Kerala High Court
Saranya Zaveri vs Kamadon Academy Pvt. Ltd. on 16 January, 2006
Equivalent citations: 2006(1)KLT994
Author: M. Ramachandran
Bench: M. Ramachandran, A.K. Basheer
JUDGMENT M. Ramachandran, J.
1. By this appeal, orders passed by a learned single Judge dated 18-11-2005 in Contempt of Court Case No. 1177 of 2005 are subjected to challenge.
2. The appellants in the present proceedings are the defendants in a suit filed by the respondent herein, wherein it had been alleged that there were violation of trademark and intellectual property rights. The suit is pending before the District Court, Ernakulam. The appellants had contended that the suit was not maintainable for a variety of reasons. However, as desired orders were not obtained, a Writ Petition had been filed as W.P.(C).No. 22776 of 2005 by the appellants under Article 227, of the Constitution of India. In the above said proceedings, on 10-08-2005 an order had been passed, whereby status quo on the conduct of both the parties till the disposal of the Writ Petition had been ordered. It reads:- "All actions and programmes held by the writ petitioners after obtaining the order from this Court through this Writ Petition, shall be reported to this Court for consideration at the time of hearing of the Writ Petition."
3. While this order was in force, the respondent had filed Contempt of Court Case No. 1177 of 2005 alleging that the appellants had violated the orders as above passed. It had been pointed out that certain events had been conducted by them in Australia and Egypt in violation of the subsisting orders.
4. Affidavits were filed in the Contempt of Court Case by the appellants contending that there was no violation of the orders passed. On 31-10-2005, however, the court had stayed Annexure-A10 programmes advertised by the appellants at Mumbai and Bahamas. A review had been sought for inter alia seeking for vacating the stay orders, but after hearing the parties, an order modifying the earlier order had been passed, which could be extracted herein below:
Partly heard. The respondents shall file a detailed statement containing the activities that had been held, in Egypt, between 18-09-2005 and 25-09-2005, as evidenced by Ext. A3.
2 The respondents shall also file a statement as to whether they have conducted any programme between 13.8.2005 to 15.8.2005.
3. This contempt petition shall be heard after the above statements are filed.
4. The order dated 31.10.2005, staying Annexure A10 programme, is modified and the respondents are allowed to conduct the said programme at Bimini Islands, Bahamas between 18.11.7005 and 23.11.2005, subject to the following conditions:-
(1) The respondents shall not use the website www.kamadonacademy.com or www.kamadonway.com, or any information or systems therein connected or attached with the Kamadon Academy, as per the Kamadon Way of Practice, Preachings and the literatures therein.
(2) The respondents shall maintain complete records of the activities, including the income and expenditure of A.K. Module 11B, and file a detailed report/statement along with the VCD, covering the entire programme of AK Module 11B.
(3) The respondents shall not, overtly or covertly, use any material, information or intellectual properties, that are attached and belonging to Kamadon Academy.
The above directions shall be fully complied with and the report/statement shall be filed within three weeks from the date of completion of the A.K. Module 11B programme.
Against the orders as above, the appeal has been filed.
5. We had occasion to hear Mr. V. Giri on behalf of the appellants as also Sri. Sudhakaran, counsel for the respondent. Mr. Giri contends that the orders, extracted above, as well as the earlier orders dated 31-10-2005 staying the conduct of programmes in the contempt proceedings are beyond the jurisdiction of this Court, as available under the statute. He invites our attention to Rule 6 of the Rules framed under the Contempt of Court Act and points out that every proceedings for contempt requires to be dealt with by a Bench of not less than two Judges. Of course reference is made to the proviso to the rules, introduced by Notification dated 21-10-2000. When civil contempt is alleged in respect of the judgment, decree, direction, order, writ or other process of a learned single Judge, the matter is to be placed before that Judge for a preliminary enquiry. If a prima facie case is made out, and no apology is forthcoming, the Judge is to direct that the matter be posted before the Bench dealing with contempt matters. If no prima facie case is made out, or if it is not expedient to proceed with the matter, discretion is vested in the Judge to dismiss the petition.
6. Counsel had also adverted to the presence of Rule 9, as part of the original Rules, whereby the Court, if satisfied that a prima facie case has been made out, is to direct issue of notice to the respondent. It is submitted that although Rule 6 does not refer to issue of notice, nevertheless, the wordings of the Rules sufficiently wake it clear that notice in the prescribed manner is to be issued and the version of the contemnor obtained. However, emphasis is given to the position that Rule 6 does not at all authorise a single Judge to issue interlocutory directions of any nature, and if there is satisfaction entered about the veracity of the allegations, and if proceedings require to be initiated, the Judge has to refer the case to be considered by a Bench dealing with contempt matters. It is therefore pointed out that in the contempt proceedings, initiated at the instance of the respondent, interlocutory orders dated 31-10-2005 were not called for. It is further submitted that an attempt was there to get the order vacated. But, further conditions have been imposed by the later order, which also were never authorised by the Rules. Therefore, the procedure followed was altogether without jurisdiction.
7. Learned Counsel referred to the decision of a Division Bench of this Court in Antony v. Rana . Advertence was also made to the reported decision in Rajappan Nair v. Stephen Joseph , wherein the Court had held that the single Judge was expected only to examine the question whether the direction subsisting and binding the parties has been complied with or not. The Bench held that single Judge could not have given any positive direction in such proceedings. Any direction so issued is beyond the jurisdiction of court exercising powers under Sections 11 and 12 of the Contempt of Court Act. It is only the Division Bench which is authorised to initiate contempt proceedings, in a general sense. Mr. Giri therefore submitted that it was essential that the impugned orders be set aside. The learned single Judge thereupon could have adhered to the procedure prescribed by the Rules, in case it was possible for him to form an opinion that a prima facie case had been made out.
8. Learned Counsel for the respondent, however, opposes the application and submits that orders dated 18.11.2005 had been solicited by the appellants and it could not have been considered as objectionable. It should have been necessary to assume that the learned Single Judge was not pqwerless while dealing with contempt proceedings and at times, ancillary orders might have been essential so as to preserve the interest of the parties. Therefore, the appeal was misconceived.
9. A more substantial issue also had been raised, namely that an appeal under Section 19(1) of the Contempt of Court Act was not maintainable as against the orders. Although reliance has been placed by the appellants on a decision reported as Mohandas v. Ashokan , it had been pointed out that the facts of the case were totally different and there, the Court had found that a learned single Judge had come to the conclusion that a prima facie case was there for initiation of proceedings. Thereupon, the matter was referred to the Division Bench, and in such circumstances, the appeal would have been maintainable as already power under Article215 of the Constitution stood invoked. It is pointed out that on general issues, law had been laid by the Supreme Court in State of Maharashtra v. Mahboob S. Allibhoy . Learned Counsel submits that it is not as if an appeal lies against any order. The words 'any order' were to be read with 'decision' so as to exclude any interlocutory order of the High Court from the scope of appeal. The Supreme Court had held that unless the order of the High Court imposes a punishment in exercise of its jurisdiction to punish for contempt, no appeal was to lie. Specific advertence had also been made to the observations in paragraph 3 of the judgment.
10. We find that the Supreme Court was dealing with a case, where the proceedings for contempt had been dropped and the State had preferred an appeal as against the said proceedings. Reliance had been placed by the Supreme Court on earlier decisions, in Baradakanta Mishra v. Justice Gatikrushna Misra as well as D.N. Taneja v. Bhajan Lal (1988) 3 SCC 26, wherein it had been held that the right of appeal will be available under Sub-section (1) of Section 19 only against any decision or order of a High Court passed in exercise of its jurisdiction to punish any person for contempt. The present set of facts, as to whether there was competence for a learned single Judge to pass repeated orders, in spite of Rule 6 of the Kerala Rules were nowhere in the picture.
11. On the facts presented, when it is evident that the exercise of power indeed is as envisaged by Article 215 of the Constitution, we have to see that the contingency presented before us requires to delve in detail so as to see whether an absolute embargo is ruled in the matter of appellate remedy. The Supreme Court had specifically held that the High Court had not exercised powers under Article 215 of the Constitution, and therefore, there was no question of an appeal. Mr. Giri rightly submitted that the Supreme Court was also not examining as to whether there was justification for passing interlocutory orders at the preliminary stage. More importantly there was no presence of a rule in the nature of Rule 6 of the Kerala Rules and especially the proviso thereto.
12. We also see the observation in paragraph 3 of the judgment to the effect that "If the expression 'any order' is read independently of the 'decision' then an appeal shall lie under Sub-section (1) of Section 19 even against any interlocutory order passed in a proceeding for contempt by the High Court which shall lead to a ridiculous result." This special circumstance is also not there, as at present, and we feel that unless interference is made, it may lead to drastic results.
13. We may also note in this context a decision rendered by a larger Bench of this Court in K.S. Das v. State of Kerala 1992 (2) KLT 358 (FB). The Kerala High Court Act provides for an appeal under Section 5(i) of the Act to a Division Bench from a judgment or order of a single Judge in exercise of original jurisdiction. A question had arisen as to whether an appeal could be filed from an interlocutory order of a single Judge, and in view of conflict of decisions, a reference of the issue had been made to the Full Bench. Chief Justice Jagannadha Rao, as he then was, speaking on behalf of the Bench, had extensively dealt with the issue. Observations in paragraph 21 of the judgment might be relevant, which are extracted herein below:
A 'final order' - as distinguishable from an intermediate order passed while keeping the main case pending - could mean an order by which, the entire dispute or the main case gets disposed of, nothing more remaining before the Court, Two types of final orders could be visualised: (A) where the entire matter will stand disposed of finally even if the order was just the other way about; and (B) where the matter will stand finally disposed of one way, but if it was the other way, it would become a pending matter. The first one corresponds to Lord Esher' s view and the second corresponds to Lord Alverstone's view. According to Lord Esher in Salaman v. Warner 1891 (1) Q.B. 734,anorderwould be 'final' if whichever way the case was decided, i.e., for the one party or the opposite party, it would dispose of the entire case once and for all (i.e. as in (A) above). But it would be 'interlocutory' if the result would be final then decided in one way and if it would re-open the matter if decided the other way (i.e. as in (B) above). But according to Lord Alverstone, CJ. in Bozson v. Altrichain Urban District Council (1902) 1 K.B. 547, the order which while in favour of one party puts an end to it, would be a 'final order', even though it may not dispose of the matter but revive the matter, if it had been decided the other way. Thus, according to Lord Alverstone both the (A) and (B) types of orders would be 'final orders' while according to Lord Esher, M.P., only (A) type would be 'final order'. The view of Lord Halsbury was also the same as Lord Alverstone. In latter cases, the approach of Lord Esher has been described as the 'application approach' while the approach of Lord Alverstone and Lord Halsbury has been described as the 'order approach'. Lord Denning, in Salter Rex & Co. v. Ghosh 1971 (2) All. E.R. 865, said that Lord Alverstone was right in logic while Lord Esher was right in experience. He, however, admitted that the question as to when an order was 'final' or 'interlocutory' was very uncertain, but preferred Lord Esher's view. The position continues to besoasin Moram v. Lloyd (1983) 2 All. E.R. 200, and White v. Brunton (1984) 3 All. E.R. 1005.
14. The question was posed as to the meaning of the expression as to whether it is used in a restricted manner as being equivalent to a final order or not. Citing 'Sutherland's Statutory Construction (3rd Edn., Vol. 3 para 6807', the learned Judge had noticed that "Statutes giving the right of appeal are liberally construed in furtherance of justice, and an interpretation which will work a forfeiture of that right is not favoured.... Likewise, an interpretation limiting the cases from which an appeal may be brought or the persons who may bring an appeal is not preferred." It had been concluded that the "word 'order' in Section 5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions, provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders, only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause substantial prejudice to the parties."
15. Mr. Giri points put that the present orders satisfy the requirement as above suggested, on all fours. The added disadvantage, according to him, is that breach of the further restrictions introduced by the later interlocutory order will again warrant contempt proceedings and this position is never envisaged by law. According to him, the High Court is expected to sit in judgment over the conduct of the parties at a given point of time, and even a Division Bench may not be entitled to pass interlocutory or conditional orders in contempt proceedings. Therefore, when prima facie case alone is the subject matter of the enquiry, single Judge do not at all possess such powers.
16. We feel that earlier limb of the proposition as above may be extreme, because even in contempt proceedings, at times it may be necessary to pass interlocutory orders, as might be expedient, for preservation of rights of parties. But since this issue does not directly arise in this appeal, we are not finally pronouncing upon the issue.
17. Resultantly, we hold that the appeal is maintainable. In the present case, additionally invocation of the powers under Section 5(i) of the High Court Act also is there, and we overrule the objection.
18. The foregoing discussions also are sufficient to dispose of the appeal. We find that the interlocutory orders dated 31-10-2005 as well as 18-11-2005 were beyond the jurisdiction of the learned single Judge vis-a-vis the powers conferred by Rule 6 of the Contempt of Court Rules. The learned single Judge is required to pass an order, as expected of him under Rule 6 alone. Consequently, the appeal will stand allowed. The impugned orders are set aside.