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SRI ANWARUL HASAN & OTHERS versus ASHWANI KUMAR SRIVASTAVA

High Court of Judicature at Allahabad

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Sri Anwarul Hasan & Others v. Ashwani Kumar Srivastava - SPECIAL APPEAL DEFECTIVE No. 429 of 1997 [2006] RD-AH 6498 (23 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No.429 of 1997 (Defective)

Sri Anwarul Hasan & others vs. Ashwani Kumar Srivastava

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This appeal, under Chapter VIII Rule 5 of the Rules of the Court, is preferred against the judgment of the Hon'ble Single Judge dated 31.7.1997 in Contempt Application No.440 of 1986 whereby the Hon'ble Single Judge while dismissing Contempt Application and discharging the contemnors from the rule issued observed that the respondent-appellant shall not be permitted to raise the question of limitation in filing execution application, if any, before the concerned court.

Learned counsel for the appellant submitted that he is not assailing the entire order passed by the Hon'ble Single Judge dismissing Contempt Petition No.440 of 1986 but he is aggrieved against the following direction issued by the Hon'ble Single Judge dismissing the contempt petition: -

"It may be made clear that the respondents shall not be permitted to raise the question of limitation in filing of the execution application, if any, before the concerned court."

He submits that an appeal dismissing contempt petition does not lie under Chapter VIII Rule 5 of the Rules of the Court but where the Hon'ble Single Judge has passed some order or made observation beyond the contempt jurisdiction, which falls in the realm of the authority of the Court beyond the contempt jurisdiction, to such extent and against such direction special appeal under Chapter VIII Rule 5 would be maintainable.  He further submits that it was not open to the Hon'ble Single Judge to prevent the parties from raising the statutory defence available to them with respect to limitation particularly when the New India Assurance Co. Ltd. itself was not a party before the Hon'ble Single Judge and the judgment in Original Suit No.668 of 1978 was between the New India Assurance Co. Ltd. and its employee.  He also submitted that in the absence of the company having been arrayed as respondent in the contempt no.440 of 1986 it was not permissible for the Hon'ble Single Judge to pass the order as quoted above and to that extent the order under appeal is vitiated in law.

Having considered the submission advanced on behalf of appellant, we find sufficient force therein.  This Court in the case of A.P. Verma, Principal Secretary, Medical Health and Family Welfare, U.P. Lucknow and others vs. U.P. Laboratory Technicians Association, Lucknow and others, 1998 (3) UPLBEC 2333 held that in respect of orders passed by the Hon'ble Single Judge dismissing the contempt petition, no appeal under Chapter VIII Rule 5 of the Rules of the Court would be maintainable.  However, if the contempt court issues certain further directions to the parties, such directions would amount to orders issued by the Hon'ble Single Judge other than those covered under the Contempt of Courts Act and to that extent, special appeal under Chapter VIII Rule 5 of the Rules of the Court may be maintainable, since that would be regarding the merit of the claim made in the writ petition.  The relevant observation contained in para 8 of the aforesaid judgment is reproduced as under: -

"Under the impugned order, learned Single Judge has recorded a clear finding that the directions issued in the writ petition had not been complied with but he did not want to punish the appellants at this stage.  He has issued a further direction to the appellants to comply with the order passed in the writ petition in its letter and spirit.  In view of what we have held above, this appeal is maintainable under Section 19 of the Act against the finding regarding non-compliance of the order which amounts to a ''civil contempt' within the meaning of Section 2(a) of the Act.  The appeal will also be maintainable under Chapter VIII, Rule 5 of the Rules of the Court against the directions issued in the impugned order which are regarding the merit of the claim made by the respondents in the writ petition." (para 8)

The aforesaid judgment has been followed by another Division Bench in Special Appeal No.1423 of 2005, Chandra Shekhar vs. Sri J.P. Rajpoot & others decided on 2.12.2005.

In the circumstances, the special appeal is maintainable with respect to the direction issued by the Hon'ble Single Judge whereagainst present appeal has been preferred.

Now coming to the merits of the issue we are of the view that there was no occasion for the Hon'ble Single Judge to pass such direction in the contempt proceeding.  The period of limitation for filing execution proceeding is already prescribed in the statute and this Court by such observation or direction cannot restrict or extend the same.  Thus, the Hon'ble Single Judge fell in error by providing that the respondent shall not be permitted to raise the question of limitation for filing execution proceeding.  Besides that the corporation was not a party in the contempt and such execution petition could have been filed against the corporation and in their absence such order cannot sustain.  Whether a proceeding has been initiated within time or when such proceedings are initiated beyond the period of limitation prescribed in the statute, whether the delay in initiation of such proceeding is to be condoned is a matter to be considered by the Court where such proceedings are initiated in accordance with the provisions of the statute.  The objection or defence available otherwise in law cannot be deprived by the Court to either of the parties since such direction, in our view, would be unjust, unwarranted and beyond jurisdiction.

Considering the aforesaid aspect of the matter, we are of the view that there was no occasion for the Hon'ble Single Judge to pass such direction in the contempt petition.  We, therefore, allow this special appeal and set aside the part of the judgment quoted above whereagainst the appellant has preferred and pressed this special appeal.

The special appeal, therefore, succeeds to the extent stated above without any order as to costs.

23.3.2006

A.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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