A single Judge has the jurisdiction to proceed with a contempt application for breach of his own order, even if a stay application is pending before the appeal court. However, the single Judge should consider whether the contempt application has been filed with undue haste or urgency to bypass the appeal court and obtain relief without having to wage the battle in the higher court.

Ajoy Nath Ray, J.

1. This is an application for contempt filed by the writ petitioner for violation of my order dated 7th March, 1994 passed in the main writ petition. I had passed an order on 7.3.94 for relesae of the goods to the writ petitioners after consideration of s. 110 of the Customs Act. I find no defence to the contempt application save and except that a stay application is pending disposal in the appeal court in aid of the appeal sought to be preferred from my order. But even though the said application is pending" there is no stay of operation of my order. One would have thought that since, according to a well-known principle, the pendency of an appeal does not automatically imply a stay, such pendency of the stay application before an appeal court would be no answer whatsoever to a contempt application already initiated for breach and disobedience of the first court's order, i.e., my order.

2. Mr. Prantosh Mukherjee, learned Council for contemner respondent, has drawn my attention to a recent pronouncement of the Supreme Court which does call for a reasoned decision. In the said case reported in 1994 AIR sew 460 (Modern Food Industries (India) Ltd. & Anr. vs. Sachidanand Dass & Anr.), the learned Judges of the Supreme Court observed as follows :

"If, without considering the prayer for stay, obedience to the Single Judge's order was insisted upon at the pain of committal for contempt, the applicants may find, as has now happened, the very purpose of appeal and the prayer for interlocutory stay infructuous. It is true that a mere filing of an appeal and an application for stay do not by themselves absolves the appellants from obeying the order under appeal and that any compliance with the learned single Judge's order would be subject to the final result of the appeal. But then the changes brought about in the interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice. Wherever the order whose disobedience is complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay stand-by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. This is the view taken in State of J & K vs. Mohammad Yakoob Khan, 1992 (2) Scale 424."

3. The above paragraph and the proposition contained therein have to be given effect to by me. That is the simple law of precedent. I notice that it has been repeatedly mentioned that mere filing of an appeal or an application for stay do not by themselves absolve the respondent from the duty of obedience : It has also been said that where a stay application is pending in the appeal court, it will be appropriate to take up the stay application either earlier than or simultaneously with the application for contempt.

4. With the greatest of respect I am unable to understand how a contempt application which is pending before a single Judge like me can be taken up simultaneously with the stay application which is pending before a Division Bench. Should I then stay my hands from dealing with the contempt application and wait until the stay application is over? I cannot do that as a matter of inflexible principle because, in that event, I would be going against the other law laid down by the Supreme Court that mere filing of an application does not operate as a stay.

5. I would venture to read the above paragraph of the Supreme Court's judgment as laid down this, that, in an appropriate circumstance, a single Judge before whom a contempt application is brought fur breach of his own order and to whose notice it is also brought that a stay application and an appeal from his order are pending (although no stay order from the appeal court has yet been passed), that single Judge, me, in the