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2010 Supreme(J&K) 204
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohd. Yaqoob Mir,Gh. Hasnain Massodi, JJ.
Ab. Gani Bhat - Appellant
Versus
State & Ors. - Respondent
LPA No. 249/2009
Decided On : 14 May, 2010
Advocate For Appellant: Appellant in person
Advocate For Respondent: None
An appeal in contempt cases can only lie when a punishment is passed in the exercise of contempt jurisdiction.
Headnote:
Contempt of Court - Maintainability of Appeal - The court dismissed the appeal against the order initiating contempt proceedings, stating that the appeal was not maintainable as no punishment had been passed in the exercise of contempt jurisdiction. The appellant was directed to seek other permissible remedial measures.
Fact of the Case:
The appellant filed for initiating contempt proceedings against the respondents for not disbursing the full amount of arrears of subsistence allowance as ordered by the court.
Finding of the Court:
The court found that the appeal against the order initiating contempt proceedings was not maintainable as no punishment had been passed in the exercise of contempt jurisdiction.
Issues: The main issue was the maintainability of the appeal against the order initiating contempt proceedings.
Ratio Decidendi: The court applied the legal principle that an appeal can lie only when in exercise of contempt jurisdiction any punishment is passed.
Final Decision: The appeal was dismissed as not maintainable, but the appellant was given liberty to seek other permissible remedial measures.
1. Vide order impugned dated 3.9.2009, CMP No.2674/2001, filed for initiating contempt proceeding against respondent No.4 therein, has been dismissed being misconceived and not maintainable. Aggrieved thereof, instant appeal has been filed, non maintainability of which warrants its dismissal for the reasons to follow:
In terms of the judgment rendered in SWP No.2578/98, the respondents had to disburse the subsistence allowance to the appellant. Grievance of the appellant is that the full amount of arrears of subsistence allowance have not been paid to him, therefore, respondents have violated the order, so are liable to be proceeded for having committed contempt of the Court. Earlier the appellant seem to have filed a motion for initiating contempt proceedings which has been disposed of with the direction to the respondents to release the subsistence allowance after taking an undertaking from the appellant. Another contempt petition No.26/2003 has been rejected with liberty to the appellant to launch fresh proceedings before the competent forum if advised.
2. The appeal against the order dated 3.9.2009, by virtue of which CMP for initiating contempt proceedings, has been dismissed, on the face of it is not maintainable. In terms of Section 19 of the Contempt of Courts Act, appeal can lie only when in exercise of contempt jurisdiction any punishment is passed. Similar view has been taken by the Division Bench of this Court in LPA No. 153/2007 decided on 16.3.2007, that too in the case of the appellant titled Abdul Gani Bhat v. State & Ors.
3. The position vis-a-vis maintainability of the appeal has also been dealt with by the Honble Apex court in the judgment reported in AIR 1974 SC 2255, wherein it has been held that "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."
4. Applying the ratio as has been laid down, the present appeal is not maintainable, therefore, is dismissed as such. However, appellant shall be at liberty to have recourse to other permissible remedial measures, if he so chooses.
