Vs.

Judges: A.M. AHMADI CJI, S.B. MAJMUDAR & SUJATA V. MANOHAR, JJ.

Date of Judgment: Feb 24, 1997

High Court Rules

4(a) Chapter XXV-E – Allahabad High Court – Held valid and legal and not ultra vires – Article 215 – Constitution – Rule 4(a) only entitles the chief Justice to assign the work of hearing civil contempt matters to one of the judges – Civil contempt is contempt of High Court as an institution and not of a Bench – No occasion for supposed conflict between working of the impugned rule and Article 215 – Administrative functions of High Court performed by Full Court cannot be taken over by High Court on judicial side – Held further that Division Bench considered the matter without giving opportunity of being heard to Registrar and so order is set aside as being violative of basic principles of natural justice.

At the outset it may be stated that it is indeed surprising how the Division Bench considered the merits of the question without issuing notice to the High Court on its administrative side through its Registrar for giving it an opportunity to defend this Rule as it was the author thereof. On this short ground it must be held that the impugned order is liable to be set aside as being violative of basic principles of the natural justice. But instead of resting our judgment on this short ground, we have thought it fit to decide the question of validity of the said Rule on merits as the question raises an important controversy regarding the correct procedure to be followed by the High Court while deciding applications invoking contempt jurisdiction of the High Court in connection with civil contempts of its orders and as the decision on this question will have a direct impact on large number of petitions pending in the High Court.

In the light of the aforesaid parameters of the powers of the High Courts as a superior court of record it is difficult to appreciate how the Full Court of the Allahabad High Court by framing the impugned Rule had enacted a provision which fell foul on the touchstone of Article 215 of the Constitution. High Court as an institution has the seisin of the relevant record pertaining to all the cases tried before it. Record cannot be said to be in the custody of the author of the order giving rise to contempt proceedings. The cases may be pending or might have been disposed of. Civil contempt might be alleged in connection with interim orders in pending matters and can also be alleged in connection with final orders in matters which are already disposed of. The record of such matters would be available in the High Court. All that the impugned Rule has done is to entitle the Chief Justice to assign the work of hearing civil contempt matters to one of the judges. Such an exercise, as seen above, is perfectly legal and valid in the light of the constitutional scheme. The civil contempt alleged is the contempt of the High Court as such and not the contempt of the author of the order being the judge concerned who might have passed the said order, whether interim or final. When civil contempt by way of breach of such an order is alleged it is the institution of the High Court as such which is said to have been contemptuously dealt with by the concerned contemnor.

In none of the aforesaid eventualities it can ever be suggested that hearing of civil contempt case by a Bench of the High Court other than the one which had passed the order, non-compliance of which is in issue, would at all affect the jurisdiction of the High Court as a superior court of record. Hence there would arise no occasion for the supposed conflict between the working of the impugned Rule and Article 215 of the Constitution.

Reliance placed on Order XXXIX Rule 2A of Code of Civil Procedure, 1908 (‘CPC’ for short) by the learned judges in the impugned judgment is also uncalled for. The said Rule on its express language enables the presiding judge of the Court that passed injunction order to entertain complaint regarding breach of his order. In such a case the presiding judge of the court or his successor-in-office is enabled to entertain such a complaint. The aforesaid Rule is mainly pressed in service before subordinate courts which at most of the centers consist of sole presiding judges of the courts. In such cases where the subordinate courts working at these centers consist of only one presiding judge the applications under Order XXXIX Rule 2A, CPC will have to be filed in the very same court and would go to the same judge or his successor-in-office. Such is not the case with the High Court functioning as a superior court of record under Article 215 of the Constitution of India. As noted earlier the High Court consists of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint as laid down by Article 216 of the Constitution of India. Consequently plurality of judges appointed to the High Court collectively constitute the High Court. Hence analogy of Order XXXIX Rule 2A, CPC cannot be pressed in service while judging the validity of the impugned Rule on the touchstone of Article 215 of the Constitution of India.

Such an administrative function which could be legitimately performed by the Full Court of the High Court could not be taken over by the High Court on its judicial side as it would still remain in the domain of a policy decision to be taken by the High Court on its administrative side. The learned judges in the impugned judgment appear to have felt that question of civil contempt could be better examined by the same learned judges who might have passed the order breach of which is alleged by the aggrieved party and Rules of some of the High Courts like the High Court of Andhra Pradesh might have appeared to the learned judges to be more suitable, but still the said consideration would remain in the domain of administrative policy decision of the High Court. (Para 3, 17, 20, 21 & 22)