Bombay High Court
Yashodabai W/O Kanhayyalal ... vs Narayandas Gokuldas Saraf And Ors. on 5 September, 1991
Equivalent citations: 1992(1)BOMCR259, (1992)94BOMLR19
JUDGMENT A.V. Savant, J.
1. These two petitioners reflect a very sorry state of affairs and they demonstrate how the delay in the system of administration of justice may, possibly, result in defeating the justice of the matter. The two contempt petitions arise out of the reference made by the Joint Civil Judge, Senior Division, Pune, on the 30th August, 1980. It appears that though only one reference was made on 30th August, 1980 by the Joint Civil Judge, Senior Division, Pune, to this Court, the office has numbered the proceedings initially as Contempt Petition No. 62 of 1980 and again thereafter as Contempt Petition No. 6 of 1981 on a letter dated 1-9-1980 received from the District Judge, Pune. Contempt Petition No. 62 of 1982 appears to be on the basis of the reference made by the learned trial Judge on 30th August, 1980. Contempt Petition No. 6 of 1981 has been numbered on the basis of the letter dated 1-9-1980 received from the District Judge, Pune. Rule in Contempt Petition No. 62 of 1980 was issued on November 20, 1980, whereas in contempt Petition No. 6 of 1981, Rule was issued on January 29, 1981. However, both the petitions can be disposed of by this common Judgment & Order.
2. Plaintiff Yoshodabai had filed Special Civil Suit No. 65 of 1959 in the Court of the learned Civil Judge, Senior Division, Pune, for dissolution of the partnership and for other ancilliary reliefs. The said proceedings reached the High Court in First Appeal No. 44 of 1964 which was disposed of as per the consent terms filed in this Court on the 25th September, 1964. Thereafter, proceedings for final decree were pending in the trial Court. In the said proceedings in the trial Court, the legal representatives of original defendant No. 8 alleged that out of the large number of immovable properties belonging to the Firm, some properties were lying vacant. The legal representatives of original defendant No. 8 identified two properties which were lying vacant viz. House No. 163/64, Raviwar Peth, Pune, and the other was the adjoining property occupied by Pandit & Sons. The legal representatives of original defendant No. 8 stated that defendants Nos. 3, 5 to 7 were likely to induct new tenants and/or create third party rights which would adversely affect the final decree proceedings pending in the trial Court and hence, the prayer was that the said defendants Nos. 3 and 5 to 7 should be restrained by an order of injunction from inducting any other tenant or handing over possession of the said premises. On the 25th January, 1973 itself, an ad-interim order was passed in the presence of the said defendants Nos. 3 & 5 to 7 restraining them from inducting any new tenant or from handing over possession of any premises out of the suit properties until further orders. There is no controversy that the said injunction was served upon defendants Nos. 3, 5 to 7, who are the alleged contemners in these two contempt petitions. Defendants Nos. 3, 5 to 7 also filed their reply on the 5th February, 1973 in the trial Court and raised several contentions in support of their plea that the ad-interim order of injunction should be vacated. Admittedly, however, no order was passed on the said say of the said defendants and the ad-interim order dated 25th January, 1973 continued to remain in force.
3. In the mean while, that is to say - between 25th January, 1973 (when the ad-interim order was passed) and 13th November, 1975 (when the contempt application was made by the legal representatives of original defendant No. 8 in the trial Court,) it appears that defendants Nos. 3, 5 to 7 committed a breach of the order of injunction by getting one of the premises vacated from M/s. Ashok Cycle Trading Co., in whose place Shri Mahendrakumar S. Agarwal was inducted as a tenant in Suit House No. 161, Budhwar peth, pune. In their application dated 13th November, 1975, the legal representatives of 8th defendant specifically averred that in spite of the said order of injunction dated 25th January, 1973, defendants Nos. 3, 5 to 7 committed a breach of the said order and had inducted the said Mahendrakumar Agarwal as a tenant after evicting M/s. Ashok Cycle Trading Co. Though the exact date is not mentioned in the application, it appears from the evidence that Mahendrakumar Agarwal was inducted sometime in April 1975. To this application dated 13th November, 1975, Exh. 793 in the lower Court, defendants Nos. 3, 5 to 7 have filed their reply, which is at Exh. 807, dated 16th December, 1976. It is true that the said defendants denied that they had inducted Mahendrakumar Agarwal in the premises in dispute. It was also denied that any consideration was accepted from Mahendrakumar Agarwal, who was the new tenant in the said premises. The defendants Nos. 3 and 5 to 7 also contended that on merits, the order of injunction was uncalled for. This say was filed by defendants Nos. 3 and 5 to 7 as far back as on 16th December, 1976 in reply to the application dated 13th November, 1975 alleging that contempt was committed by defendants Nos. 3 and 5 to 7.
4. It is somewhat unfortunate, as stated at the outset in this judgment, that the learned Civil Judge passed an order as late as on 10th April 1980, prima facie holding that defendants Nos. 3 and 5 to 7 appeared to have committed Contempt of Court and hence, it was necessary to make a reference to the High Court. The reference was made by him as late as on 30th August, 1980. The same learned Judge, who passed an order on 10th April, 1980 on application, Exh. 793, holding defendants Nos. 3 and 5 to 7 as guilty of Contempt of Court necessitating a reference being made to the High Court, made a reference to the High Court on 30th August, 1980. As stated earlier, rule in Contempt Petition No. 62 of 1980 was issued on November 20, 1980 and rule in Contempt Petition No. 6 of 1981 was issued on 29th January, 1981.
5. The case of the original applicant, defendant No. 8 in brief, is that despite the service of the order of injunction dated 25th January, 1973, defendants Nos. 3 and 5 to 7 have acted in wilful disobedience of the order of injunction and have deliberately committed a breach of the said order of injunction. In defiance of the said order of injunction, they have got one of the premises vacated from M/s. Ashok Cycle Trading Co., and have inducted Mahendrakumar Agarwal as a tenant. Before the learned Civil Judge, the parties led evidence including the depositions of the 3rd defendant as also the said Mahendrakumar Agarwal. Before the learned trial Judge, naturally, an attempt was made to contend that there was no breach of the order of injunction and that it was for legal representative of original defendant Nos. 8, to prove, beyond reasonable doubt, that after the order of injunction was served upon the defendants, they have got the premises vacated from M/s. Ashok Cycle Trading Co., and had inducted Mahendrakumar Agarwal. On appreciation of the evidence before him, the learned Civil Judge came to the prima facie conclusion on 10th April, 1980 that there was the breach of the order of injunction and hence, made a reference to this Court as mentioned earlier.
6. The third defendant, who is the main contestant and who seems to have been managing the affairs on behalf of the Firm, has filed an Affidavit in this Court as far back as on 8th March, 1984. He has contended in his affidavit that he was not guilty of any contempt nor was he guilty of breach of the order of injunction dated 25th January, 1973. It was sought to be contended that the Firm had large immovable properties comprising of as many as 240 tenements and it was impossible for the partners, individually, to be familiar with each tenant while signing the receipt in token of the rent being received. It was sought to be contended that the Munim used to prepare the receipts and the partners used to sign them in routine course. A suggestion was made that even the 8th defendant herself could have been signed by her. It was ultimately conceded by defendant No. 3 that inadvertently some receipts may have been signed by him in respect of the premises formely occupied by M/s. Ashok Cycle Trading Co., and which is in respect of the premises formely occupied by Mahendrakumar Agarwal. Reiterating that he had no intention to commit breach of the order, the third defendant tendered an unconditional apology in his Affidavit.
7. Respondent No. 5 - Krishnadas and respondent No. 6 - Dwarkadas, have also filed affidavits in this Court which have been shown in August 1991. Their affidavits are almost identical. They have contended that while it is true that they were the partners of the erstwhile Firm, the managing partner was really defendant No. 3 - Naraindas, and it was he who was looking after the affairs of the Firm and, therefore, if at all there was a change of tenancy in respect of the suit premises covered by the order of injunction, the decision was solely that of the third defendant Naraindas. However, both Krishnadas - defendants No. 5 and Dwarkadas No. 6 have tendered their unconditional apology. It was further contended by them that, subsequently, the properties have been sold for recovery of the arrears of Income-tax and there is no more benefit accuring to the said defendants as a result of the alleged act committed as far back as in 1975. Defendant No. 7 - Maniklal has filed no affidavit.
8. I have heard all the learned Counsel viz., Shri Dalvi on behalf of the legal representative of original defendant No. 8, Shri Mhamane on behalf of defendant No. 3 - Naraindas and defendant No. 7 - Maniklal, Shri Abhyankar for defendant No. 5 - Krishnadas and defendant No. 6 - Dwarkadas and Miss Shastri for the State of Maharashtra.
9. As stated earlier, there is not much of a controversy on facts. The question as to whether the premises were got vacated from M/s. Ashok Cycle Trading Co., and were handed over to Mahendrakumar Agarwal need not now be gone into in these two petitions. If it is a case of contempt committed by the said defendants Nos. 3 and 5 to 7, as of today, both Shri Mhamane and Shri Abhyankar contended that they have already tendered their unconditional apology and having regard to the fact that the incident is alleged to have occured as far back as in 1975, they contended that a lenient view should be taken. Shri Abhyankar in particular contended that as far as his clients - defendants Nos. 5 and 6 were concerned, they were not the active partners and, if any one, it was defendant No. 3 Naraindas, who was actually concerned with the transfer of tenancy of the premises in dispute which was the act of contempt.
10. However, both Shri Mhamane and Shri Abhyankar have raised a preliminary objection based on the provisions of section 20 of the Contempt of Courts Act, 1971. Section 20 of the Contempt of Courts Act reads as under :---
"20. Limitation for actions for contempt.---No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
According to Shri Mhamane and Shri Abhyankar since the application, Exh. 793, was made by the legal representative of original 8th defendant as far back as on the 13th November, 1975 and since the evidence on record shows, at the highest, that the premises were let out in April 1975 which constitutes an act of contempt, the action intiated in Contempt Petition No. 62 of 1980 on November 20, 1980 was without jurisdiction. Similarly, it is contended by the said learned Counsel that the action initiated in Contempt Petition No. 6 of 1981, as late as on the 29th January, 1981, was also without jurisdiction. Miss Shastri, appearing for the Government, while contending that defendants Nos. 3 and 5 to 7 were clearly guilty of contempt, pointed out that action will have to be taken subject to the provisions of section 20 of the Act quoted above.
11. In reply to this preliminary objection, Shri Dalvi, the learned Counsel appearing for the legal representatives of original defendant No. 8, firstly, contended that the word "Court" appearing in the opening part of section 20 would refer to the trial Court. Shri Dalvi, therefore, further contended that the words "initiate any proceedings" appearing in section 20 would refer to the initial action taken by the trial Court on 13th November, 1975 itself. Shri Dalvi invited my attention to the endorsement made by the learned Civil Judge on 13th November, 1975 itself on Exh. 793, which was filed on the 13th November, 1975. The said endorsement is as under :----
"Other side to say.
Sd/ - x x C.J.S.D. 13-11"
According to the learned Counsel, the bar of section 20 would not apply in the present case inasmuch as the Civil Judge, Senior Division, Pune, was a "Court" within the meaning of section 20 and while passing the order "other side to say" on 13th November, 1975 itself, the proceedings were initiated.
12. Secondly, Shri Dalvi contended that it was only when the contempt was brought to the notice of the High Court by way of a reference made as late as on 30th August, 1980 that the High Court has initiated the proceedings. According to Shri Dalvi, if on a true construction of the provisions of the Contempt of Courts Act the High Court was made aware of the contempt by the reference made on 30th August, 1980, the issuance of the Rule in Contempt Petition No. 62 of 1980 of November 20, 1980 and the issuance of the Rule in Contempt Petition No. 6 of 1981 on 29th January, 1981 was perfectly within time and was not hit by the provisions of section 20 of the Contempt of Courts Act.
13. Finally, and in the alternative Shri Dalvi contended that this is a fit case where having regard to the provisions of section 29(2) of the Limitation Act, 1963, the provisions of section 5 of the Limitation Act should be applied to the exercise of the powers by the High Court and the delay in initiating the proceedings for contempt should be condoned. Shri Dalvi contended that if defendants Nos. 3 and 5 to 7 had acted in gross violation of the order of injunction and if the legal representatives of original defendant No. 8 had made an application to the trial Court as far back as on the 13th November, 1975, the interests of justice could not be defeated merely because the learned Civil Judge took nearly 5 years to make a reference as late as on 30th August, 1980. He further contended that merely because the High Court took some further time to issue Rule on the Contempt Petitions in November 1980 and January 1981, the cause of administration of justice should not suffer.
14. In order to appreciate the rival contentions raised by the Counsel, it is necessary to set out the nature of jurisdiction in contempt proceedings. It is now well settled that the exercise of the contempt jurisdiction is a matter entirely between the Court and the alleged contemner. Though the Court is moved by a motion or a reference, it may in its discretion decline to exercise its jurisdiction for contempt. It is only when the Court decides to take action and initiates a proceeding for contempt, that it assumes the jurisdiction to punish for contempt. Where a Court rejects a motion or a reference and declines to initiate the proceeding for contempt, it refuses to assume or exercise the jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. It is equally well settled that so far as the contempt jurisdiction is concerned, the only actors in the drama are the Court and the alleged contemner. An outside party comes in only by way of drawing the attention of the Court to the contempt which has been committed. However, the outside party does not thereby become a party to the proceedings for contempt which may be initiated by the Court.
15. As far back as in Narendrabhai Sarabhai Hatheesing v. Chinubhai Manibhai Seth, A.I.R. 1936, Bombay, 314, this Court observed as under :-
"Proceedings for contempt are matters entirely between the Court and the person alleged to have been guilty of contempt. No party has any statutory right to say that he is entitled as a matter of course to an order for commital because his opponent is guilty of contempt. All that he can do is to come to the Court and complain that the authority of the Court has been flouted, and if the Court thinks that it was so, then the Court in its discretion takes action to vindicate its authority. It is therefore, difficult to see how an application for contempt raises any question between the parties, so that any order made on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties".
16. Coming to the first contention raised by Shri Dalvi that the word "Court" appearing in section 20 refers to the trial Court which makes the reference and that, therefore, the words "initiate any proceedings" appearing in section 20 also refer to the initial action taken by the trial Court in this case on 13th November, 1975, it is not possible to accept the said contention. In the case of Chief Judicial Magistrate, Wardha v. U.B. Dhande, reported in 1984 M.L.J. 878, a Division Bench of this Court was called upon to consider this question and it was held that the "Court" contemplated by section 20 of the Contempt of Courts Act, in the case of a contempt of a subordinate Court, is the High Court. In the case where contempt is of subordinate Court, it would not be sufficient compliance of section 20 if the subordinate Court initiates a proceeding for the purpose of making reference to the High Court. Simply because the subordinate Court is moved by the party aggrieved and the subordinate Court holds an enquiry for the purpose of making a reference to the High Court, it cannot be said that the subordinate Court has initiated proceedings for contempt. The proceeding for contempt can be said to be initiated only when the High Court decides to take action against the contemner and initiates the proceedings by issuing a notice to the contemner to show cause why action under the Contempt of Courts Act should not be taken against him. This Court further held that the position of a person who brings contempt to the notice of a subordinate Court or to the High Court as also the position of a subordinate Court which makes a reference to the High Court is no better than an informer or a reporter. In para 6 of the judgement, at page 880 of the Report, the Division Bench observed thus :
"It was sought to be urged that the term 'Court' used in section 20 means, in the case of a contempt of a subordinate Court, that Court and not the High Court, and hence the initiation contemplated by section 20 is the initiation of the proceedings made by the subordinate Court before making the reference to the High Court. It is difficult to accept this submission because the proceedings for contempt can never be initiated by a subordinate Court even though the alleged contempt is of that Court. The position of a person who brings the contempt to the notice of the subordinate Court or to the High Court and that of the subordinate Court, which makes the reference, is no better than an informer, or a reporter. The subordinate Court cannot take any action for contempt for its contempt and what the subordinate Court is expected to do is to make a reference to the High Court for initiating proceedings. It is for the High Court to decide whether any action for contempt is called for and, if so, to initiate proceedings for punishing the person guilty of contempt of the subordinate Court. All that the subordinate Court can do is to make a reference. The subordinate Court may do so on its own motion or being moved by the party aggrieved, but the subordinate Court is not competent to take any action against the contemner and hence cannot initiate any proceedings for that purpose. It is, therefore, difficult to accept the submission that the Court contemplated by section 20 is the Court of which contempt is committed and in a case where the contempt is of subordinate Court, it would be a sufficient compliance of section 20 if the subordinate Court initiates proceedings for the purpose of making a reference to the High Court. Simply because the subordinate Court is moved by the party aggrieved and the subordinate Court holds enquiry for the purpose of making a reference to the High Court, it cannot be said that the subordinate Court had initiated proceedings for contempt. The proceedings for contempt can be said to be initiated only after the High Court decides to take action against the contemner and initiates the proceedings by issuing notice to the contemner to show cause why action under the Contempt of Courts Act should not be taken against him. The proceedings will be deemed to be initiated only when the High Court passes an order calling upon the contemner to show cause and not till then".
I am in respectful agreement with the above observations. It is, therefore, not possible to accept the first contention raised by Shri Dalvi that the endorsement on 13th November, 1975 on Exh. 793 in the following words :-
"Other side to say Sd/-
C.J.S.D. 13.11".
amounts to initiation of the contempt proceedings in the facts of the present case.
17. Shri Dalvi himself very fairly invited my attention to the said Division Bench decision of our Court in Chief Judicial Magistrate, Wardha v. U.B. Dhande, reported in 1984, Maharashtra Law Journal, page 878. Identical contentions were raised before the Division Bench of this Court at Nagpur in Dhande's case. The contemner was found to have defied the order of the Chief Judicial Magistrate repeatedly in the month of April, May, July and August 1981. However, Rule was issued by the Court as late as on 7th September, 1982, which was beyond the period of one year. The Division Bench expressed dissatisfaction at the manner in which the Chief Judicial Magistrate had delayed the making of a reference and the delay in the matter being put up before the Division Bench for issuance of the rule. However, on consideration of the provisions of the Contempt of Courts Act and the various decisions, the Division Bench came to the conclusion that the "Court" contemplated by section 20 of the Contempt of Courts Act, 1971, in the case of a contempt of a subordinate Court was the High Court. In the case where the contempt is of the subordinate Court, it would not be sufficient compliance of section 20 if the subordinate Court initiates proceedings for the purpose of making a reference to the High Court, without anything further. Simply because the subordinate Court was moved by the party aggrieved and the subordinate Court held an inquiry for the propose of making a reference to the High Court, it cannot be said that the subordinate Court had initiated proceedings for contempt. The proceedings for contempt can be said to be initiated only after the High Court decides to take action against the contemner and initiates proceedings by issuance of a notice to the contemner to show cause why action under the Contempt of Courts Act should not be taken against him. The Division Bench in para 6 of the Judgement considered the arguments which have been advanced by Shri Dalvi before me that the word " Court" used in section 20 would mean, in case of contempt of subordinate Court, that subordinate Court and not the High Court. The Division Bench observed that since the subordinate Court cannot take any action for contempt, including its own contempt, it is for the High Court to decide whether any action for contempt is called for.
18. In my opinion, this is clear from the provisions of section 10 of the Contempt of Courts Act, which reads as under :---
"10. Power of High Court to punish contempts subordinate courts.---
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercise in respect of contempts of itself :
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempts is an offence punishable under the Indian Penal Code".
All that the subordinate Court can do is to make a reference to the High Court and since the subordinate Court has no jurisdiction to take cognizance of even its own contempt under the Contempt of Courts Act, there can be no initiation of the proceedings in the subordinate Court. The proceedings can be initiated only on the High Court admitting the matter and issuing rule in the contempt petition.
19. The second contention of Shri Dalvi that it was as late as on 30th August, 1980 when the contempt was brought to the notice of the High Court by way of a reference and, therefore, initiation of the proceedings on 20th November, 1980 in Contempt Petition No. 62 of 1980 or on 29th January, 1981 in Contempt Petition No. 6 of 1981 is within time, is also devoid of any substance. In this behalf, my attention has been invited to a decision of a Division Bench of this Court in the case The State of Maharashtra v. J.V. Patil, reported in 78, Bombay Law Reporter, 116. It was a case where the Sub-Inspector of Police of Kandhar Police Station was found to be repeatedly committing breach of the orders and notices issued by the Judicial Magistrate, F.C., Kandhar, District : Nanded. Notices were issued to him from time to time requiring him to report compliance within a short period. He was also required to appear before the Court and to show cause within a period of two to three days. However, on his failure to do so, proceedings for contempt were initiated. The notices were issued to the Sub-Inspector in August and September 1972 and it was on 22nd November, 1973 than the High Court issued Rule on the contempt petition after the matter was scrutinised by the Administrative Judge of the Court. Interpreting section 20 of the Act, the Division Bench came to the conclusion that the date on which the contempt proceedings can be said to have been initiated was the date on which the matter was placed before the Division Bench of the Court to hear the contempt proceedings and on which date the Division Bench passed the order of issuance of the rule. Since in J.V. Patil's case the rule was issued as late as on 22nd November, 1973 in respect of the breaches committed by the Sub-Inspector of Police in August and September 1972 and this Court took the view that no action could be taken in view of the bar of section 20 of the Contempt of Courts Act.
20. The third and the last contention of Shri Dalvi was that this was a fit case where having regard to the provisions of section 29(2) of the Limitation Act, the provisions of section 5 of the Limitation Act can be invoked and the delay should be condoned. According to the learned Counsel, the legal representatives of the original 8th defendant had made an application to the trial Court as far back as on 13th November, 1975. On evidence, it transpired that the act of contempt was committed some time in April 1975. It was the learned Civil Judge who took nearly 5 years to make a reference by his order dated 30th August, 1980. Even his earlier order holding, prima facie, that defendants Nos. 3, 5 to 7 were guilty of contempt necessitating making of a reference was passed on the 10th April, 1980. Shri Dalvi, therefore, contended that this was a case where the provisions of section 5 of the Limitation Act could be invoked and the delay should be condoned.
21 It is not possible to accept this contention. The Division Bench in Dhande's case was directly called upon to consider a similar argument that in view of the provisions of section 29(2) of the Limitation Act, 1963, the provisions of sections 4 to 24 of the Limitation Act were not expressly excluded by the Contempt of Courts Act which was a special law, and hence, the provisions of section 5 of the Limitation Act could be invoked. The Division Bench considered the observations of the Supreme Court in Vidyacharan Shukla v. Khubchand Baghel and others, reported in A.I.R. 1964, Supreme Court pg. 1899, as explained by the Supreme Court in K. Venkateswara Rao and another v. Bekkam Narasimbha Reddi and others, and concluded that the Contempt of Courts Act, 1971 was a self-contained Code. Looking to the scheme of the Act and specially the wording of section 20, it was clear that the bar of limitation described by section 20 was absolute, making the provisions of sections 4 to 24 of the Limitation Act inapplicable to the proceedings under the Contempt of Courts Act. The Division Bench in Dhande's case went further and held that section 20 operates as a jurisdictional bar and prevents the Court from initiating the proceedings after the expiry of the period of one year from the date on which the contempt is alleged to have been committed. In a sense, it is a condition procedent to an action for contempt being initiated. The Division Bench indicated in para 14 that section 20 prescribes not only a period of limitation, but impose a condition precedent for initiation of the proceedings under the Contempt of Courts Act, 1971. The said observations can be reproduced usefully :----
"14. There is another aspect of the matter and that is whether section 20 prescribes a period of limitation or imposes a condition precedent for initiation of proceeding under the Contempt of Courts Act, 1971. Section 20 does not contemplate of institution of any proceedings which involves filing of an application. What section 20 contemplates is initiation of the proceeding by the Court which the Court can do suo motu or otherwise. As observed above, proceedings are initiated only when the Court takes cognizance of the complaint and decides to take action for contempt by passing an order directing issue of show cause notice to the contemner. The Court may act on its motion. The Court may act in case of civil contempt of the subordinate Court on a reference by the said Court, and in case of criminal contempt on a motion made by the Advocate General or any person with the consent in writing of the Advocate General or by such Law Officer, described in Clause (c) of sub-section (1) of section 20, or on a reference by the subordinate Court. Further, the Court is not bound to take action for contempt and may decide not to take any action. It is only when the Court decides to take action and takes steps in that direction, obviously by issuing notice to the contemner that the proceedings will be deemed to have been initiated within the meaning of section 20. Section 20 does not contemplate institution of any proceeding and hence there is no question of prescribing a limitation for instituting a proceeding. For this reason also, section 29(2) of the Limitation Act cannot be invoked. Section 20 operates as a jurisdictional bar and prevents the Court from initiating proceedings after the expiry of the period of one year from the date on which the contempt is alleged to have been committed. In a sense it is a condition precedent to an action for contempt".
22. The Division Bench also referred to the decision of the Gujarat High Court in Dineshbhai A. Parikh v. Kripalu Co-op. Housing Society, Nagarvel Ahmedabad, and the decision of the Karnataka High Court in the case of N. Venkatramanappa v. D.K. Naikar and another, reported in A.I.R. 1978 Karnataka, page 57 and came to the conclusion that what section 20 of the Contempt of Court Act, 1971 provides is not the period of limitation, as is ordinarily understood, but is a condition precedent to the exercise of the Court's power under the Act. Section 20, therefore, operates as an absolute bar.
23. Shri Dalvi also very fairly invited my attention to another recent judgement of the Division Bench of this Court reported in 1990 (2) Bombay Cases Reporter, page 262 in the case of M/s. Golchha Advertising Agency v. The State of Maharashtra and another. In M/s. Golchha Advertising Agency's case, the Division Bench went further to the extent that even if notice before admission was issued within a period of 12 months, as was done in the case before the Division Bench, inasmuch as, Rule was issued after the expiry of the period of one year, the bar of section 20 would apply. The learned Judges held that between the date of the commission of the alleged contempt and the date of the actual initiation of the contempt proceedings by means of the issuance of Rule, no intervening event, even an order of issuance of the notice before admission can stop the running of time of one year, referred to in section 20 of the Act. In my view, therefore, it is not possible to accept the last argument advanced by Shri Dalvi. Thus, the preliminary objection raised by Shri Mhamane and Shri Abhyankar must be upheld.
24. To sum up the above discussion, my conclusions are as under :----
(i) The reference to the word "Court" appearing at the beginning of section 20 would not be to the subordinate Court, but would be to the High Court. The words "initiate any proceedings for contempt" appearing in section 20 would refer to the issuance of the rule and not merely making of a reference by a subordinate Court to the High Court;
(ii) The starting point for calculating the period of one year stipulated under section 20 of the Contempt of Courts Act is from the date on which the contempt is alleged to have been committed irrespective of the date on which it is brought to the notice of the High Court. Between the date of the commission of the alleged contempt and the date of actual initiation of the contempt proceedings, no intervening event or order stops running of time for one year referred to in section 20;
(iii) The Contempt of Courts Act is a self-contained Code. What section 20 provides is an absolute bar and the compliance with the provisions of section 20 is a condition precedent and is not merely a provision prescribing the period of limitation. In this view of the matter, the provisions of sections 4 to 24 of the Limitation Act will have no application while considering the bar contained in section 20 of the Contempt of Courts Act.
There is, thus no merit in any of the contentions advanced by Shri Dalvi and the preliminary objection based on section 20 must be upheld.
25. Shri Dalvi then submitted that having regard to the fact that a number of genuine cases suffer as a result of the bar of section 20 resulting in grave injustice, some observations may be made on the necessity of enlarging the period stipulated in section 20 of the Act. It is clear from the perusal of most of the judgement's referred to above that in case of the contempt of the subordinate Court a practice has evolved, of making a reference by the subordinate Court to the High Court. Experience shows that the application complaining of contempt is normally made first to the subordinate Court for action being initiated under the Contempt of Courts Act, 1971. The subordinate Court may take its own time, may be within a year of the date of the contempt, to take necessary action for recording a prima facie finding and making a reference to the High Court. In some cases, the subordinate Court may forward the papers to the District Court, which in turn may forward the papers to the High Court. The observations of the Division Bench in Dhande's case 1984, Mh.L.J., 878 show that even after the papers reach the High Court, it takes some time before the papers are placed before the Court for passing the order of issuance of the rule. The observations of the Division Bench of this Court in M/s. Golchha Advertising Agency's case show that even after issuance of notice before admission in some cases, the service of notice does take time, resulting in the period of one year getting over before the rule is actually issued. In the present system of administration of justice, to expect the High Court to issue rule within the period of one year in cases of contempt of subordinate courts may be difficult. In J.V. Patil's case the Sub-Inspector of Police appeared to be in no mood to comply with the orders of the Court repeatedly issued against him and there were complaints made to the subordinate Court pointing out that the Sub-Inspector of Police was in contempt of the orders of the subordinate Court repeatedly. In Dhande's case (supra), the Division Bench expressed dissatisfaction at the manner in which the matter was delayed at different stages though prima facie, the subordinate Court had found the contemner to be will-fully defying the orders of the Court not once but repeatedly on as many as 7 occasions between 30th April, 1981 and 3rd August, 1981. Similarly, in M/s. Golchha Advertising Agency's case (supra), the contempt alleged was of the order of the High Court itself and even then the Court found itself helpless by virtue of the bar of the provisions of section 20 of the Act. The conclusions reached in J.V. Patil's case reported in 78, Bombay Law Reporter, 116 and in Dhande's case reported in 1984, Mh.L.J., 878 show that for the compliance with the procedural formalities of making a reference, wherever necessary, the period of one year may just not be enough. It may, therefore, be worthwhile considering as to whether the period stipulated under section 20 could be suitably enlarged so as to ensure that there is no failure of justice. As contended by the Government Pleader in this case while defendants Nos. 3 and 5 to 7 are prima facie, guilty of contempt, the Court is helpless by virtue of the bar of the provisions of section 20 of the Contempt of Courts Act. It is, therefore, for the appropriate legislature to consider the question as to whether the provisions of section 20 of the Contempt of Courts Act, 1971 need to be suitably amended so as to enlarge the period of one year to a larger period permitting the High Court to initiate proceedings in appropriate cases.
26. In view of the above, rule in both the contempt petitions shall stand discharged.