Andhra HC (Pre-Telangana)
D.V.K. Kesava Raju vs S.R. Govinda Rajan And Anr. on 7 February, 1989
Equivalent citations: 1990CRILJ299
Author: K. Ramaswamy
Bench: K. Ramaswamy
ORDER
1. By order dt. August 26, 1988 this Court allowed Writ Petition No. 12164 of 1984 quashing the order of removal of the petitioner from service of the first respondent holding that the order is bereft of reasons and directed the respondents to consider the explanation submitted by the petitioner and to hear him before passing appropriate orders within a period of four weeks from the date of receipt of the order. He filed Contempt Case No. 741 of 1988 alleging that despite his Counsel writing a letter to the first respondent on September 6, 1988 to comply with the order passed by this Court, followed by another letter dt. September 12, 1988 and a Telegram dt. September 14, 1988 evoked no response. Later, he was asked to, submit his explanation and accordingly he submitted his explanation and even thereafter took no action. 113 days had passed by from the date of respite of the order but the respondents passed no orders. Thereby, the first respondent committed willful disobedience of the orders of this Court, liable to punishment under S. 12 of the Contempt of Courts Act (Act 70 of 1971), for short, "the Act". When the Contempt Case came up for admission on January 17, 1989, the Counsel was absent. It was adjourned to next day. Even on January 18, 1989, the Counsel was absent. Therefore, the Contempt Case was dismissed for default. Sri R. V. Kameswaran, petitioner's counsel, in his affidavit has stated that on January 17, 1989, his uncle died, therefore, he could not be present. On January 18, 1989, he was in the admission Court and requested his friend, Mr. K. Gangadhar to represent him but he came late by which time the case was dismissed. Therefore he filed this application under O. 9, R. 9 read with S. 151, C.P.C. to restore the Contempt Case. When it has come up on January 30, 1989, I directed the Counsel to show under what provision of law the application for restoration is maintainable. He has taken time and on January 31, 1989, he sought to place reliance on the Writ Rules issued by this Court arguing that the Civil P.C. applies to writ proceedings and O. 9, R. 9 and S. 151 C.P.C. applies. I find it difficult to accede to the contention and he was unable to articulate and angulate in the proper perspective to throw any light. Therefore, I reserved the case.
2. The Act made no express provision applying the Civil P.C. 1908. S. 23 of the Act empowers the High Court to make rules which reads :
"The Supreme Court, or as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to 'its procedure'."
In exercise of the power under S. 23 of the Act read with Arts. 215 and 227 of the Constitution of India and by S. 129 of the Civil P.C. and all other powers hereunto enable this Court to make rules, made the Contempt of Court Rules, 1980 (for short, "the Rules") to regulate the proceedings for contempt of subordinate Courts and this Court. Therein also, there is no express provision conferring power for restoration of Contempt Case dismissed for default. Procedure is provided only how the contempt cases or appeals filed are to be disposed of and the presence of the contemner secured, etc. R. 37 postulates thus :
"(1) With regard to all proceedings for contempts, the procedure prescribed in these Rules which is not inconsistent with any of the provisions of the Contempt of Courts Act, 1971 shall be followed."
Sub-rule (2) thereof reads :
"Save as otherwise provided by the Rules contained herein, the provisions of the Rules of High Court of Judicature, Andhra Pradesh, Hyderabad in its original jurisdiction and in its Appellate Jurisdiction shall, so far as may be, apply to proceedings in relation to Contempt Cases and Contempt Appeals respectively."
Therefore, the only procedure, otherwise than provided under the Act or the Rules of this Court, is the original side as well as the appellate Rules shall apply to the proceedings in relation to contempt cases and contempt appeals. O.XXI of the Original Side Rule prescribes procedure for summoning the contemner and the consequential steps to secure his attendance. There is no specific procedure with regard to restoration of the contempt cases dismissed for default. Equally the appellate side rules are also silent. It could thus be seen that either under the Act, the Rules, the original or appellate side rules of this Court which made express reference of their applicability to contempt proceedings do not contain any procedure as regards the power to restore a Contempt Case dismissed for default. So, O. 9, R. 9 and S. 151 C.P.C. do not apply to contempt proceedings.
3. The question then is whether this Court has inherent power to restore the Contempt Case dismissed for default. Art. 215 of the Constitution of India preserves to every High Court to be court of record reading :
"Every High Court shall be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of itself."
The word "Court of Record" defined by Jowitt in his Dictionary of English Law, First Edition, at page 526 : "A Court whereof the acts and judicial proceedings are enrolled or a perpetual memory and testimony and which has power to fine and imprison for contempt of its authority." The phrase "Contempt of Court" are not words of art and their meaning is well settled by judicial decisions. In Corpus Jurist Secondum, Volume 15, pages 720-721 which was followed by this Court in M. Ratnamanikyam v. K. S. R. Sarma, (1988) 2 AP LJ 132 considered the word "Court of Record" thus :
".... a judicial organised tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it and proceeding according to the course of all the common law ....."
It was held further thus :
"It (the Court of Record) has also inherent Power to fine and imprison for contempt of its authority. The power to commit for contempt is thus an inherent jurisdiction of a Court of Record an necessary adjunct to the exercise of various jurisdictions of the High Court."
In Surendranath Banerjee v. Chief justice and Judges of the High Court of Bengal, (1883), 10 Ind. App. 171 (PC) the Judicial Committee of the Privy Council held that "the powers of the High Court for punishing it are the same there are in England, not by virtue of the Penal Code or the Criminal P.C. but by virtue of common law of England." After surveying the case law in Ratnamanikyam,'s case in paragraph 8, this Court held :
"Therefore, what was inherent in every High Court and the Supreme Court as Court of Record of the power to commit for contempt is made manifest by express declaration in this behalf in Art. 215 in the High Court and Art. 129 in the Supreme Court, but is not a new power conferred for the first time by the Constitution."
The Supreme Court and the High Court of each State are created under the Constitution as custodians of the liberties of the citizen to maintain the rule of law. It is the voice of the judiciary which is heard above the din of volatile cleavages of issues and opinions. The word "Court" has been defined in the Evidence Act, 1872, to include all Judges and Magistrates and all persons except arbitrators, legally authorised to take evidence. In Halsbury's Laws of England, the word "Court" has been pointed out (1) a place where justice is administered and (2) the person or persons 'who administer justice. In Field's Law of Evidence, 10th Edition (1970) Volume I, at page 178, the definition of the word "Court" has been stated thus : "Judicial function means the function of 'deciding litigated question, according to law' - deciding them not arbitrarily but on evidence and according to certain rules of procedure which ensure that the person, who is called upon to decide them, acts with fairness and impartiality. It is often said that two of the important features of the Court are (1) that the proceedings before it are normally conducted in public, and (2) that it is conducted in the presence of the parties concerned" At page 179, it is stated :
"Thus a court must not only be charged with judicial functions but must also be invested with judicial powers. Another important feature of a court is that it exercises jurisdiction over persons by, reason of the sanction of the law and not merely by reason of voluntary submission to such jurisdiction. Properly speaking, the Courts are created only by the authority of the sovereign powers as the fountain of justice, such authority being exercised either by Statute, Characters, Letters Patent or Order in Council."
Every Court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution of such powers as may be necessary to do the right and to undo the wrong in the course of administration of justice.
4. The word 'procedure' is comprehensive to encompass in its ambit - the manner of proceeding, acting and conduct in relation to the action in question. The word "procedure" denotes - "the rule that make or guide the cursus curise, and regulates the proceedings in a cause within the walls or limits of the Court itself." It includes all steps which might be taken in the prosecution or defence thereof, including the necessary and incidental steps to render substantive justice. The rules of procedure are steps in aid and handmaid to render substantial justice. But it is not an end in itself.
5. One of the essential functions of the State is the administration of justice. The aim of rule of law is to punish all deviations and lapses from the code of conduct and standard of behavior which the community, speaking through its representatives, has prescribed as the law of the land. For the settlement of disputes we need guidelines in the form of law and the procedure to redress the wrong through judicial process. Neither Courts exist without law nor law without the Courts. The judicial system deals with the administration of the laws through the agency of the Courts. The system provides the machinery to resolve the dispute on account of which the party aggrieved seeks judicial redress approaching the Courts. Nothing rankles more in the human heart than a brooding sense of injustice. No society can allow a situation to grow where the impression prevails of there being no proper and effective redress for grievances. The rules of procedure thus are intended to subserve the substantial justice. The words 'including' the power to punish for contempt of itself engrafted in Art. 215 are of wide import and amplitude encompassing within their comprehensive compass all procedure not inconsistent with the Act and the Rules to meet the ends of the justice or to prevent miscarriage of justice.
6. Where there is no express provision under the Civil P.C. to meet a particular situation, either to render justice or to prevent miscarriage of justice or to prevent abuse of its process, Courts have interpreted that S. 151 of the Civil P.C. preserves in the Civil Court inherent power to be exercised in diverse situations consistent with the provisions of the Code. It is needless to recount several decisions of various High Courts, but suffice it to state the law laid down by the Supreme Court in this regard which is a binding law under Art. 141. In Padam Sen v. State of Uttar Pradesh, Raghubar Dayal, J. speaking for the Court was to consider the power of a Court to appoint a Commissioner to seize the account books in the possession of the plaintiff when there is no express power conferred in that regard on the Court and the defendant apprehends tampering thereof. While dealing with such situation, it was held that :
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. It is also well recognised that the inherent power is not to be exercised in a matter which will be contrary to or different from the procedure expressly provided in the Code."
It is thus settled law that inherent powers of the Court could be exercised where there is no express provision conferred in this regard but the exercise of the power thereof should be consistent with but not in derogation of the express provisions of the Act or the Rules to do justice or to prevent miscarriage of justice. The rules of procedure are not an end in themselves. They are merely aids to the end product viz., rendering substantive justice. It is neither possible nor practicable to lay down any express guidelines as to under what circumstances the inherent powers could be exercised. When the Court is possessed of inherent power it must be held to be of wide import analogous to unlimited residuary power to do substantial justice in all appropriate cases or to prevent miscarriage of justice or to prevent abuse of its process. The inherent power must be construed broadly in that perspective. A narrow or a pedantic approach must be eschewed to avoid hardship or to prevent injustice. the scope of interjacency depends upon procedural effectivity to assuage the efficacy of rule of law. In other words, to prevent the procedure wagging its tail to undermine substantive law, the Founding Fathers of the Constitution preserved under Arts. 129 and 215, all the powers of the Supreme Court and of the High Courts as Court of Record including power to punish for contempt of itself, employing language of wide amplitude to exercise sound judicial desecration imbued with overwhelming passion to do that which is just, fair and proper. The construction of such wide language of inherent power would be to elongate the constitutional purpose viz., in an appropriate case, to exercise the inherent power inconsistent with the provisions of the Act an the Rules to do substantial justice or to prevent miscarriage of justice. As stated earlier, the rules of procedure are only handmaid to render substantial justice. Entertaining a contempt application is a step in the process of adjudicating whether the contemmnor has committed the offence of civil or criminal contempt punishable under the Act undermining the dignity of justice. Power to punish the contemner for contempt of itself which is inherent in the Court of record includes power to dismiss the case for contempt. When it has power to dismiss on merits it has the power to dismiss for default. Equally as an adjunct or incidental there to, it has also inherent power to restore the application dismissed for default. Considered from this perspective, I have no hesitation to conclude that this Court, in exercise of the power under Art. 215, has inherent power to restore the contempt case dismissed for default. In view of the averments made by the Counsel for the petitioner putting squarely the blame on himself, I accept his averment and thereby I find that there is sufficient cause for his absence when the case was called on the two days. Accordingly the application is allowed and the Contempt Case is restored.
7. Petition allowed.