters Patent would not be maintainable # . In the present case, the learned Single Judge has concluded, as already noticed, that the petitioners themselves are not sure as to which of the contemnors are allowed to use the Welfare Centre and while taking an overall view of the matter held that this was not a fit case where action under the Contempt of Courts Act can be taken. This order of the learned Single Judge, in our opinion, is not appealable in view of the unambiguous language of section 19 of the Contempt of Courts Act and an appeal is not maintainable even under clause 15 of the Letters Patent. Although we have no hesitation in rejecting this appeal as being not maintainable, in the facts and circumstances of this case, Parties are left to bear their own cost.