Special Appeal was dismissed as maintainable for failure to satisfy the requirements laid down in Midnapore case. The order requiring personal appearance did not decide merits of the custody dispute nor impose punishment for contempt.
Special Appeal No. 486 of 2022 dismissed as not maintainable.
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Court No. - 2
Case :- SPECIAL APPEAL No. - 486 of 2022
Appellant :- Dipti Goel (Agarwal) Respondent :- Dr. Dinesh Kumar Agarwal Counsel for Appellant :- Sushil Kumar Singh Counsel for Respondent :- Ashok Kumar Singh
Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.
Heard Sri Sushil Kumar Singh, learned counsel for appellant and Sri Prashant Chandra, learned Senior Advocate assisted by Ms. Neha Rashmi and Ms. Richa Misra for the respondent.
These proceedings under Chapter VIII Rule 5 of the Rules of the Court have been instituted laying a challenge to the order dated 05.12.2022 passed by learned Contempt Judge in Contempt Application (Civil) No.1214 of 2022 filed by the respondent alleging contempt of an order dated 06.01.2022 passed in Writ Petition No.9307 (H/C) of 2020.
By the order under question before us, learned Contempt Judge has only required the appellant who is respondent in the contempt petition to be present before the Court along with the child in respect of whose custody there appears to be a dispute between the parties.
The law relating to maintainability of an intra-court appeal against the orders passed by learned Contempt Judge in exercise of his contempt jurisdiction under Contempt of Courts Act is no more res integra which stands settled by Hon'ble Supreme Court in the case of Midnapore Peoples' Cooperative Bank Ltd and others vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399 . Hon'ble Supreme Court in para 11 of the report of the said judgment has summarized the entire law in respect of intra-court appeals against the orders passed by the
Contempt Judge. Para 11 of the said judgment is extracted hereinbelow:-
"11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)".
Conclusion (V) in para 11 of Midnapore's case as extracted above, lays down that in case the court decides an issue relating to the merits of the dispute between the parties in contempt proceedings, and if any person is aggrieved by the said order, it will be open to challenge the said order in an intra-court appeal if such order is appelable before the Division Bench in terms of the relevant provision applicable. Hon'ble Supreme Court has further observed that remedy of such intra court appeal will be available in another situation where learned Contempt Judge while exercising his contempt jurisdiction issues any direction relating to merit of the dispute between the parties.
Accordingly, except in a situation as set out in a conclusion (V) of Para 11 of the judgment in the case of Midnapore , no special appeal would be maintainable under Chapter VIII Rule 5 of the Rules of the Court against an order passed by learned Contempt Judge.
When we examine the order dated 05.12.2022 passed by learned Contempt Judge which is under appeal before us in this case, what we find is that by the said order learned Contempt Judge has only required the personal appearance of the appellant along with child. Thus, the order dated 05.12.2022 neither decides any issue between the parties nor does it give any direction in relation to merit of the issue between the parties.
Accordingly, in view of the law laid down by Hon'ble Supreme Court in the case of Midnapore (supra) , this special appeal is not maintainable which is hereby dismissed.
At this juncture, learned counsel for the appellant states that he may be permitted to withdraw this special appeal, however, we are unable to agree with the said request made by learned counsel for appellant once the matter has been argued at length by learned counsel appearing for both the parties.
Order Date :- 7.12.2022 akhilesh/
Digitally signed by AKHILESHWAR KUMAR Date: 2022.12.08 18:16:33 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether a special appeal is maintainable under Chapter VIII Rule 5 against an order by the Contempt Judge requiring personal appearance of a party and the child in a custody dispute.
Whether an order requiring appearance constitutes a decision on the merits of the dispute between parties attracting an appeal under Section 19 of the Contempt of Courts Act.
Colour shows how this judgement treated each authority
Midnapore Peoples' Cooperative Bank Ltd and others vs. Chunilal Nanda and othersDistinguished¶8
Midnapore Peoples' Cooperative Bank Ltd and others vs. Chunilal Nanda and others, reported in (2006) 5 SCC 399 · Who else cites this
Dipti Goel (Agarwal)
Dr. Dinesh Kumar Agarwal
Devendra Kumar Upadhyaya
Saurabh Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
