Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1820 OF 2018
[@ SPECIAL LEAVE PETITION (C) NOS. 9820 OF 2016]
R K ARORA GENERAL MANAGER & ANR. Appellant(s)
VERSUS
M/S ACE ENTERPRISES Respondent(s)
J U D G M E N T
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
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2018.02.13
17:13:04 IST
Reason:
application was filed for initiating contempt
proceedings. The prayer reads as follows :-
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“It is therefore prayed that the contempt
proceedings may please be intiated 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
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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
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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
thereto. There is no provision in this
Act to empower a subordinate court to
punish contempt of itself. However,
Section 10 of the Contempt of Courts Act
vests with the High Court the power to
punish contempts of subordinate courts.
It says that the High Court shall have
and exercise the same jurisdiction,
powers and authority in accordance with
the same procedure and practice, in
respect of contempts of courts
subordinate to it as it has and
exercises in respect of contempts of
itself; provided that the High Court
shall not take congnizance of a contempt
alleged to have been committed in
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respect of a court subordinate to it
where such contempt is an offence
punishable under the Ranbir Penal Code,
1989. Thus, the law provides that if
there is contempt of any court
subordinate to the High Court, it is the
High Court alone which has the power to
punish for such contempt. Essentially,
therefore, a court subordinate to the
High Court cannot take cognizance and
initiate proceedings to punish for
contempt of itself, the question of
conducting trial of an application for
contempt and taking a decision thereon
is far remote.
13. Since the subordinate courts do not
have the jurisdiction to take cognizance
of contempt of itself, or initiate
proceedings on a contempt petition or
try it, it cannot proceed to decide it
finally. In the instant case, the
learned Sub-Judge has not only taken
cognizance but has proceeded to
initiate, and conducted, proceedings
thereon and finally decided it. Thereby
the learned Sub-Judge has assumed a
jurisdiction, not vested in it under
law.
17. During the course of arguments of
this case, the learned counsel for the
petitioner brought it to the notice of
the Court that the Arbitrator appointed
in violation of the ad-interim orders of
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the trial court has ultimately concluded
the proceedings and passed the final
award against the interests of the
petitioner. Pending decision in the
contempt petition in terms of applicable
laws, there shall be stay of final
award. It hardly needs a mention here
that in the event it is found that there
has been a violation of the interim
order of the trial court, the
appointment of the Arbitrator and the
proceedings conducted by him together
with any award passed by him would be
rendered non-est in the eyes of law.”
6. When the matter came up before this Court, the
following order was passed on 18.04.2016 :-
“Though we do not have any quarrel with
the settled position of law, as held by
the High Court that the trial court does
not have any jurisdiction to initiate
proceedings under the Jammu and Kashmir
Contempt of Courts Act, 1997, we find
that the High Court has omitted to take
note of the fact that there are two
separate proceedings under different
contracts.
In that view of the matter, issue
notice.
In the meantime, there shall be stay of
further proceedings pursuant to the
impugned order.”
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7. Having heard Mr. Tushar Mehta, learned Additional
Solicitor General, and Mr. Abdul Rehman, representing
the respondent on permission, we do not feel it
necessary to refer to any other factual details.
Though an application for contempt was filed before
the trial court, it was, in fact, a petition for
taking action under Order XXXIX Rule 2A of Jammu and
Kashmir Code of Civil Procedure Act, 1977. It is not
a case for initiating contempt on the face of it.
These are two different jurisdictions. That is all
that has been clarified by the High Court. The
appeal is, hence, disposed of with the following
directions :-
i) The application filed by the respondent for
initiating contempt shall be treated as an
application for taking action under Order XXXIX Rule
2A of the Jammu and Kashmir Code of Civil Procedure.
It shall be renumbered accordingly.
ii) The trial court shall first see whether there is
any disobedience of the order of injunction and in
case the court enters a finding of disobedience, the
rest under Order XXXIX Rule 2A alone shall follow.
8. The submission made by the appellants regarding
separate contracts and pending application under
Section 8 of the Jammu and Kashmir Arbitration Act
etc. are open to the appellants to canvas before the
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trial court at the appropriate stage. It will also
be open to the respondent to take all available
contentions before the trial court. Being a matter
pending since long, we direct the trial court to take
a decision accordingly on the application
expeditiously and preferably within a period of three
months from the date of receipt of a copy of this
Judgment.
No costs.
.......................J.
[ KURIAN JOSEPH ]
.......................J.
[ MOHAN M. SHANTANAGOUDAR ]
New Delhi;
February 07, 2018.
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ITEM NO.4 COURT NO.5 SECTION XVI -A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9820/2016
(Arising out of impugned final judgment and order dated 16-12-2015
in OWP No. 377/2014 passed by the High Court Of Jammu&kashmir At
Srinagar)
R K ARORA GENERAL MANAGER & ANR. Petitioner(s)
VERSUS
M/S ACE ENTERPRISES Respondent(s)
(IA No.78069/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS and IA
No.126071/2017-PERMISSION TO APPEAR AND ARGUE IN PERSON)
Date : 07-02-2018 This matter was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
For Petitioner(s) Mr. Tushar Mehta, ASG
Mr. Rahul Narayan, AOR
Ms. Mala Narayan, Adv.
Mr. Sushant Goel, Adv.
For Respondent(s) Ms. Aishwarya Bhati, AOR
Respondent-in-person
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The civil appeal is disposed of in terms of the signed
reportable Judgment.
Pending Interlocutory Applications, if any, stand disposed of.
(JAYANT KUMAR ARORA) (MADHU NARULA)
COURT MASTER COURT MASTER
(Signed reportable Judgment is placed on the file)