SHENZEN KONKA TELECOMN Vs. A2VP DISTRIBUTORS P LTD

JUDGEMENT

(1.) BOTH these Appeals assail the Order dated 28. 8. 2009 of the learned Single Judge which ostensibly allows an application under Order I Rule 10 of the Code of Civil Procedure, 1908 ('cpc' for short) filed by the Petitioner in CCP No. 59/2006 but, in actual legal effect, merely issues notice to the freshly mentioned alleged contemnors. Behind the smoke screen of the application for impleadment of parties, avowedly created by the respondent, the prayers in the application is for the issuance of notices to the newly added parties to show cause as to why contempt proceedings be not initiated against them. If the appeal were to be allowed, it would tantamount to mandating that a notice to show cause as to why contempt proceedings should not be initiated against a party should precede or be a prelude to the issuance of a notice to show cause as to why contempt proceedings should not be initiated. This is a tautological situation and, therefore, the Objections of the appellant defy logic.

(2.) IN Purshotam Das Goel vs- B. S. Dhillon, AIR 1978 SC 1014 the main question which had fallen for decision was whether an order merely initiating contempt proceedings by issuance of a notice under Section 17 of the Contempt of Courts act, 1971 ('contempt Act' for short) could be assailed by way of an Appeal. The contention that had been canvassed was that that Appeal was barred by limitation by virtue of Section 20 of the Contempt Act after the expiry of one year from the date on which the contempt was alleged to have been committed. It was in that context that the law was enunciated in the following passage:-It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt. The proceeding is initiated Under Section 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the high Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the High Court to drop the proceeding. It is neither possible, nor advisable, to make an exhaustive list of the type of orders which may be appealable to this Court under Section 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lal, to Section 20 of the Act which provides : 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. He submitted that initiation of the proceeding by the High Court will be without jurisdiction if it is in violation of Section 20. It may be so. If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred under section 20 of the Act but the High Court holds that the proceeding is not barred, it may well be that an appeal would lie to this Court under Section 19 from such an order although the proceeding has remained pending in the High court. We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermittent stage in the proceeding may be appealable under Section 19. In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right under Section 19. In a given case special leave may be granted under Article 136 of the Constitution from an order initiating the proceeding. But that is entirely a different matter. What we are deciding in this case is that the present appeal filed under Section 19 (1) of the Act does not lie and is incompetent. (Emphasis supplied)

(3.) THE same conclusion has been arrived at in Union of India vs- Mario Cabral e Sa, AIR 1982 SC 691 and Midnapore peoples' Coop. Bank Ltd. vs- Chunilal Nanda, (2006) 5 SCC 399.