R. K. Arora General Manager & Anr. v. M/S Ace Enterprises

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. S o in the interests of justice the application in hand is allowed and the proceedings before the arbitration with regard to m atter titled M/s ACE Enterprises Vs. Union of India and ors is sta yed till the objections from the other side is filed. Put up t his file on 26-07-11.” 3. Alleging violation of the above order, an application was filed for initiating contempt proceedings. The prayer reads as follows :- “It is therefore prayed that the contempt proceedin gs 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 mentio ning 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 493 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 th e Arbitrator, is based on the understanding of the Ar bitrator and the learned counsel for the defendants as to the cor rect 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 t he court dated 22-06-2011. The arbitration proceedings is a n independent and statutory remedy available under th e provisions of Jammu and Kashmir Arbitration Act, 2002. The provisions of said Act have overriding effect over the ge neral 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 suc h 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 de fendant in the court or before the Arbitrator, and proceedings initiate d by any party in exercise of statutory right, cannot be construed as flouting of the order of the civil court or wil lful or deliberate violation of the order, unless the vi olation 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 circumsta nces pertaining to the case, I find no flouting or violatio n 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 cont empt of court. Accordingly, the contempt proceedings are d ropped against the said named persons. Application is dis missed. Record of application be made part of suit file on completion.” R. K. ARORA GENERAL MANAGER v. M/S ACE ENTERPRISES [KURIAN, J.] 5. That order was challenged by the respondent before the High Court. The High Court has considered the matter in ex tenso. At paragraphs 11, 13 and 17, the High Court has entered its finding s as follows :- “11. Admittedly, the impugned order has been passed by the learned Sub-Judge in a contempt petition filed by t he petitioner. The Jammu and Kashmir Contempt of Courts Act, 1997 (Act No. XXV of 1997) (for short, Contempt of C ourts Act) was enacted to define and limit the power of certain court s in punishing contempt of courts and to regulate the ir procedure in relation thereto. There is no provision in this Act to empower a subordinate court to punish contem pt of itself. However, Section 10 of the Contempt of Cou rts Act vests with the High Court the power to punish contem pts of subordinate courts. It says that the High Court sh all have and exercise the same jurisdiction, powers and authori ty in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exerci ses in respect of contempts of itself; provided that the Hig h Court shall not take congnizance of a contempt alleged to have been committed in respect of a court subordinate to it where suc h 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 t he 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 tr ial of an application for contempt and taking a decision thereon is fa r remote. 13. Since the subordinate courts do not have the jurisdiction to take cognizance of contempt of itself, or initiate procee dings 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 jurisdi ction, not vested in it under law. 495 17. During the course of arguments of this case, the le arned counsel for the petitioner brought it to the notice of the C ourt that the Arbitrator appointed in violation of the a d-interim orders of the trial court has ultimately concluded the proceedings and passed the final award against the interes ts of the petitioner. Pending decision in the contempt petition in terms of applicable laws, there shall be stay of fin al 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 tri al 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 proc eedings pursuant to the impugned order.” 7. Having heard Mr. Tushar Mehta, learned Additional Solicitor General, and Mr. Abdul Rehman, representing the res pondent 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 Orde r 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 clari fied 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. R. K. ARORA GENERAL MANAGER v. M/S ACE ENTERPRISES [KURIAN, J.] ii) The trial court shall first see whether there is any disobedience of the order of injunction and in case the court enters a f inding of disobedience, the rest under Order XXXIX Rule 2A alone shall follow. 8. The submission made by the appellants regarding separat e contracts and pending application under Section 8 of the Jamm u and Kashmir Arbitration Act etc. are open to the appellants to canvas before the trial court at the appropriate stage. It will als o 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. Nidhi Jain Appeal disposed of.