Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S.M. Rizvi,G.A. Kuchhai, JJ.
Sajad Majid (Dr.) - Appellant
Versus
Syed Zahoor Ahmad (Dr.) & Anr. - Respondent
Contempt Petition No. 36/1983
Decided On : 30 March, 1989
CONTEMPT OF COURT - APPEAL - LIMITATION PERIOD - STAY - NON-COMPLIANCE OF COURT ORDER - PENDENCY OF APPEAL - NO BAR TO INITIATE CONTEMPT PROCEEDINGS OR ISSUE RULE - STAY ORDER REQUIRED FOR NON-COMPLIANCE DURING LIMITATION PERIOD.
Fact of the Case:
A writ petition was filed challenging the selection of MD Course by Sher-i-Kashmir Institute of Medical Science Soura, Srinagar, for Session 1988-89. The petitioner was granted provisional admission to the MD course subject to the outcome of the writ petition. The respondent, Director of the Institution, despite the order being served on him, did not comply with the court direction. A contempt petition was filed before a Division Bench. The respondent filed objections and argued that the contempt proceedings could not be initiated as an SLP against the order was pending before the Supreme Court.
Finding of the Court:
The court held that the pendency of the appeal before the appellate court will not bar the court to issue Rule for non-compliance of court order which is not stayed by the appellate court or modified by the same court. The court further held that there is no bar to entertain contempt proceedings or issue Rule during limitation period provided for appeal or even if the appeal against the order is filed and stay is not obtained.
Issues: Whether a party can be proceeded in contempt or rule issued against him before exhausting the time limit for appeal against the order issued by the court sought to be implemented particularly when remedy of appeal is availed and pending disposal before the Superior court.
Ratio Decidendi: The court relied on the following principles: * A party against whom an order has been passed by the court, having knowledge of the same or the order being served on him, cannot take refuge of limitation period for preferring an appeal for non-compliance of the order or even if the appeal has been filed but no stay has been obtained against the order, contempt proceedings will be entertained against such party for non-compliance. * Mere pendency of appeal before the appellate court against the order will not absolve the party not to comply the order and if he so does, it will be on his own risk without any legal justification and the provisions of appeal even if availed without any stay, will expose the party to contempt proceedings for non-compliance and pendency of such appeal will not protect him from facing the proceedings of non-compliance of the order. * Once a relief has been granted by a court not modified or varied by such court or its execution stayed by appellate court, its compliance is warranted from the date the party against whom, it, is passed or from the date he acquires knowledge of the said order.
Final Decision: The court answered the reference, formulated in the form of question accordingly. The contempt petitions will come up for further order before the court early.
1. In this contempt petition a question has been formulated by a Division Bench on 15-3-1989 on an objection raised by learned counsel for the alleged contemnor in which one of us (Rizvi J.) has been a member set a question for adjudication, at this stage, in these words :-
An objection is projected by Mr. B. A. Khan that in case an order is passed by the court which is open to appeal and the party concerned against whom the proceedings for contempt are brought, has availed of the remedy, can a case be considered for contempt or issuance of a Rule against the wrong doer?"
2. Before disposing the question the facts of the case need to be narrated. It appears that the petitioner by way of writ petition No : 379/88 challenged the selection of MD Course by Sher-i-Kashmir Institute of Medical Science Soura, Srinagar, for Session 1988-89 and while disposing the CMP No : 4056 of 1988 filed along with the petition the petitioner was granted provisional admission to the MD course to be quoted in brief in these words ; -
"We therefore, allow this CMP and order that the petitioner shall be admitted to MD (Medicines) provisionally at his own risk and responsibility and subject to the outcome of the writ petition, in Sher-i-Kashmir Institute of Medical Sciences, Soura, Srinagar".
The respondent No. 1, Director of the Institution concerned, despite the order being served on him did not comply the court direction resulting in filing of this contempt petition before a Division Bench. Instead of framing the rule against the respondent on 16-2-1989 the court gave a direction on the petition in these words :-
"Without framing rule, the respondents are directed to report compliance of order dated 28.1.1989 within one week. List immediately after one week. Notice be given dasti."
3. The matter again came up before the Division Bench on 1.3.1989 and for non-complice of court direction dated 28.1.1.989 and for non-observance of the direction dated 16.2.1989 indicated, a show cause notice came to be issued against the respondent No: 1. The contempt petition came up before the Division Bench on 15.3.1989, when objections were filed and in para 11 of the same prayer was made to defer the hearing of the contempt petition pending disposal of the S. L. P. before the Supreme court against the order sought to be implemented and allegedly flouted by the respondent No: 1. It is out of this objection raised by learned counsel for the respondent, the Division Bench indicated has framed the question: whether a party can be proceeded in contempt or rule issued against him before exhausting the time limit for appeal against the order issued by the court sought to be implemented particularly when remedy of appeal is availed and pending disposal before the Superior court.
4 We have heard learned counsel for the parties.
5. Mr. Khan, Chief Govt. Advocate, for the respondent No: 1 reiterating the objection raised argued that the respondent No: 1 has statutory right to file an appeal against the order sought to be implemented and in fact has filed a S. L. P. before the Supreme court against the order, therefore, contempt proceedings cannot be initiated rule issued against the respondent, as the limitation period for appeal is neither exhausted nor the pending appeal is disposed, thus, before the limitation period for filing the appeal is exhausted contempt proceedings cannot be entertained. Mr. Khan, CGA in support of his argument referred to AIR ; 1975 : Allahabad ; 231.
6. Mr. Wani, for the petitioner on the other hand, argued that the remedy of appeal against the order sought to be implemented will not absolve a party to defer the compliance of court direction during limitation period for such appeal unless the appellate e court has issued a stay order.
7. We have given our thoughtful consideration to the arguments advanced.
8. It is not disputed before us that SLP against the court direction has been filed before the Supreme Court. It is also not disputed that
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
