# Naresh Chandra Kapoor v. O.P.S.Malik and another

- **Citation:** (2004) 1 ILRA 209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-01-27
- **Case number:** Civil Misc. Contempt Petition No.673 of 1993
- **Bench:** R.K. Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-chandra-kapoor-v-o-p-s-malik-and-another-40324
- **Pages:** 13

## Headnote

Contempt of Courts Act, 1971-Sections
12
and
20-Writ
Petition-Order
summoning
respondents
No.
1
personally before court-Application for
contempt of Court disobedience and
violation of stay order-Application for
recall of summoning order on ground
that,
since
writ
petition
finally
dismissed-Held, one can not escape the
consequences
of
disobedience
and
violation of interim orders-Committed by
them prior to dismissal of writ petitionplea bar under S. 20 of Contempt of
Courts, not applicable.

Held: Paras 21 & 29

Applying the principle laid down by the
Hon'ble Supreme Court to the facts of
the present case I find that the in the
present
case
the
proceedings
for
contempt
commenced
when
the
petitioner
filed
the
present
application/petition on 8th April, 1993
and, therefore, the bar of Section 20 of
the Act is not applicable.

Thus, in view of the settled proposition
that
one
cannot
escape
the
consequences
of
disobedience
and
violation of interim orders committed by
them prior to the dismissal of the writ
petition, the argument of Sri Sharma
that since the writ petition has finally
dismissed the notices could not have
been
issued
is
misplaced.
If
the
argument of Sri Sharma is accepted then
it would be subversive of the Rule of Law
of Law and would seriously erode the
majesty and dignity of the Courts. There
cannot be any dispute that after the
dismissal of the writ petition no benefit
can be derived from the interim order as
it stands merged but the position for
action being taken for the alleged
disobedience/violation of the interim
orders prior to the dismissal/final orders
being passed in the proceeding stands on
a different footing.
Case law discussed:
1991 (2) AWC 881
AIR 1975 SC 2057
(1992) 3 SCC 1
1997 (1) AWC 453
JT 2001 (6) SC 330
AIR 1997 SC 1240
1994 (Supp) 2 SCC 641
AIR 1999 SC 2140
JT 2001 (1) SC 123
AIR 1956 All 258
1991 Karn.L.J. 352
1952 (2) All.E.R. 567

## Text

_Characters 0–39,989 of 42,521. This is a partial read: ask again with offset=39989 for what follows._

1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2004

BEFORE
THE HON'BLE R.K. AGRAWAL, J.

Civil Misc. Contempt Petition No.673 of 1993

Naresh Chandra Kapoor
...Petitioner
Versus
O.P.S.Malik and another ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri K.M. Dayal
Sri P.N. Saxena
Sri L.M. Singh
Sri Atul Dayal
Sri A.K. Gupta
Sri S.C. Dwivedi

Counsel for the Respondents:
Sri K.S. Singh
Sri S.M.A. Kazmi
Sri U.M. Sharma
S.C.

Contempt of Courts Act, 1971-Sections
12
and
20-Writ
Petition-Order
summoning
respondents
No.
1
personally before court-Application for
contempt of Court disobedience and
violation of stay order-Application for
recall of summoning order on ground
that,
since
writ
petition
finally
dismissed-Held, one can not escape the
consequences
of
disobedience
and
violation of interim orders-Committed by
them prior to dismissal of writ petitionplea bar under S. 20 of Contempt of
Courts, not applicable.

Held: Paras 21 & 29

Applying the principle laid down by the
Hon'ble Supreme Court to the facts of
the present case I find that the in the
present
case
the
proceedings
for
contempt
commenced
when
the
petitioner
filed
the
present
application/petition on 8th April, 1993
and, therefore, the bar of Section 20 of
the Act is not applicable.

Thus, in view of the settled proposition
that
one
cannot
escape
the
consequences
of
disobedience
and
violation of interim orders committed by
them prior to the dismissal of the writ
petition, the argument of Sri Sharma
that since the writ petition has finally
dismissed the notices could not have
been
issued
is
misplaced.
If
the
argument of Sri Sharma is accepted then
it would be subversive of the Rule of Law
of Law and would seriously erode the
majesty and dignity of the Courts. There
cannot be any dispute that after the
dismissal of the writ petition no benefit
can be derived from the interim order as
it stands merged but the position for
action being taken for the alleged
disobedience/violation of the interim
orders prior to the dismissal/final orders
being passed in the proceeding stands on
a different footing.
Case law discussed:
1991 (2) AWC 881
AIR 1975 SC 2057
(1992) 3 SCC 1
1997 (1) AWC 453
JT 2001 (6) SC 330
AIR 1997 SC 1240
1994 (Supp) 2 SCC 641
AIR 1999 SC 2140
JT 2001 (1) SC 123
AIR 1956 All 258
1991 Karn.L.J. 352
1952 (2) All.E.R. 567

(Delivered by Hon'ble R.K. Agrawal, J.)

1. Before deciding the present
application for recall of the order dated
14.5.2002 passed by this Court issuing
Notice to O.P.S. Malik, it is necessary to
state the facts giving rise to the
application filed for contempt and the
proceedings taken by this Court.

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210 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
2.

Naresh
Chandra
Kapoor,
hereinafter referred to as the petitioner,
who has filed the present petition under
Section 12 of the Contempt of Courts Act,
1971, hereinafter referred to as the Act,
for the alleged violation and disobedience
of the order dated 16th March, 1993
passed by this Court in Civil Misc. Writ
Petition no. Nil of 1993 (Naresh Chandra
Kapoor v. Smt. Sayeeda Farooqui and
others, is the landlord and owner of House
no.12/24 Hastings Road (Nyaya Marg),
Allahabad. He had filed a Small Causes
Court Suit being SCC Suit no.19 of 1982
for ejectment of Smt. Sayeeda Farooqui
and others. It was decreed by the
Additional District Judge, Allahabad on
27th April, 1985. Smt. Sayeeda Farooqui
filed Revision no.325 of 1985 before this
Court. The petitioner also filed an
application under Section 21 (1)(a) of the
U.P. Urban Building (Regulation of
Letting, Rent and Eviction) Act, 1972
before the Prescribed Authority which
was registered as Case No.113 of 1983 for
release of the premises on the ground of
bona fide requirement. It is alleged that
during the pendency of the revision Smt.
Sayeeda Farooqui and another person
were on a look out to pass on illegal
possession of the premises to third
persons and contacted O.P.S. Malik,
opposite party no.1. He moved an
application for allotment. While the
application for allotment was pending the
petitioner apprehended that the Prescribed
Authority may allot the premises in
favour of the opposite party no.1 as he
was an I.P.S. Officer and was holding a
very high position in the district being the
D.I.G, C.R.P.F., Allahabad. The petitioner
also apprehended that the Prescribed
Authority is colluding with the opposite
party no.1. He approached this Court by
filing Civil Misc. Writ Petition no. Nil of
1993 in which this Court passed the
following order on 16th march, 1993:-

"Heard the learned counsel for the
petitioner.

It is asserted that in the facts and
circumstances
of
the
present
case,
specially considering the ratio of the
decision of this court in the case of B.D.
Seth vs. Vth Additional city Magistrate
and others, reported in 1988 (2) A.R.C.
442, no vacancy could have been deemed
to come into existence so as to confer
jurisdiction on the Rent Control &
Eviction Officer to proceed under section
16 of the Act. It is further asserted that the
date fixed in the case was preponed
without any notice to the petitioner.

Apart from the normal mode of
Service, the petitioner shall serve the
respondents no.1, 2 and 4 out of Court,
for which purpose, if the requisite steps
taken by 22nd March, 1993, the office
shall handover necessary notices etc., to
the learned counsel for the petitioner. The
notices issued shall indicate that the writ
petition shall be listed for admission on
19th April, 1993 by which date the said
respondents may file a counter affidavit.

An affidavit of service shall be filed
within 15 days.

List this petition for admission on
19th April, 1993.

In
the
meanwhile,
the
further
proceedings consequent upon the order
dated 20.2.1993 as well as the order dated
12.3.1993 shall remain stayed till 19th
April, 1993."

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1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 211
3. It is alleged by the petitioner that
when he along with one of his sons went
to serve a certified copy of the order dated
16th march, 1993 passed by this Court
upon O.P.S. Malik, opposite party no.1
and S.N. Pandey, Prescribed Authority,
opposite party no.2 at the residence, the
opposite party no.1 was present at the
residence of opposite party No.2 in
Collectorate compound. The opposite
party No.1 took the order and after seeing
the same he returned it back to the
petitioner with abusive language to the
petitioner as well as the Hon'ble Judges of
this Court. The words which were said to
have been uttered by O.P.S. Malik and as
alleged by the petitioner are being
reproduced below:-

"MAIN
YEH
BUNGALOW
CHHODUNGA NAHIN CHAHE JO BHI
MUJHE ISAKE LIYE KARNA PADE
HIGH COURT KE JUDGE SALE TO
ANDHEY HAIN STAY ORDER DENA
UNAKE LIYE MAJAK HAI KISAKE
KHILAPH ORDER DEY RAHE HAIN
YEH BHI NAHIN DEKHATE YEHAN
SE BHAG JAO NAHIN TO SALE
ANDER KAR DUNGA"

4. The opposite party no.2 returned
the order after seeing the same and told
the petitioner to file the same in Court on
the next date. It is also alleged that O.P.S.
Malik has also threatened on telephone
with dire consequences not only to the
petitioner but to his entire family and also
abused him. It is also alleged that on 17th
March, 1993 when the petitioner went to
the Court of the Rent Control & Eviction
Officer to serve certified copy of the order
on 16th March, 1993 passed by this
Court, S.N. Pandey, opposite party no.2
did not come to Court on that date at all.
On 18th March, 1993 the petitioner went
to serve the copy of the notices, writ
petition, etc. upon O.P.S. Malik, opposite
party no.1 along with two Advocate
witnesses but the opposite party no.1
refused to accept the notices and copies of
the writ petition and application and
returned it back to the petitioner. He also
entered into the possession of the
premises with the help of S.N. Pandey,
opposite party no.2. It is also alleged that
S.N. Pandey opposite party no.2 passed
by this Court under the pressure of O.P.S.
Malik, opposite party no.1 allotted the
premises in favour of O.P.S.Malik,
opposite party no.1 secretly without
giving any hearing to the petitioner. Thus,
both the opposite parties have violated the
orders passed by this Court on 16th
March, 1993 and have intentionally
disobeyed the said order, thus, have
committed contempt of this Court. In
view of theses allegations, the petitioner
had approached this Court by filing an
application under Section 12 of the Act
for taking action against the opposite
parties for committing contempt. This
Court vide order dated 9th April, 1993
directed the opposite party no.2, S.N.
Pandey, to appear in person with record.
The order passed on 9th April, 1993 is
reproduced below:-

"Opposite party no.2 Sri S.N. Pandey
is directed to appear in person before this
Court and is further directed to place the
entire
record
relating
to
premises
No.12/24,
Nyaya
Marg,
Allahabad
involved in Case No.100/92 on 27.4.1993.
Office is directed to send the notice
immediately to the C.J.M. Allahabad for
the opposite party and the C.J.M.
Allahabad is further directed to serve the
notices of this case on Sri S.N. Pandey
through the District Magistrate, Allahabad
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212 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
to secure his presence before this court on
27.4.1993.

This case shall remain tied up to
me."

5. Thereafter on 27th April, 1993 the
Court passed the following order:-

"List this petition on 4th May, 1993.
Sri S.N. Pandey will again appear on that
date. The record will remain under sealed
cover with the Court.

Learned counsel appearing on behalf of
Sri Pandey has desired to obtain a photo
copy of the order sheet of the record of
Case No.100 of 1992 which is to be kept
of in sealed cover. The Registrar is
directed to arrange to give a photo copy of
the order sheet of Case No.100 of 1992 to
Sri Pandey within 48 hours."

6. On 4th May, 1993 the Court
directed the opposite party no.2 to place
before the Court the daily cause list
register and the diary of the cause list
maintained by his Reader containing list
of case that were fixed on 11th, 12th, 16th
and 19th March, 1993. The case was fixed
for 5th May, 1993 on which date the
Court passed the following order:-

Sri S.N. Pandey, has appeared before
me and has stated that there is only one
daily cause list register maintained in his
office. There is no other diary etc.
maintained by his Reader regarding the
cause list of cases. The daily cause list
register was produced before me, as
directed by order dated 4.5.1993.

The Registrar is directed to obtain
photo copy of the daily cause list register
for the dates 11.3.1993, 12.3.1993,
13.3.1993, 14.3.1993, 15.3.1993, (which
has been over written as 16.3.1993),
16.3.1993 (which has been over written as
17.3.1993) and 18.3.1993 which appears
to be earlier written as 17.3.1993. After
photocopy are obtained the original
register may be returned to Sri Pandey.
The Photo copy of the same be kept on
record under the signatures of the
Registrar.

In case the Registrar receives any
application for issuance of copy of
register, the same may be issued from the
original to the respective applicant.

The opposite party no.2 has prayed
for and is granted seven days time to file
his reply to the affidavit file din support
of the Contempt application.

List on 14.5.1993. On that Sri S.N.
Pandey is directed to appear before me."

7. It appears that the opposite party
no.2 filed a special Appeal being Special
Appeal no.306 of 1993 in which the Court
vide order dated 10th May, 1993 had
stayed further proceedings. In view of the
stay order passed in the Special Appeal,
the proceedings remained stayed. The
Division Bench had passed the following
orders:-

"Shri Umesh Narain Sharma, learned
counsel for the appellant has brought to
our notice the fact that the writ petition
giving rise the contempt application was
dismissed
on
4th
May,
1993
and
thereafter an application was made by the
applicant in the contempt application
praying that the proceeding in the
contempt case may be stayed. The learned
contempt Judge allowed the applicant
time to file counter-affidavit and directed
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1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 213
the contemnor to appear before the
contempt Judge, on 14th May, 1993. In
the circumstances we direct that further
proceeding in the contempt application
shall remain stayed.

List on 17th May, 1993.

Learned counsel for the respondent
has prayed that record of the contempt
case should be available to the Hon.
Contempt Judge when the case is next
listed on 14th May, 1993.

Since the case is listed before the
Hon contempt Judge on 14th May, 1993 it
is obvious that the record shall be
produced before the Hon contempt Judge.

The appellant need not appear in
person in the contempt proceedings till
further orders of this court."

The Division Bench thereafter on
18th May, 1993 dismissed the Special
Appeal.

8. After about 21 months of the
dismissal of the Special Appeal the
Registry put a note on 29th February,
1997 for placing the case before the
Court. It is not clear as to whether the
case was listed before the Court or not as
there is nothing on the order sheet.
However, there is another note on the
order sheet of 19th January, 2001 for
putting up the case before the Court. It
appears that the Registry did not place the
case before the Court as the said note has
been followed by the subsequent dates 1st
February, 2001 and 5th February, 2001.
However vide order dated 12th March,
2001 the records of Civil Revision no.105
of 1993 and 106 of 1993 which were
called for by this Court were directed to
remitted back to the office of the District
Judge, Allahabad. The matter was again
placed before the Court on a note
submitted by the Registry on 2nd May,
2001 on the order sheet regarding
compliance of the order dated 12th
March, 2001. The compliance was noted
by the Court vide order dated 17th May,
2001 and the case directed to be listed in
the 3rd week of July, 2001. It appears that
either the case was not listed before the
Court or for one reason or the other it was
not taken up by the Court as there is
nothing on the order sheet. On an
application being moved by the petitioner
on 19th March, 2002 for taking action
against the opposite party for committing
contempt, which application was directed
to be listed with previous papers vide
order dated 21st March, 2002, the case
was listed before the Court on 14th May,
2002. As notice has not been issued to
either of the opposite parties and there
were serious allegations made in the
petition, which was duly supported by an
affidavit, the Court vide order dated 14th
May, 2002 issued notices to both the
opposite parties. The Court had passed the
following order:-

"It has been stated by Shri S.C.
Dwivedi learned counsel for the petitioner
that the special Appeal No.306 of 1993
which was filed against the order dated
27.4.1993 passed by the learned Single
Judge, wherein notice has been issued to
the opposite party no.2 directing him to
appear in person, has been dismissed on
18.5.1995. A copy of the order is
contained in annexure 2 to the affidavit of
the petitioner filed in support of the
Application No.53854 of 2002.

Let notice be issued to the opposite
no.2.
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214 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Serious allegations have made in
paragraph 18 of the affidavit filed in
support of the contempt petition against
the opposite party no.1 which have
reiterated in para 19 of the affidavit of the
petitioner.

In this view of the matter, let notice
be issued to the opposite party No.1 also.

Notice shall be sent to the Director
General of Police to be served upon Shri
O.P.S.
Malik
wherever
is
posted
presently. The notice shall communicate
that the case will be taken up on 2.7.2002.

The opposite parties no.1 and 2 shall
appear in person on 2.7.2002.

List the matter on 2.7.2002."

9. Both the opposite parties
preferred Special Appeals against the
order dated 14th May, 2002 being Special
Appeals no.168 and 169 of 2002 in which
the Special Appeal Bench was not
inclined to proceed with the appeals and
disposed of the same vide order dated 2nd
July, 2002. On 2nd July, 2002 the
opposite
party
no.2
S.N.
Pandey
personally appeared before the Court. An
application for exemption of personal
appearance as also for recall of the order
dated 14th May, 2002 was filed by the
opposite party no.1 O.P.S. Malik. In the
application for exemption it was stated
that he is presently posted as I.G. Border
Security
Force
at
Rajasthan-Gujarat
Frontier (Border) and seeing the tense
situation on Indo-Pak Border there has
been a standing order to all officers
posted at the Boarder not to leave station
and area at any cost. Considering the
grounds given by the O.P.S. Malik,
opposite party no.1, the Court vide order
dated 2nd July, 2002 had exempted his
personal appearance on that date and for
future dates. The following order was
passed by the Court on 2nd July, 2002:-

"Pursuant
to
the
order
dated
14.5.2002 S.N. Pandey O.P. No.2 is
personally
present
in
Court
today.
 However, O.P. No.1 is not personally
present today as he is posted as I.G.
Border Security Force, Rajasthan. His
personal appearance for today and future
dates is exempted. Sri S.C. Dwivedi
prays for and is allowed ten days for filing
a reply.

List on 26.7.2002.

O.P. No.2 shall appear personally on
the said date."

10. Thereafter the case was listed
several times but could not be taken up
for one reason or the other, mainly, on the
request of the learned counsel for the
opposite party no.1.

11. Under the Rules of the Court, the
application for recall of an order is placed
before the same Judge, if available, who
has passed the said order and therefore the
application for recall has been placed
before me.

12. I have heard Sri U.N. Sharma,
learned Senior Counsel on behalf of the
opposite party no.1 and S/Sri P.N. Saxena
and
Ashok
Khare,
learned
Senior
Counsels assisted by Sri S.C. Dwivedi on
behalf of the petitioner on the application
for recalling the order dated 14th May,
2002.

13. Sri U.N. Sharma learned Senior
Counsel sought recalling of the order
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1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 215
dated 14th May, 2002 passed by this
Court on the following grounds:-

1. The Court cannot initiate any
proceedings for contempt, either on its
own motion or otherwise, after the expiry
of a period of one year from the date on
which the contempt is alleged to have
been committed as, according to him, the
alleged violation/disobedience of the
order dated 16th March, 1993 is said to
have been committed on 16th April, 1993
and 18th April, 1993 and a period of more
than one year had expired since then. This
Court had issued notices to the opposite
party no.1 only on 14th May, 2002 i.e.
after about nine years and, therefore, it is
hit by Section 20 of the Act.

2. The order dated 16th March, 1993
passed in Civil Misc. Writ Petition no. Nil
of 1993 has merged in the final order
dated 4th May, 1993 when the writ
petition itself had been dismissed by this
Court and, therefore, the opposite party
no.1 cannot be proceeded for the alleged
violation/disobedience of the order dated
16th March, 1993 which no longer exists
after 4th May, 1993.

14. He relied upon the decision of
this Court in the case of Smt. Shanti
Kunwar Chaudhary v. Committee of
Management, Vidyawati Darbari Girls
Inter College, Allahabad and another,
1991(2) AWC 881, wherein this court has
held that an order passed in pursuance of
or on the basis of any order or direction
issued by the court in writ petition, falls
automatically with the dismissal of the
writ petition.

15. He further relied upon a decision
of the Hon'ble Supreme Court in the case
of M/s. Mahabir Jute Mills Ltd. v.
Shibban Lal, AIR 1975 SC 2057 wherein
it was held that an order of reference
made by the State Government under the
Industrial Disputes Act on the basis of an
order passed in writ petition falls
automatically with the dismissal of the
writ petition and it is not even necessary
for making a prayer for quashing of such
an order of reference.

16. He further referred to the
decision of the Hon'ble Supreme Court in
the case of Shree Chamundi Mopeds
Ltd. vs. Church of South India Trust
Association CSI Cinod Secretariat,
Madras, (1992) 3 SCC 1 wherein the
Hon'ble Supreme Court has held that
staying of the operation of an order would
mean that the order which has been stayed
would not be operative from the date of
the passing of the stay order and it does
not mean that the said order has been
wiped out from existence.

17. He further relied upon a decision
of this court in the case of Indra
Bahadur v. State of U.P. through its
Collector and another, 1997 (1) AWC
453 wherein this Court has held that even
where the writ petition is withdrawn the
effect is that the interim order passed in
earlier petition stood merged in the final
order and the order of appointment of the
petitioner on a Class III post in pursuance
of the earlier order passed by this Court
stood nullified.

18. Sri P.N. Saxena and Sri Ashok
Khare, learned Senior Counsels on behalf
of the petitioner submitted that for the
alleged violation and disobedience of the
order dated 16th March, 1993 passed by
this Court in Civil Misc. Writ Petition no.
Nil of 1993, the petitioner had approached
this Court by filing the petition on 8th
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216 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
April, 1993. It came up before the Court
on 9th April, 1993 in which the Court had
passed an order directing S.N. Pandey,
opposite party no.2 to appear in person
along with the records. They submitted
that under Section 20 of the Act, the time
limit for initiation of the proceedings for
contempt has been fixed as one year.
According to them, initiation of the
proceedings and taking of the cognizance
are two different things. They submitted
that as the proceedings were initiated by
filing of the petition, the limitation
prescribed under Section 20 of the Act
was not attracted. They relied upon a
decision of the Supreme Court in the case
of Pallav Seth v. Custodian & Ors., JT
2001 (6) SC 330, wherein the Hon'ble
Supreme Court has held that filing of a
petition drawing attention of the Court for
taking cognizance of the contempt would
be initiating the proceeding for contempt
and the subsequent action taken thereon
of refusal or issuance of a notice or
punishment are only steps following or
succeeding to such initiation. They further
submitted that all the persons and the
parties are obliged to follow the interim
orders passed by a Court of law and they
cannot disobey the same merely on the
ground that final orders have not been
passed or the matter is still pending before
the Court for adjudication. They further
submitted that contempt proceedings can
be initiated for disobedience/violation of
the interim orders passed by a Court of
law even where the petition is ultimately
dismissed. They relied upon a decision of
the Hon'ble Supreme Court in the case of
Tayabhai M. Bagasarwalla and another
v. Hind Rubber Industries Pvt. Ltd.,
etc., AIR 1997 SC 1240.

19. Sri U.N. Sharma, learned Senior
Counsel submitted that when this Court
on 9th April, 1993 had directed the
opposite party no.2 to appear in person, it
was presumed that Court did not find any
good grounds for issuance of notice and
taking action against the opposite party
no.1 and, therefore, appears to have
confined the contempt proceeding against
opposite party no.2 alone.

20. Having heard the learned
counsel for the parties I find that the
petitioner
has
alleged
the
violation/disobedience of the order dated
16th March, 1993 passed by this Court in
Civil Misc. Writ Petition no. Nil of 1993.
The opposite parties are said to have
violated/disobeyed the orders dated 16th
March, 1993 and 18th March, 1993. The
present petition was filed in the Registry
on 8th April, 1993 i.e. within a month. It
came up before the Court on 9th April,
1993 when the Court directed the opposite
party no.2, S.N. Pandey, who was the
Prescribed Authority at that time, to
appear before the Court along with certain
records. Notices had not been issued to
either of the opposite parties. The Hon'ble
Supreme Court in the case of Pallav Seth
(supra) has held that proceedings for civil
contempt normally commence with a
person aggrieved bringing to the notice of
the Court the willful disobedience of any
judgment, decree, order etc. which could
amount to the commission of the offence.
The attention of the Court is drawn to
such a contempt being committed only by
a person filing an application in that
behalf. In other words, unless a Court was
to take a suo motu action, the proceeding
under the Act would normally commence
with the filing of an application drawing
to the attention of the Court to the
contempt having been committed. When
the
judicial
procedure
requires
an
application being filed either before the
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1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 217
court or consent being sought by a person
from the Advocate-General or a Law
Officer it must logically follow that
proceeding for contempt are initiated
when the applications are made.

The Hon'ble Supreme Court further
held as follows:-

"40. In other words, the beginning of
the
action
prescribed
for
taking
cognizance of criminal contempt under
Section 15 would be initiating the
proceedings
for
contempt
and
the
subsequent action taken thereon of refusal
or issuance of a notice or punishment
thereafter are only steps following or
succeeding to such initiation. Similarly, in
the case of a civil contempt filing of an
application drawing the attention of the
court is necessary for further steps to be
taken under the Contempt of Courts Act,
1971.

41. On of the principles underlying the
law of limitation is that a litigant must act
diligently and not sleep over its rights. In
this background such an interpretation
should be placed on Section 20 of the Act
which does not lead to an anomalous
result causing hardship to the party who
may have acted with utmost diligence and
because of the inaction on the part of the
Court a contemner cannot be made to
suffer. Interpreting the Section in the
manner canvassed by Mr. Venugopal
would mean that the court would be
rendered powerless to punish even though
it may be fully convinced of the blatant
nature of a contempt having been
committed and the same having been
brought to the notice of the court soon
after the committal of the contempt and
within the period of one year of the same.
Section 20, therefore, has to be construed
in a manner which would avoid such an
anomaly and hardship both as regards the
litigant as also by placing a pointless
fetter on the part of the court to punish for
its contempt. An interpretation of Section
20, like the one canvassed by the
appellant,
which
would
render
the
constitutional
power
of
the
courts
nugatory in taking action for contempt
evening
cases
of
gross
contempt,
successfully hidden for a period of one
year by practicing fraud by the contemner
would render Section 20 as liable to be
regarded as being in conflict with Article
129 and/or Article 215. Such a rigid
interpretation must therefore be avoided.

42. The decision in Om Prakash Jaiswal's
case (supra), to the effect that initiation of
proceedings under Section 20 can only be
said to have occurred when the court
formed the prima facie opinion that
contempt has been committed and issued
notice to the contemner to show cause
why it should not be punished, is taking
too narrow a view of Section 20 which
does not seem to be warranted and is not
only going to cause hardship but would
perpetrate injustice. A provision like
Section 20 has to be interpreted having
regard to the realities of the situation. For
instance, in a case where a contempt of a
subordinate court is committed a report is
prepared whether on an application to
court or otherwise, and reference made by
the subordinate court to the High Court
can take further action under Section 15.
In the process, more often than not, a
period of one year elapses. If the
interpretation of Section 20 put in Om
Prakash Jaiswal's case (supra) is correct, it
would mean that notwithstanding both the
subordinate court and the High Court
being prima facie satisfied that contempt
has been committed the High Court would
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218 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
become powerless to take any action. On
the other hand, if the filing of an
application before the subordinate court
or the High Court making of a reference
by a subordinate court on its own motion
or the filing an application before an
Advocate-General
for
permission
to
initiate contempt proceedings is regarded
as initiation by the court for the purposes
of Section 20, then such an interpretation
would not impinge on or stultify the
power of the High Court to punish for
contempt which power, Director of
Education hors the Contempt of Courts
Act, 1971 is enshrined in Article 215 of
the Constitution. Such an interpretation of
Section 20 would harmonise that Section
with the powers of the courts to punish for
contempt which is recognized by the
Constitution."

21. Applying the principle laid down
by the Hon'ble Supreme Court to the facts
of the present case I find that the in the
present case the proceedings for contempt
commenced when the petitioner filed the
present application/petition on 8th April,
1993 and, therefore, the bar of Section 20
of the Act is not applicable.

22. So far as to whether the Court
could take cognizance and issue notices to
the opposite parties for the alleged
violation/disobedience of the order dated
16th March, 1993, which was an interim
order and the writ petition in which the
said order had been passed had been
finally dismissed by this Court is
concerned, it may be mentioned here that
it is well settled that an order even though
interim in nature is binding till it is set
aside by a competent Court and it cannot
be ignored on the ground that the Court
which passed the order had no jurisdiction
to pass the same. Any disobedience and
violation of the interim orders can expose
the
person
alleged
to
be
disobeying/violating the order for action
under the Act. In the case of Ravi S. Naik
v. Union of India, 1994 (Suppl) 2 SCC
641 the Hon'ble Supreme Court has held
as follows:-

"In the absence of an authoritative
pronouncement by this Court the stay
order passed by the High Court could not
be ignored by the Speaker on the view
that his order could not be subject matter
of Court proceedings and his decision was
final. It is settled law that an order, even
though interim in nature, is binding still it
is set aside by a competent Court and it
cannot be ignored on the ground that the
Court which passed the order had no
jurisdiction to pass the same. Moreover
the stay order was passed by the High
Court which is a superior court of Record
and in the case of a superior Court of
Record, it is for the Court to consider
whether any matter falls within its
jurisdiction or not. Unlike a Court of
limited jurisdiction, the superior court is
entitled to determine for itself questions
about its own jurisdiction.(See: Special
Reference No.1 of 1964: (1965(1) SCR
413 at p.499: AIR 1965 SC 745 at
p.789)."

23. In the cases of K.S. Villasa v.
M/s. Ladies Corner and another, AIR
1999 SC 2140 and Madan Lal Gupta v.
Ravinder Kumar, JT 2001 (1) SC 123,
the Hon'ble Supreme Court has held that
if an interim order is intentionally violated
or disobeyed action can be taken under
the provisions of the Act.

24. In the case of State of U.P. v.
Ratan Shukla, AIR 1956 All 258 this
Court has held that it is not the law that a
http://www.allahabadhighcourt.nic.in
1 All] Naresh Chandra Kapoor V. O.P.S. Malik and another 219
Court dealing with a mater which is
beyond its jurisdiction can be contemned
with impunity or that the liability of a
person to be punished for contempt of a
court depends upon whether the court was
acting within its jurisdiction at the time
when it is alleged to have been contemned
the opposite party. This Court has held as
follows:-

"That fact that Shri S.M. Ifrahim had
no jurisdiction to hear the appeals,
however, does not mean that no contempt
could be committed of him. So long as he
was seized of the appeals, no contempt
could be committed of him.

It is not the law that a Court dealing
with a matter which is beyond its
jurisdiction can be contemned with
impunity or that the liability of a person to
be punished for contempt of a court
depends upon whether the court was
acting within its jurisdiction at the time
when it is alleged to have been contemned
the opposite party, therefore, cannot claim
that he is not guilty of contempt because
Shri S.M. Ifrahim had no jurisdiction to
decide the appeals."

25.

In
D.M.
Samyulla
v.
Commissioner, Corporation of the City
of Bangalore, 1991 Karnataka Law
Journal 352, the Karnataka High Court
stated the law in the following terms, with
reference to the decision of the Court of
Appeal in Hadkinson v. Hadkinson,
(1952 (2) All ER 567): "the principle laid
down in the said decision is, a party who
knows an order, whether it is null or valid,
regular or irregular, cannot be permitted
to disobey it and it would be dangerous to
allow the party to decide as to whether an
order was null or valid or whether it was
regular or irregular."
26. In Hadkinson v. Hadkinson,
(1952) 2 All ER 567 the Court of Appeal
held:

"It is the plain and unqualified
obligation of every person against, or in
respect of whom an order is made by a
court of competent jurisdiction to obey it
unless and until that order is discharged.
The uncompromising nature of this
obligation is shown by the fact that it
extends even to cases where the person
affected by an order believes it to be
irregular or even void. Lord Cottemnham,
L.C. said in Chuck v. Cremer, (1846) 1
Co-op Temp Cott 205 (342).

''A party, who knows of an order,
whether null or valid, regular or irregular,
cannot be permitted to disobey it....... It
would be most dangerous to hold that the
suitors,
or
their
solicitors,
could
themselves judge whether an order was
null or valid---- whether it was regular or
irregular, that they should come to the
Court and not take upon themselves to
determine such a question. That the
course of a party knowing of an order,
which was null or irregular, and who
might be affected by it, was plain. He
should apply to the court that it might be
discharged. As long as it existed it must
not be disobeyed.'

27. Such being the nature of this
obligation, two consequences will in
general follow from its breach. The first is
that anyone who disobeys an order of the
court (and I am not now considering
disobedience of orders relating merely to
matters of procedure) is in contempt and
may be punished by committal or
attachment or otherwise. The second is
that no application to the Court by such a
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220 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
person will be entertained until he has
purged himself of his contempt."

28. Approving the view taken by
this Court in the case of State of U.P. v.
Ratan
Shukla,(supra)
and
of
the
Karnataka High Court in the case of D.M.
Samyulla (supra) the Hon'ble Supreme
Court in the case of Tayabbhai M.
Bagasarwalla and another v. Hind
Rubber Industries Pvt. Ltd., etc., AIR
1997 SC 1240 has held that where the
interim orders have been flouted and
disobeyed when they were in force and
ultimately it has held that the Civil Court
has no jurisdiction to entertain the suit,
the interim orders made therein do not
become non est and the persons can be
punished for their violation/disobedience.
The Hon'ble Supreme Court held as
follows:-

"...Ultimately, no doubt, High Court
has found that the Civil Court had no
jurisdiction to entertain the suit but all this
took about six years. Can it be said that
orders passed by the Civil Court and the
High Court during this period of six years
were all non est and that it is open to the
defendant to flout them merrily, without
fear of any consequence. Admittedly, this
could not be done until the High Court's
decision on the question of jurisdiction.
The question is whether the said decision
of the High Court means that no person
can be punished for flouting or disobeying
the interim/interlocutory orders while they
were in force, i.e., for violations and
disobedience committed prior to the
decision of the High Court on the
question of jurisdiction. Holding that by
virtue of the said decision of the High
Court (on the question of jurisdiction), no
one can be punished thereafter for
disobedience or violation of the interim
orders committed prior to the said
decision of the High Court, would indeed
be subversive of rule of law and would
seriously erode the dignity and the
authority of the Courts. We must repeat
that this is not even a case where a suit
was filed in wrong Court knowingly or
only with a view to snatch an interim
order. As pointed out hereinabove, the
suit was filed in the Civil Court bona fide.
We are of the opinion that in such a case
the
defendants
cannot
escape
the
consequences of their disobedience and
violation
of
the
interim
injunction
committed by them prior to the High
Court's decision on the question of
jurisdiction."

29. Thus, in view of the settled
proposition that one cannot escape the
consequences
of
disobedience
and
violation of interim orders committed by
them prior to the dismissal of the writ
petition, the argument of Sri Sharma that
since the writ petition has finally
dismissed the notices could not have been
issued is misplaced. If the argument of Sri
Sharma is accepted then it would be
subversive of the Rule of Law of Law and
would seriously erode the majesty and
dignity of the Courts. There cannot be any
dispute that after the dismissal of the writ
petition no benefit can be derived from
the interim order as it stands merged but
the position for action being taken for the
alleged disobedience/violation of the
interim orders prior to the dismissal/final
orders being passed in the proceeding
stands on a different footing.

30. In view of the forgoing
discussion, I do not find any good ground
for recalling the order dated 14th May,
2002. The application for recall is,
therefore, rejected.
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1 All] Ram Bahadur alias Laxmi Prasad V. Collector, Hamirpur and others 221
31. As about 10 years are shortly
going to expire and the proceedings are
only at the stage just after issue of Notice,
the opposite parties be directed to appear
personally before the Court on 24th
February, 2004. List this case before the
appropriate Bench on 24th February,
2004.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 29882 of 1995

Ram Bahadur Alias Laxmi Prasad

 ...Petitioner
Versus
Collector, Hamirpur and others

 ...Respondents