R. K. ARORA GENERAL MANAGER & ANR.versusM/S ACE ENTERPRISES

                          [2018] 1 S.C.R. 491                                 491


          R. K. ARORA GENERAL MANAGER & ANR.                                  A
                                    v.
                       M/S ACE ENTERPRISES
                    (Civil Appeal No. 1820 of 2018)
                         FEBRUARY 07, 2018                                    B
                       [KURIAN JOSEPH AND
             MOHAN M. SHANTANAGOUDAR, JJ.]
       Contempt of Court – Contempt petition – Maintainability of –
On facts, allegation of violation of injunction order – Application
by respondent for initiating contempt – Dismissal of the application          C
by the trial court holding that there was no contempt – High Court
held that Sub-Judge assumed a jurisdiction, not vested in it under
law – On appeal, held: Though an application for contempt was
filed before the trial court, it was, in fact, a petition for taking action
u/Or. XXXIX, r.2A of the 1977 Act – It is not a case for initiating           D
contempt on the face of it – These are two different jurisdictions,
which has been clarified by the High Court – Application filed by
the respondent for initiating contempt to be treated as an application
for taking action u/Or. XXXIX, r. 2A of the 1977 Act – Jammu and
Kashmir Code of Civil Procedure Act, 1977 – Or. XXXIX, r. 2A
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      Disposing of the appeal, the Court
      HELD: 1.1 Though an application for contempt was filed
before the trial court, it was, in fact, a petition for taking action
under Order XXXIX Rule 2A of Jammu and Kashmir Code of
Civil Procedure Act, 1977. It is not a case for initiating contempt
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on the face of it. These are two different jurisdictions. That is all
that has been clarified by the High Court. It is directed that the
application filed by the respondent for initiating contempt would
be treated as an application for taking action under Order XXXIX
Rule 2A of the 1977 Act. The trial court would first see whether
there is any disobedience of the order of injunction and in case              G
there is a finding of disobedience, the rest u/Or. XXXIX r. 2A
alone shall follow.[Para 7][495-F-H; 496-A]
     1.2 The submission made by the appellants regarding
separate contracts and pending application under Section 8 of
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                                   491
492              SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A     the Jammu and Kashmir Arbitration Act etc. are open to the
      appellants to canvas before the trial court at the appropriate stage.
      Being a matter pending since long, the trial court is directed to
      decide the application expeditiously. [Para 8][496-B-C]
              CIVIL APPELLATE JURISDICTION: Civil Appeal No.1820 of
B     2018.
            From the Judgment and Order dated 16.12.2015 of the High Court
      of Jammu and Kashmir at Srinagar in OWP No.377/2014.
            Tushar Mehta, ASG, Rahul Narayan, Ms.Mala Narayan, Sushant
      Goel, Advs. for the Appellant.
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              Ms.Aishwarya Bhati, Adv. for the Respondent.
              Respondent-in-person.
              The Judgment of the Court was delivered by
              KURIAN, J. 1. Leave granted.
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             2. On 22.06.2011, the Court of Small Causes, Srinagar, passed an
      order of injunction in the following terms :-
              “The application in hand will not be allowed, there are chances
              that the suit of the applicant will become infructuous. So in
E             the interests of justice the application in hand is allowed and
              the proceedings before the arbitration with regard to matter
              titled M/s ACE Enterprises Vs. Union of India and ors is stayed
              till the objections from the other side is filed. Put up this file
              on 26-07-11.”

F            3. Alleging violation of the above order, an application was filed
      for initiating contempt proceedings. The prayer reads as follows :-
              “It is therefore prayed that the contempt proceedings may
              please be intiated and the contemnors be punished according
              to law and the order of revival passed by the Arbitrator may
G             please be stayed.”
            4. The Court of Small Causes treated the application filed by the
      respondent as an application for contempt without mentioning any
      provision. It is also significant to note that even the applicant had not
      mentioned any provision for initiating contempt. The Court passed an
      order dated 06.11.2013 by entering a finding that there is no contempt
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       R. K. ARORA GENERAL MANAGER v. M/S ACE                                 493
                ENTERPRISES [KURIAN, J.]

and that there is no violation of the order dated 22.06.2011. The operative   A
portion of the order, to the extent relevant, reads as follows :-
      “The proceedings of the arbitration continued by the
      Arbitrator, is based on the understanding of the Arbitrator
      and the learned counsel for the defendants as to the correct
      import of the order dated 22-06-2011. The said understanding            B
      arrived at, though is borne out from the facts and
      circumstances pertaining to the controversy, cannot be
      construed as willful and deliberate attempt on the part of
      counsel for parties involved, to flout the order of the court
      dated 22-06-2011. The arbitration proceedings is an
      independent and statutory remedy available under the                    C
      provisions of Jammu and Kashmir Arbitration Act, 2002. The
      provisions of said Act have overriding effect over the general
      laws. Exercise of statutory remedy and proceedings under
      the special act, cannot be scuttled in ordinary course of events.
      Only if the statute provides for such exercise of power by the          D
      civil court, the civil court can enter into the domain of such
      jurisdiction, that too in limited sphere.
        The exercise of jurisdiction by the Arbitrator, available under
      the provisions of Jammu and Kashmir Arbitration Act, advise
      rendered by the learned counsel representing the defendant              E
      in the court or before the Arbitrator, and proceedings initiated
      by any party in exercise of statutory right, cannot be
      construed as flouting of the order of the civil court or willful
      or deliberate violation of the order, unless the violation is
      clear, emphatic and apparently willful and deliberate, aimed
      at defeating the order passed by the court. From the nature             F
      of the order passed by the court of Sub-Judge/Judge Small
      Causes Court, Srinagar, and the facts and circumstances
      pertaining to the case, I find no flouting or violation of the
      order dated 22.06.2011, by the persons named in the contempt
      application. No justifiable and sufficient ground exists for            G
      proceedings against the said named persons for contempt of
      court. Accordingly, the contempt proceedings are dropped
      against the said named persons. Application is dismissed.
      Record of application be made part of suit file on completion.”

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494            SUPREME COURT REPORTS                        [2018] 1 S.C.R.


A           5. That order was challenged by the respondent before the High
      Court. The High Court has considered the matter in extenso. At
      paragraphs 11, 13 and 17, the High Court has entered its findings as
      follows :-
            “11. Admittedly, the impugned order has been passed by the
B           learned Sub-Judge in a contempt petition filed by the
            petitioner. The Jammu and Kashmir Contempt of Courts Act,
            1997 (Act No. XXV of 1997) (for short, Contempt of Courts
            Act) was enacted to define and limit the power of certain courts
            in punishing contempt of courts and to regulate their
            procedure in relation thereto. There is no provision in this
C           Act to empower a subordinate court to punish contempt of
            itself. However, Section 10 of the Contempt of Courts Act
            vests with the High Court the power to punish contempts of
            subordinate courts. It says that the High Court shall have
            and exercise the same jurisdiction, powers and authority in
D           accordance with the same procedure and practice, in respect
            of contempts of courts subordinate to it as it has and exercises
            in respect of contempts of itself; provided that the High Court
            shall not take congnizance of a contempt alleged to have been
            committed in respect of a court subordinate to it where such
            contempt is an offence punishable under the Ranbir Penal
E           Code, 1989. Thus, the law provides that if there is contempt
            of any court subordinate to the High Court, it is the High
            Court alone which has the power to punish for such contempt.
            Essentially, therefore, a court subordinate to the High Court
            cannot take cognizance and initiate proceedings to punish
F           for contempt of itself, the question of conducting trial of an
            application for contempt and taking a decision thereon is far
            remote.
            13. Since the subordinate courts do not have the jurisdiction
            to take cognizance of contempt of itself, or initiate proceedings
G           on a contempt petition or try it, it cannot proceed to decide it
            finally. In the instant case, the learned Sub-Judge has not
            only taken cognizance but has proceeded to initiate, and
            conducted, proceedings thereon and finally decided it.
            Thereby the learned Sub-Judge has assumed a jurisdiction,
            not vested in it under law.
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       R. K. ARORA GENERAL MANAGER v. M/S ACE                               495
                ENTERPRISES [KURIAN, J.]

      17. During the course of arguments of this case, the learned          A
      counsel for the petitioner brought it to the notice of the Court
      that the Arbitrator appointed in violation of the ad-interim
      orders of the trial court has ultimately concluded the
      proceedings and passed the final award against the interests
      of the petitioner. Pending decision in the contempt petition in
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      terms of applicable laws, there shall be stay of final award.
      It hardly needs a mention here that in the event it is found
      that there has been a violation of the interim order of the trial
      court, the appointment of the Arbitrator and the proceedings
      conducted by him together with any award passed by him
      would be rendered non-est in the eyes of law.”                        C
      6. When the matter came up before this Court, the following order
was passed on 18.04.2016 :-
      “Though we do not have any quarrel with the settled position
      of law, as held by the High Court that the trial court does not
      have any jurisdiction to initiate proceedings under the Jammu         D
      and Kashmir Contempt of Courts Act, 1997, we find that the
      High Court has omitted to take note of the fact that there are
      two separate proceedings under different contracts.
      In that view of the matter, issue notice.
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      In the meantime, there shall be stay of further proceedings
      pursuant to the impugned order.”
       7. Having heard Mr. Tushar Mehta, learned Additional Solicitor
General, and Mr. Abdul Rehman, representing the respondent on
permission, we do not feel it necessary to refer to any other factual       F
details. Though an application for contempt was filed before the trial
court, it was, in fact, a petition for taking action under Order XXXIX
Rule 2A of Jammu and Kashmir Code of Civil Procedure Act, 1977. It
is not a case for initiating contempt on the face of it. These are two
different jurisdictions. That is all that has been clarified by the High
Court. The appeal is, hence, disposed of with the following directions :-   G
       i) The application filed by the respondent for initiating contempt
shall be treated as an application for taking action under Order XXXIX
Rule 2A of the Jammu and Kashmir Code of Civil Procedure. It shall be
renumbered accordingly.
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496                SUPREME COURT REPORTS                       [2018] 1 S.C.R.


A           ii) The trial court shall first see whether there is any disobedience
      of the order of injunction and in case the court enters a finding of
      disobedience, the rest under Order XXXIX Rule 2A alone shall follow.
             8. The submission made by the appellants regarding separate
      contracts and pending application under Section 8 of the Jammu and
B     Kashmir Arbitration Act etc. are open to the appellants to canvas before
      the trial court at the appropriate stage. It will also be open to the
      respondent to take all available contentions before the trial court. Being
      a matter pending since long, we direct the trial court to take a decision
      accordingly on the application expeditiously and preferably within a period
      of three months from the date of receipt of a copy of this Judgment.
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              No costs.


      Nidhi Jain                                                 Appeal disposed of.


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