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Judgment
G.A. Kuchhai, J.—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 contemner 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 wrongdoer?
Before disposing the question the facts of the case need to be narrated. It appears that the petitioner by way of writ petition No. 1379/88
challenged the selection of MD Course by Sheri-Kashmir Institute of Medical Science, Soura, Srinagar, for Session 1988-89 and while disposing
the CMP No. 4056 of 1988 filed along with the writ 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 Sheri-Kashmir Institute of Medical Sciences, Soura, Srinagar.
The respondent No. 1, Director of the Institution concerned disputed 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 a 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.
The matter again came up before the Division Bench on 1-3-1989 and for non-compliance of Court direction dated 28-1-1989 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 SLP 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 (sic) 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.
We have heard learned Counsel for the parties.
Mr. Khan, Chief 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 SLP before the Supreme Court against the order, therefore, contempt
proceedings cannot be initiated rather 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,
CCA in support of his argument referred to AIR 1975 AH 213.
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 Court has issued a stay order.
We have given our thoughtful consideration to the arguments advanced.
It is not disputed before us that SLP against the Court direction has been filled before the Supreme Court. It is also not disputed that no stay has
been obtained against the implementation of the order but all the same the Court direction has been kept in abeyance by the respondent simply
under the pretext of pendency of appeal before the apex Court against the Court order. There is no doubt that appeal against a judgment from one
forum to another forum may be available under the Statute, the question is : Whether this provision even if availed by a party without obtaining a
stay from the appellate Court will ipso facto keep the implementation of the order in abeyance? The proposition put forth by Mr. Khan, CGA
appears to us misconstruing the provision of appeal and period of limitation. Non-compliance of the order during the pendency of appeal without
stay order appears to us an attempt by a party to support his intention of not complying the Court direction. The, initiation of contempt proceedings
for non-compliance of an order, in our opinion, will forestall only after service of stay order on the party provided, firstly, a certain period for
compliance has been specified and within that period no contempt proceedings will lie. Secondly, when after the service of order the party has
obtained stay from the appellate forum. Thirdly, on motion by the party time is granted by the Court for execution of the order which passed the
same. No other circumstances apparently can be made available to a party against whom the order has been passed to sleep over the execution of
the order or flout its execution. 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 staved 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.
This observation will dispose the argument of Mr. Khan having submitted that no time limit is specified in the order of implementation. We,
therefore, make it clear that a party against whom 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. However, it is the
discretion of the Court finally, while holding the defaulting party guilty, to pass appropriate orders looking to the gravity of the matter and conduct
of such party, but in no case rebate of non-compliance of the Court order will be made available merely an appeal without stay is sending. We are
further supported in our view by the observations made by their Lordships of the Allahabad High Court, reported in S.P. Agarwal Vs. R.R.
Upadhya and Another, , in these words:
It is the duty of each and every person who is a party in a proceeding before a Court to comply with the orders of the Court and if he has any
grievance against the order he is free to file appeal or to make application before that Court for modification or discharge of the same, but unless
that order is stayed, varied or modified the party concerned has no justification to flout the order of the Court. Thus, a mere filing of the appeal
under Article 136 of the Constitution before the Supreme Court against any order of the High Court cannot be a justification for disobedience or
non-compliance of the orders of the High Court. Of course the position would be different if the Supreme Court takes cognizance of appeal and
passes any positive order of stay.
To the same effect are the observations made by their Lordships of Himachal Pradesh High Court, reported in 1985 Cri LJ 1030 having
observed as under (at p. 1033):
Mere preferment of an appeal does not automatically operate as a stay of the decision under appeal and till an application for stay is moved and
granted by the appellate Court, or, in the alternative, the Court which rendered the decision is moved and grants an interim stay of the decision
pending the preferment of an appeal and grant of stay by the appellate Court, the decision continues to be operative. Indeed, non-compliance with
the decision on the mere ground that an appeal is contemplated to be preferred or is actually preferred, and that, therefore, the matter is sub-
judice, may amount to contempt of Court punishable under the Contempt of Courts Act, 1971.
Above all, the Supreme Court in identical situation in Shri Baradakanta Mishra Ex-Commissioner of Endowments Vs. Shri Bhimsen Dixit, , has
laid the following rule:
A subordinate Court or Tribunal refusing to follow a High Court decision where a petition for leave to appeal to Supreme Court against that High
Court decision was pending, held amounts to deliberate disobedience and wilful disregard of the High Court and is contempt of Court.
Thus, in a situation faced, it is made abundantly clear that pendency of the appeal before the appellate Court will hot 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.
In the circumstance, reliance placed by Mr. Khan, CGA, in support of his argument on Dasarathy Banerjee Vs. Kripal Singh and Others, will
not hold good for the reason time limit having been prescribed u/s 82, CPC for execution of a decree which aspect of the matter had come under
discussion in reference to contempt proceedings within the execution period.
For the reasons given and observations made, the question framed gets settled and we hold 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.
We answer the reference, formulated in the form of question, accordingly.
The contempt petitions will come up for further orders before the Court early.
S.M. Rizvi, J.
I agree.