The trial court does not have jurisdiction to initiate contempt proceedings and decide on the contempt petition. The application for contempt was to be treated as an application for taking action under Order XXXIX Rule 2A of the Jammu and Kashmir Code of Civil Procedure.

JUDGMENT :

KURIAN, J.

1. Leave granted.

2. On 22.06.2011, the Court of Small Causes, Srinagar, passed an order of injunction in the

following terms :-

“The application in hand will not be allowed, there are chances that the suit of the applicant will become infructuous. So in the interests of justice the application in hand is allowed and the proceedings before the arbitration with regard to matter titled M/s ACE Enterprises Vs. Union of India and ors is stayed till the objections from the other side is filed. Put up this file on 26-07-11.”

3. Alleging violation of the above order, an application was filed for initiating contempt proceedings. The prayer reads as follows :

“It is therefore prayed that the contempt proceedings may please be initiated and the contemnors be punished according to law and the order of revival passed by the Arbitrator may please be stayed.”

4. The Court of Small Causes treated the application filed by the respondent as an application for contempt without mentioning any provision. It is also significant to note that even the applicant had not mentioned any provision for initiating contempt.

The Court passed an order dated 06.11.2013 by entering a finding that there is no contempt and that there is no violation of the order dated 22.06.2011. The operative portion of the order, to the extent relevant, reads as follows :-

“The proceedings of the arbitration continued by the Arbitrator, is based on the understanding of the Arbitrator and the learned counsel for the defendants as to the correct import of the order dated 22-06-2011. The said understanding arrived at, though is borne out from the facts and circumstances pertaining to the controversy, cannot be construed as willful and deliberate attempt on the part of counsel for parties involved, to flout the order of the court dated 22-06-2011. The arbitration proceedings is an independent and statutory remedy available under the provisions of Jammu and Kashmir Arbitration Act, 2002. The provisions of said Act have overriding effect over the general laws. Exercise of statutory remedy and proceedings under the special act, cannot be scuttled in ordinary course of events. Only if the statute provides for such exercise of power by the civil court, the civil court can enter into the domain of such jurisdiction, that too in limited sphere.

The exercise of jurisdiction by the Arbitrator, available under the provisions of Jammu and Kashmir Arbitration Act, advise rendered by the learned counsel representing the defendant in the court or before the Arbitrator, and proceedings initiated by any party in exercise of statutory right, cannot be construed as flouting of the order of the civil court or willful or deliberate violation of the order, unless the violation is clear, emphatic and apparently willful and deliberate, aimed at defeating the order passed by the court. From the nature of the order passed by the court of Sub-Judge/Judge Small Causes Court, Srinagar, and the facts and circumstances pertaining to the case, I find no flouting or violation of the order dated 22.06.2011, by the persons named in the contempt application. No justifiable and sufficient ground exists for proceedings against the said named persons for contempt of court. Accordingly, the contempt proceedings are dropped against the said named persons. Application is dismissed. Record of application be made part of suit file on completion.”

5. That order was challenged by the respondent before the High Court. The High Court has considered the matter in extenso. At paragraphs 11, 13 and 17, the High Court has entered its findings as follows :-

“11. Admittedly, the impugned order has been passed by the learned Sub-Judge in a contempt petition filed by the petitioner. The Jammu and Kashmir Contempt of Courts Act, 1997 (Act No. XXV of 1997) (for short, Contempt of Courts Act) was enacted to define and limit the power of certain courts in punishing contempt of courts and to regulate their procedure in relation th