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Ravi S. Dhavan, J.—Is the civil contempt contempt jurisdiction wrongly structured at the Allahabad High Court ? The concern of the Court is only on matters of civil contempt a opposed to criminal contempt or contempt ex facie curaei. It is logical that civil contempt arise only should there be a complaint to a Court that an order, direction or judgment, has been violated. This in itself implies that there must be a proceeding, pending or decided, to occasion a complaint on the violation of the directions of the Court, whatever they may be. At the Allahabad high Court, of late, there has been unnecessary duplication of proceedings and the statistics reveal that on the same cause of action either more than one writ petition is pending or consequently from an order or a direction in a particular petition more than one contempt application or petition may also be pending, but in another Court. Rather that explain this phenomena of a confusing situation of duplicated proceedings, the Court will report (sic) its orders in a certain writ petition. These orders were passed by this Court.
"7-9-1995
Ravi S. Dhavan, J.
A.B. Srivastava, J.
"Much too often repeated recourse to filing of cases on the same cause is causing the Court much concern as it appears to bog down the Court in the pendency of cases with duplication and even beyond triplication, and at the expense of public justice. Every day this court is coming across situation where one case has given rise to pendency two or three or more matters, on the same controversy. This is particularly so of the duplication and even beyond that which is taking place as a consequence of the mis-structure of the civil contempt jurisdiction at the Allahabad High Court. It appears, that the Allahabad High Court. It appears, that the Allahabad High Court is singular in its approach in dealing with civil contempt not with but away from the record. Insofar as civil contempt is concerned , there can be no contempt beyond the record as the Power is inherent in the High Court under Article 215 which says that Court shall be a Court of Record and shall have all the powers of such a court including the power to punish for contempt had been amended, this Court has examined the cause list stretching back to 1952, and found that at the Allahabad High Court there was no such thing as what the Registry calls ''Civil Contempt Judge''. The contempt, in reference to civil contempt, lay where the record was and it does not matter if this record was a writ petition, civil revision, first appeal, first appeal from order, second appeal, or before a Single Judge, Division Bench, or for that matter, even a Full Bench.
In the matters before the Court there are four cases. In chronology the Court will refer to them in the reverse order, i.e., one filed last. In writ Petition No. 4031 of 1994 : Ghaziabad Development Authority, Ghaziabad v. State of U. P. and Ors., when it was presented before a Hon''ble Single Judge, the issue of notice has yet to be considered. This has led the Court to consider the other matters which are already on the list on what this petition may be about. This writ petition refers to the controversies which are different then what had engaged the attention of the Court in Writ Petition No. 13270 of 1992 : Sunit Kumar Tyagi v. State of U. P. and Orsl., decided by the Hon''ble the Chief Justice Mr. M.K. Mukherj and the Hon''ble Mr. Justice Sudhir Narain, on 25 August, 1992. This writ petition gave rise to Civil Misc. Contempt Petition No. 232 of 1993 : Sunit Kumar Tyagi v. Shri Pradeep Shukla and Ors. There were three party respondents. Notice was issue to one of them and even a charge had been framed. Notices to the other two with the contempt case pending is still open but has neither been issued nor dropped. The question arises whether this contempt case would be the subject matter of consideration beyond the jurisdiction of the writ Court which rendered the judgment on the writ petition, the contempt of which is complained of ? The issue of notice in contempt proceedings gave birth to another writ petition, in Civil Misc. Writ Petition No. 29902 of 1993 : Sunil Kumar Tyagi v. State of U. P. and Anr., in which pleadings have been exchanged; the notice were issued by the Hon''ble Ravi S. Dhavan and Hon''ble R.B. Mehrotra, JJ. The record bears out that the pleadings refer to the pendency of a contempt case and of a decision of a writ petition, i.e., Writ Petition No. 13270 of 1992; decided by the Bench of Hon''ble M.L. Mukherji and Hon''ble Sudhir Narain JJ. If this is not all, as a consequence of the contempt case. Writ petition No. 4031 of 1994 : Ghaziabad Development Authority, Ghaziabad v. The Board of Revenue U. P., has been filed, notices were issued by the Hon''ble V.N. Khare and Hon''ble S.K. Jain, JJ. In this writ petition there is a reference to the decision of an earlier writ petition No. 13270 of 1992 which was decided by the Division Bench, on 25 August, 1992.
The question which occasions the Court to reflect on the situation is whether a party respondent in a writ petition could be unaware of contempt proceeding arising from the same writ petition. But, this phenomenon is taking place everyday at the Allahabad High Court only because there is aberration in the structure of the civil contempt jurisdiction that it is considered away from this record. The other matter which concerns the Court is that whereas in other High Courts a notice of motion on a civil contempt proceeding rests on the premises that the party under an admittedly received notice is before the Court by virtue of the proceedings on record, but has yet to be chased through an alien methodology and agency in yet another Court ; the Civil Contempt Court. And, be served for being brought before the Civil Contempt Judge. This inconsistency is compromising the position of the Allahabad High Court as a superior Court of Record that while the contemnor may be present before one Court, he may have to be served for service through a different conduit, and the two records are recorded and kept separate. Further, if the Court were the merits of the case is pending sends for the record which may be before the ''Civil Contempt Judge'', this may be an embarrassing situation. Otherwise, aligning the civil contempt case with the record out of which the contempt of which the contempt arises, is the normalcy of the situation. To separate the records and proceed separately is the abnormality of it. The Rules of Court, encourage the abnormality.
Thus, in this matter which faces the Court on the anomaly of the duplication and triplication of pendency of the cases before the High Court the Court must first consider which record it must see and reflect upon. Then, what is to be done with the record of the contempt case which is not before the Court.
This concern of the Court should be the concern equally of any petitioner who comes and alleges that a contempt has been committed, as also of a party or a respondent who may be under notice on an allegation to answer a contempt. In a matter of Civil contempt ought not the issues be in the forum where the record is ?
Let learned counsel, the petitioner and the respondents, State counsel not excluded, address the Court on this aspect. Notice to the Advocate General has already been issued on this very aspect, in a number of cases which were connected as bunch to the record of Writ Petition No. 23189 of 1984 : Raj Kishore Yadav v. Principal, Kendriya Vidyalaya Bamrauli and Ors. The record of these will be before the Court.
[Writ Petition No. 29902 of 1993: Sunil Kumar Tyagi v. State of U. P. and ors.].
But to be fair, it must be place on record at the outset that this Court was not the first to notice that in the management of the civil contempt cases filed at the High Court, instead of the cases following the routine or the normal course of seeing a decision, are being bogged in pendency as the main case is being braked by a contempt petition where the same parties as in the main case have to be served all over again in a contempt case. This aspect delays the main case itself, and also the contempt case by unnecessarily serving parties who are otherwise present and aware of the proceedings in one division of the court where the case is, but pretend that they have no notice in another where the contempt proceeding are pending.
Thus, five year ago, an Hon''ble Chief Justice desired that a committee examine the matter of amending the rules which manage the contempt jurisdiction of the Allahabad High Court and suggest rules, afresh, so that the jurisdiction, that is the contempt jurisdiction is made simple, more effective and prompt. The orders of the Chief Justice constituting the committee are below :
"A Committee comprising Hon''ble S.D. Agarwala, J., and Hon''ble R.S. Dhavan, J., is constituted to examine the desirability of amending the Contempt of Court Rules and suggest if so advised, the draft (new) Rules to make the jurisdiction simple, more effective and prompt.
(Underlined by Court for emphasis) Sd/- 15-8-1991 (B.P. Jeevan Reddy) C. J.
S.D. Agarwal, J.
R.S. Dhavan, J.
Submitted for kind information. Sd/- Registar 16-8-1991"
The Committee, apparently, never took off as beyond the circulation, so made by the registry, the file which constituted the committee went to sleep in the deep freeze. While the file sleeps effectively, in between one Hon''ble member left as Chief Justice to another State. The other (one of us) remains awaiting an exercise for the committee to move.
But, the issues which had caused concern to the then Chief Justice cannot be case in the dust bin, as it is the concern of the court. The judicial process is being compromised in the management of proceedings otherwise the Chief Justice would not have expressed his anxiety to re-examination the academic of, perhaps, an incorrectly structured contempt jurisdiction not in line with the constitution. The anxiety was particularly towards civil contempt. Each word of Chief Justice, Hon''ble B.P. Jeevan Reddy is pregnant with meaning. When he mentioned "to make the jurisdiction simple", it was his perception that there was confusion and duplication in the procedures which manages this jurisdiction and this eats into the courts time, expense, an power, all at the expense of public justice. The reference to making the jurisdiction more "prompt" was clearly directed in eliminating parallel proceedings of a case away from the case, a circumstance not envisioned on the style of proceedings. In a Court of Record. This alone, at present, occasions two sets of notices, summons, records, pleadings without reference to the other. Of the "more effective" aspect of it, the context was not punishment. This is not the vision of the Court in judging contempt proceedings. The reference was to ensure due compliance with the order of the Court without going into the contempt part of it. If an act or a circumstances warrants that litigating parties keep to law and the rule of law, then the erring one must be told of it in the proceeding itself. This is the ''simple'', ''effective'' and the ''prompt'' part of it. But to structure a proceeding away from the proceeding is the negation of all three.
However, the then Chief Justice , the Hon''ble B.P. Jeevan Reddy, had an occasion to discuss this matter with concern with his court on the point that the civil contempt jurisdiction must be brought so as to be consistent with the constitution of India without loosing the perspective that it is a contempt proceeding within a Court of Record. He gave his experiences and guidance which are very valuable. Thus, he constituted a committee. Of whatever is left of the committee one of us (Hon''ble Ravi S. Dhavan, J.) can recall the guidance and the discussion. The then Hon''ble Chief Justice mentioned that he was surprised that at the Allahabad High Court he finds that in a proceeding after notice has been issued on an application for contempt, civil contempt that is to say, then the proceeding itself out of which the contempt arises (if it be a writ petition) is pending before one division of the Court and the contempt application before another division. While all the respondent in a writ petition in which a contempt proceeding is also pending are before the Court and have filed their counter affidavit, simultaneously, in another Court where the contempt case is pending, the same respondents are being served with a long drawn procedure of issue of notice to be served or those very respondents, but now through the Chief Judicial Magistrate of the concerned District and through the agency of the police. The Chief Justice found this an anomalous position and recalled that at the Andhra Pradesh High Court, this confusion, duplication and anamoly is not there, because a complaint for contempt for the violation of an order or a direction or Judgment is heard by the Court which passed the order, direction or judgment, be it a division constituted by a Hon''ble Judge or two Hon''ble Judges. In the case itself should an allegation of a violation of an order or direction be made, the party in misdemeanour is questioned and more often than not, the aberration is rectified rending of a formal complaint of contempt unnecessary. But, this can happen only if the proceedings in civil contempt are understood to be where the case is. Thus, the Chief Justice had directed the Registrar of the Allahabad High Court to send for the rules relation to the management of the contempt jurisdiction by the other High Courts. These rules are available having been sent at the request of the Chief Justice of the Allahabad High Court to other High Courts. The material as received is a matter of record. The comparison between the structure of the contempt jurisdiction in the other High Courts and the Allahabad High Court is radically different as appointed out by then Hon''ble Chief Justice, and is otherwise also a matter of record.
The basic fault, apparently, lay when rules were being attempted to be, drafted by the registry as inevitably they had to be after the Contempt of Courts Act, 1971 replaced the contempt of Courts Act, 1952
The Court sent for the file which contains the exercise on the drafting of the rules. This is File No. VIIIC-167. If this file is seen in isolation, then, there is nothing wrong or misplaced in the structure of the civil contempt jurisdiction. But, now that the then Chief Justice (the Hon''ble B.P. Jeevan Reddy, as he then was) drew the attention of the Court that the rules need to be looked at again and the past experience of the Court of the duplication and the triplication of proceedings, the defect is so clear to the naked eye and more so when the Rules of other High Courts are seen in comparison. The entire exercise to draft the rules took place at the registry only because Section 23 of the Contempt of courts Act 1971 required that rules had to be framed. The Allahabad High Court, thus, was obliged to frame the rules and it did. But the entire reading of this file reveals that when the exercise to make the draft rules was on, and apparently, the drafts were being made as a scissor and paste affair, it was forgotten that what was important and relevant was not so much that rules for procedure of managing the contempt jurisdiction had to formulated but the fact that this procedure was being made as standardized measure in a Court of Record and that also a Superior Court of Record. There is no whisper in this file that the exercise initiated by the registry in framing the draft rules has kept in mind at every given time that but for the Article 215 had been lost completely. Reference to this all important Article of the Constitution, is not ever there in the entire file. The rules were drafted but with a lost perspective of a High Court and a High court as a Court of Record. Unlike rules on this subject of other High court, even in the recital of the rules as were published and are contained as Chapter XXXV-E to the Allahabad High Court Rules, 1952, the chapter having been inserted in 1977, [Added by the Noti. No. 6/VIII-167, dated 24-11-1976, published in U.P. Gazette Part II, dated 12-2-1977], there is no reference that the rules were being enacted in pursuance of the Article 215 and Article 225B of the Constitution of India and framed u/s 23 of the Contempt of Courts Act, 1971. Article 225 permits the High Court to frame rules within certain constraints. Article 215 is the concept, under the context and the subject of which the rules were to be framed. It is one of the shortest Articles of the constitution of India. It reads :
"215. High Court to be courts of record.-Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."
The Contempt of Courts Act, 1971, has not sanctioned nor conferred the jurisdiction of the subject ''contempt on the High Court. This jurisdiction has been ordained by the Constitution of India and was always there inherently in this High Court. This jurisdiction has been ordained by the Constitution of India and was always there inherently in this High court when it was established by the Royal Charter and its attribute as a Court of Record continues prior to the Constitution of India under the Government of India Act, 1935 and beyond. On further history of it, in special reference to the Allahabad High Court has been traced by the Special Bench of three Hon''ble Justices in Walsh, sulaiman and Boys, JJ. Hadi Husain and Others Vs. Nasir Uddin Haider and Another , In re. Hadi Husain v. Nasir Uddin, (SB). Today, the jurisdiction in the High Courts to judge contempt has been specially vested by the constitution of India, as distinguished from courts given this jurisdiction by the legislature. This attribute is the same for all the High Courts and the Allahabad High Court, in this regard, is not an exception.
The basic characteristic of a Court of Record is that each constituent of the Court, that is, each division of the Court, speaks for the Court. Each division of the court is the High court. The records for posterity. This power ''to punish for contempt of itself'' is inherent in a Court of Record.
Even if the High Court was not a Court of Record, the learned Advocate General, U. P., pointed out that in the matter relating to the violation an injunction as referred to in the code of Civil Procedure, 1908, the consequences of disobedience and breach of an injunction are prescribed. He mentioned that Rule 2-A of Order XXXIX of the Code, aforesaid, enjoins that when a breach of an order or an injunction is complained of, then the proceedings shall lie "to the Court granting the injunction or making the order" [see, Rule 2-A Consequences of disobedience of injunction]. If this were not so, learned Advocate General submitted there would be confusion confounded, with a suit pending before one Court for trial, but the breach of an injunction before another Court. The law, he submitted did not provide for this. What he meant to tell the Court was that the law was not tailored that way in reference to the trial of a civil contempt.
In this aspect of whether the civil contempt jurisdiction at the Allahabad High Court is misplaced or not, the Court had given notice to the Advocate General, U. P., on 1-12-1993, in Writ petition No. 23189 of 1989, and learned Advocate General responded by intimating the Court that he would like to submit and he submitted that the matter indeed needs an examination and that he was of the view, also, that the civil contempt jurisdiction at the Allahabad High Court needs to be realigned and co-ordinated with the record. He emphasized the article the for record to elaborate that with the power inherent, the trial of a civil contempt arising out of proceedings in a court of Record, the trial would be in the Court where the record lay.
A caution which has been expressed by the supreme Court in the matter of trial of civil contempt cases would be ignored by default unless its import is understood. In the matter of State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Others, , the supreme Court held, in effect, that the defence which is to be judged in a contempt case will see a change when a return is filed to the main case itself. Thus, of any proceeding which may be initiated on an ad interim order or injunction, whether contempt has or has not been committed, must be seen in the changed circumstances after the main case has been replied to by the respondents by a counter affidavit or otherwise. What the Supreme court was advising as a caution was that judging the violation of an order in isolation from the main case would be premature and may lead to injustice. But such as a situation will happen all the more t the Allahabad High Court if an injunction was passed by one Court and a complaint that it was being violated is being tried by another Court in absence of the record of the main case. In a court of Record nothing can be tried without the record and the trial and the proceedings, whatever their nature, by the inherent nature of the structure of the High court is to be before the Court where the record is.
In this regard, the two Chief Standing Counsel of the State of Uttar Pradesh and the Union of India gave their experiences. In generality they submitted that while they defend officials of the concerned Government, they feel that the defence could be better understood when explaining the alleged violation of an ad interim order, after the counter affidavit (as a reply or return) to the main case was referred to in the context of explaining a contemptuous situation also. They referred to the supreme Court case in the matter of State of Jammu and Kashmir v. Mohd. Yukub Khan (supra). They also mentioned that there was unnecessary duplication of proceedings arising out of the same record, in every aspect whether the registration of a separate case, separate notices and summons, overlapping or repeated pleadings in to so forums, including two orders with possibility of reflection on merits in a contempt matter when the merits were in another Court. All this, they submitted could be and ought to be avoided.
In so far as the civil contempt jurisdiction at a High Court is concerned, it can be bifurcated in two parts. One may be on a proceeding which may be initiated on a complaint made by the Court below or of a contempt which may have been occasioned arising out an order of the court below and the information of it is brought to the notice of the High court. The other, also proceeding for civil contempt, but on an allegation of a breach of an order, direction or judgment of the High Court itself. This court is concerned with the trial of cases which deal with civil contempt on allegations of violation of an order, direction or judgment of the High Court itself. In comparison, if the rules of the other High courts were to be noticed a very different picture emerges in the matter relation to the management of cases for civil contempt of the High Court.
By far one of the most composite rules are of the Andhra Pradesh High Court. Rule 12 of the Andhra Pradesh High Court Prescribes that for "Every case of civil contempt of the High Court shall be posted before the Judge or Judges in respect of whose judgment, decree, direction, order, writ or other process the contempt is alleged or before whom the undertaking was given in respect of which willful breach was committed...........................................".
At the Calcutta High Court, Rule 15 provides for the management of a case of civil contempt. At the Calcutta High Court. This rule says," All petitions in connection with a civil contempt grounded on willful disobedience to a judgment, decree, direction, order or other process of a court or willful breach of an undertaking given to a court shall be heard by the Judge or Judges who passed the judgment or the decree or gave the direction or the order or issued the writ or other process or before whom the undertaking was given." At the Madras High Court, Rule 6(2) lays down that a case on a motion for civil contempt "Every such application shall be posted before the Judge or Judges in respect of whose Judgment, Decree, Direction, Order, Writ or other Process the contempt is alleged." At the Rajasthan High Court, in the matter relation to the disobedience of judicial order of the High Court, the Bench concerned considers the breach or the violation of the order or the direction. This is Sub-rule (2) of Rule 32 of the Rajasthan High Court rules.
At present we are not concerned with the question of non-availability of an Hon''ble Judge or for that matter, the judge or the judges, as the case may be, is or are of the opinion that they would not like to do the case in a given situation connected with the case.
In so far as a reference is made of a contempt by a subordinate court, this matter is not in issues, as in the context of this, the rules of the other High Courts provide that the matter is dealt with first on the administrative side to be placed before the Hon''ble Judge, incharge of the District or the Administrative Judge and then before the Hon''ble Chief Justice for assignment to a Court. In our Court, that is , the Allahabad High Court, at the time when the draft rules were being formulated an Hon''ble Chief Justice recorded that the rules be amended so that motions on petitions of such nature, that is of cases transferred from the subordinate courts to the High Court may not be presented before the Chief Justice and the registry should propose an amendment in this context. The Hon''ble the Chief Justice suggested that "the amended rule may provide that such petitions being filed in the registry should propose an amendment in this context. The Hon''ble the Chief Justice suggested that "the amended rule may provide that such petitions being filed in the registry and being listed directly before the appropriate Bench." [The Hon''ble D.M. Chandrashekhar, Chief Justice'' order dated 19 August 1977]. This direction or suggestion of the Chief Justice was logical as for cases of civil contempt by reference of the subordinate courts or transferred by a direction, would logically need a judge. Thus, a civil contempt jurisdiction for this purpose only was vested in a division presided over by a learned single Judge. But, this may yet be another matter to be looked into again, as recently, the administrative set-up qua the subordinate courts has seen a change at the High Court with Administrative Judges being replaced by a new system of Inspection Judges.''
The matter under examination is of cases arising, in the context, of civil contempt on a complaint of a breach of an order or direction of the High Court itself. This aspect cannot be looked at by overlooking Articles 215 of the Constitution of India, and the concept of the High Court as an institution, conveyed by this Article. It is inherent in a Court of Record that a contempt, on an allegation that an order, direction or a judgment of the High Court has been breached, that is, civil contempt would inevitably, logically and inherently would be placed for trial before the Court which has passed the order, direction or the judgment. In any other division of the Court the jurisdiction would be misplaced.
As introspection is healthy for any institution in the management of its related affairs, the Allahabad High Court cannot be an exception this rule. In the context directly related with this mater, the Chief Justice, Hon''ble Mr. B.P. Jeevan Reddy, desired that the matter be examined dialectically. The subject became important when the formality of an examination of a misplaced civil contempt jurisdiction was to be seen thread bare but the exercise did not proceed. The experience also has shown that the misplacement of the civil contempt jurisdiction has added to the arrears of dockets of the High Court. The statistics before the Court reveal that particularly in some jurisdictions (Education for instance), the details are not being given in this order, it is a common feature that an order of the High Court, as a generality, whether at the ad interim stage or as an absolute rule, has seen a parallel contempt proceeding and yet between the same parties another writ petition and yet another contempt proceeding. And this exercise has been repeated repeatedly. The court has already noticed in this order that cases which languish are violable as record that creating a case is a phenomenas with the litigant and it does not mater whether it is the same case brought twice or related contempt proceeding thrice. This is the situation which has to be remedied. Further, the comparison with other High Courts cannot be overlooked. Docket and cases must move at the High Court and must not be anchored like germs to a decease. A comparison of how the other High Courts manage the civil contempt jurisdiction only assures that the principle of a trial of a contempt being part of the main case is the necessary corollary. To separate the proceedings is the contradiction. Whether it be the views of an Hon''ble Chief Justice or of the rules as have been framed by the other High Courts, these are pervasive examples that the Allahabad High Court needs to set its house in order in re. Locationg the civil contempt jurisdiction, correctly. To put it in the words of an Hon''ble Chief Justice concerned so as "to make the jurisdiction simple, more effective and prompt".
The concept of a Court of Record does not vary and is the same wherever common law applies. Fortunately for the High Courts in India the Constitution has sanctioned it and, thus, the High court as a Court of Record has its sanctity. In furtherance of the theory or the examination of it logically, in the context of the matter, that civil contempt jurisdiction finds the same Court which gave an order, direction or the judgment, is universal to other Courts of other nations where common law applies.
In this regard, it must be kept in mind that the High court as a Superior Court of Record comes with the presumption of jurisdiction as opposed to inferior courts which are not. The High Court is not a Court of limited jurisdiction. In this regard, observations in the American Jurisprudence as commentary is relevant :
"27. Constitutional courts.
Generally, courts specifically created by a constitution as distinguished from courts created by the legislature without specific constitutional provision for their establishment, are classified as constitutional courts. The Federal constitution and a number of state contain specific provisions for the establishment of certain courts, though the king of court or courts thus specifically provided for is not the same in each constitution. Thus in some states the constitution provides for the establishment of a court in the nature of a probate court, whereas in other jurisdictions such courts are not provided for by the constitution, but are creatures of the legislature. Generally the legislature has no power to impair the essential nature of jurisdiction of any of the constitutional courts, a constitutional court is not subject to legislative control, and generally a created by the constitution cannot be abolished by legislative act.
Superior and inferior Courts.
The distinction between superior and inferior courts is not always based on the same criterion, but is a classification of flexible character. Through most of the cases applying this distinction there runs the proposition that the proceedings of a superior court are endowed with the presumption of jurisdiction, where as those of an inferior courts are not. Especially insofar as this jurisdictional presumption is concerned, but sometimes in other respects also, the distinction between superior and inferior courts is treated as tantamount to the classification of courts as of general and limited jurisdiction, a classification which is covered in a later part of this article." [Volume 20 page 407-408.
On the same subject of Courts of record and courts not of record, in Halsbury, the comment is :
"709. Courts of record. Another manner of division is into courts of record and courts not of record. Certain courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences, if it has such power, it seems that it is a court of record." Halsbury''s Laws of England, Fourth Edition, Volume 10, p. 319, para 709].
Now coming to the aspect of the matter under examination. Prescribing for contempt proceedings, that is civil contempt, the generality is that the Court against which contempt is committed, that the Court having jurisdiction shall try the contempt, is a universally accepted rule of prudence and recognised so by law. The other High Courts in India follow such a rule. In fact, on this there is universal acceptability and common approach in authoritative texts that one Court is not authorised to punish for contempt of another Court. In reference to co-ordination of a civil contempt being aligned with the Court where the matter itself, that is, where the lis is pending, certain observations as a commentary in American Jurisprudence as below are relevant :
"84. Generally : Authority of one court to conduct hearing on alleged contempt of another.
Under the view that the power to punish for contempt exists merely for the purpose of enabling a court to compel due decorum and respect its presence and one obedience to its judgments, orders, and process, it is sometimes said that one Court is not authorized to punish contempts against another court unless the latter is an agency or part of the punishing court. And at. least with respect to direct contempts, it has been said that existence of the power of courts to punish a complete new trial on the facts by another court is essential to the performance of the functions of the courts, to the maintenance of their authority, and to their capacity to determine the rights of the parties according to law. The general rule that the court against which a contempt is committed is the court having jurisdiction to try the contempt has been said not to be changed by the fact that the contempt also constitutes a libel upon the judge." [Volume 17, Page 14].
To place a civil contempt jurisdiction accurately and correctly, the meaning of ''civil contempt'' itself needs to be understood. First, the expression "civil contempt" is defined in the Contempt of Courts Act, 1971. The definition says, "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a court [See Section 2(b)] willful disobedience to a writ issued by the court constitutes civil contempt. {Sabastian M. Hongray v. Union of India, AIR 1984 SC 1026]. A civil contempt, on the other hand, is a failure to obey a court''s order issued for the benefit of the opposite party, and the principal object of a civil contempt is to secure the enforcement of the order. The State Vs. Dasrath Jha, . Contempts have been divided broadly into two classes according to the purpose which is subserved by the proceeding. Contempt which is punished for disobedience of an order of the Court with a view to enforcing the rights of private parties is distinguished from contempt which is punished for vindicating the dignity of the Court. The latter is regarded as criminal and punitive while the former is regarded as civil and remedial. [Zikar v. State AIR 1952 Nagpur 130]. In reference to civil contempt, on an order given by a Court and the breach of it, regarding the jurisdiction to trial, Corpus Juris Secondum comments :
"The court which renders the order commanding the doing of a certain act by a person or a public body is along vested with the right to determine, on a rule for contempt for failure to comply with the order, whether the order has been complied with or a sufficient reason given for failure to comply therewith." [See, Corpns Juris Sehondum, Vol. 17 Page (167).
On the meaning of civil contempt its reflection in a case by the U. S. Supreme Court is relevant:
"There is another important difference. Proceedings for civil contempt are between the original parties, and are instituted and tried as a part of the main cause. But, on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part, of the original cause." [See, USSCR 65 L Ed. Page 797 (803)].
Where would a case where the cause of violation of an injunction is being debated lie ? This would be civil contempt. Directly on this the U. S. Supreme Court has commented :
"1. The court by which a permanent......injunction has been granted retains jurisdiction of the person against whom it was issued so that service of process upon him is not prerequisite to a civil contempt proceeding for its violation, appropriate notice of the proceeding being all that is required.
X X X X X As the proceeding for civil contempt for violation of the injunction should be treated as part of the main cause, it follows that service of process for the purpose of bringing the respondent within the jurisdiction of the District Court of Massachusetts was not necessary." [See, USSCR 76 L. Ed. 389, 390, 396].
The annotation in the case is equally important.
"In the reported case Leman v. Keentleranold Hinge Last Co. it was held that the court by which a permanent injunction in a patent infringement suit had been granted retained jurisdiction of the person against whom it was issued, for the purposes of civil contempt proceedings for the violation of such injunction, and that service of process for the purpose of bringing the party to the injunction within the jurisdiction of the district court which had issued it was not necessary, as the district court had jurisdiction of the parties to the equity suit in which the contempt proceedings were filed, which proceedings should be treated as part of the main cause, so that appropriate notice of the contempt proceeding was all that was required.
In several cases it has been held that the court granting the injunction retained jurisdiction of the cause for the purposes of the contempt proceedings. Thus in Seaboard Air Lines R. Co. v. Tampa Southern R. Co., (1931) Fla. 134 So 529, the court stated in the official syllabus that when an injunctive order issued pendente lite had been disregarded by a defendant or other party it was the duty of the court to retain jurisdiction of the cause for the purpose of vindicating the courts of Florida with respect to their lawful orders, and to punish for a violation of the same, even though the bill of complaint or suit was dismissed and a final decree rendered in favour of the defendant or other party.
It was held in State ex. Rev. Morgan v. Voorhies, (1898) 50 La Ann. 807, 24 So. 276, that the authority of a judge ad hoc over the judgment which he has rendered does not end with his signature to it, but that so long as he has not resigned, or vacated the position in some legal way, and the case is before the court which made the appointment, he retains control over it and the cause in a limited sense may be Considered terminated, but for many purposes it remains a pending suit until finally disposed of, so that he is the proper person to take cognizance of an application to have a defendant, who has been perpetually enjoined, held in contempt and punished for a violation of such injunction." [See USSCR 76 L. Ed. 390]. .....
Clearly, what is to be examined is whether the relevant Rules of Court in structuring the civil contempt jurisdiction of the Allahabad High Court, are compatible with (a) the contempt of a Court of Record and (b) the High Court being a Court of Record as projected in Article 215 of the Constitution of India. At the Allahabad High Court it is not. In India, the general principle of a Court on record is contained in the precise thesis which is Article 215 of the Constitution. To align a proceeding away from a Record of Court, is the anti-thesis. The other High Court in India, the Rules of which are noticed follow the thesis and the concept in its pureness. In this regard, the Allahabad High Court does not Rule 4 of the Court if placed along with Rules on the same subject of other High Courts would show the disharmony and conflict with Article 215 of the Constitution of India.
The Rules at the Allahabad High Court dislocate the civil contempt jurisdiction, inconsistent with the understood concept of a Court of Record. This has resulted in adding arrears to the already pending cases. Of every contempt case, civil contempt two proceedings are born. The main case and the contempt case. Each is registered separately. It is monitored separately right from notice to Judge. The records of the two cases are strangers to each other. This is not all. On record there are several instances of more than one contempt case and more than one case itself (out of which the contempt arises) pending, on the same subject-matter, between the same parties, statistics reveal that on the same controversy, counsel intimated the Court, of there existing three, four, five or even six cases, between the case and contempt proceedings. In a Court of record this is not meant to happen. This had caused concern to Chief Justice, Hon''ble B. P. Jeevan Reddy, as he then was.
In the circumstances. Rule 4 (a) is repugnant to the Constitution of India to the extent that it places a case of civil contempt before a Bench or a division of a Court which may not have passed the order direction or judgment. A matter of civil contempt may be placed before a learned judge, but this would be a jurisdiction so nominated by the Hon''ble the Chief Justice, of cases referred by the subordinate courts to the High Court, But of contempt, that is, civil contempt alleged for the violation of an order, direction of judgment of the High Court, as a Court of Record, the only Court would be the Court which passed such an order, direction or judgment and no other.
Consequentially and for the reasons given in this order Sub-clause (a) of Rule 4 of Chapter XXXV-E of the Rules framed u/s 23 of the Contempt of Courts Act, 1971, and appended to the Allahabad High Court Rules, for the presentation and hearing of civil contempt case, in so far as they relate to the examination and allegation of a civil contempt on the breach or violation of an order, direction or judgment of a Bench of the High Court, but misplaces the case before a Court which may not have passed the order, direction or judgment render this particular Rule in consistant in its concept to a Court of Record and specifically ultra vires to Article 215 of the Constitution of India. This rule as is contained in Sub-clause (a) of Clause 4, to Chapter XXXV-E is struck off accordingly.
A. B. Srivastava, J.-
I have had the benefit of going through the opinion prepared by Hon''ble Ravi S. Dhavan, J., in reference to structure of the civil contempt jurisdiction at the Allahabad High Court, in the matter relating to the disobedience of judicial order of this Court. I am in full agreement with the views of incorporated so lucidly, in his opinion by my esteemed brother.
Having had the advantages of considering the valuable arguments advanced on the various aspects of the matter by a gallery of advocates of this Court, led by the learned Advocate General, U. P., and going through the record relating to the process of framing of these rules as also the rules in this regard framed by the various High Courts, a conclusion is inescapable that while framing the impugned Rules, the High Court lost track of concept that, contempt jurisdiction of the High Court flows from Article 215 of the Constitution of India, besides the fact of the High Court being a superior court of record, and not by any legislative provisions of the Contempt of Courts Act, 1971. It will be aberration to alienate the civil contempt jurisdiction from the bench or the Court which had passed the judgment, decree, direction, writ or other process, disobedience of which has given rise to the action in contempt.
A random of survey of the record of the High Court of the various Courts in Division, the cause lists of High Court of Judicature at Allahabad of the years 1966, 1969, 1972 and 1973 does not show in the roster any Court as Civil Contempt Judge.
My own experience in this regard, having been entrusted with classification of cases and bunches, for the past three years, two stints in the civil contempt jurisdiction, during my short tenure, has confirmed that, the system given besides being violative of the concept of contempt of a court of record, and militating against the principles laid down by the Apex Court in the State of Jammu & Kashmir Vs. Mohd. Yaqoob Khan and Others, , has quite often also led to duplication and triplication of proceedings. There are instances of a writ petition being followed by a Civil Misc. Contempt Application, and the same being ineffective, to be followed by another writ petition, and yet another civil contempt application under the impugned Rules, or Article 215 of the Constitution.
This is because the Rules aforesaid create a separate civil contempt jurisdiction, divorced of Court seized of the matter. These Rules thus besides frustrating the very object of ensuring compliance of the judgment, order or writ of the Court, have contributed towards increasing by thousands, the pendency of cases in this High Court reeling under staggering arrears. The concerned Rule contained in Sub-clause (a) of Rule 4 of Chapter XXXV-E of the Rules of Court, thus being ultra vires of Article 215 of the Constitution, and inconsistent with the contempt of Court of Record, is unsustainable.
From amongst the rules of various High Courts before us, those framed by Andhra Pradesh High Court appear to be the best , and may probably form the nucleus for the rules to be framed in this regard.
Consequently for these above reasons, the Rule 4 (a) contained in Chapter XXXV-E of the Rules of Court deserves to be, and is hereby, quashed.