ASHIQ HUSSAIN DAR Vs. ATAL DULOO

JUDGEMENT

(1.) When this matter was taken up for consideration Mr Shah Aamir, AAG, sought time to apprise the court about the outcome of the Special Leave Petition filed by the respondents before the Hon'ble Supreme Court challenging the final order/judgment of the Division Bench dated 18.11.2020 passed in LPA no. 136/2020 as also the judgment of the Writ Court passed in WP (C) no. 742/2020 on 19th March, 2020. He submits that the sanction for filing of the leave was granted by the Law Justice and Parliamentary Affairs Department in this behalf. This all is brought on record by the Additional Chief Secretary to Government, Health & Medical Education Department in the statement of facts dated 3.8.2021 filed in compliance to order dated 19.7.2021.

(2.) Mr. Altaf Haqani, learned senior counsel for the petitioners, has resisted the grant of further time to the respondents and submits that there is no scope for granting further time or deferring the proceedings merely because the respondents have filed the SLP before the Hon'ble Supreme Court to challenge the orders of the Division Bench and the Writ Court. Mr Haqani, learned senior counsel, submits that the law on the subject is settled by the Division Bench of this Court in case titled Sajad Majid (Dr.) v. Syed Zahoor Ahmad (Dr.) and Anr. Reported as 1989 CrLJ 2065. Paragraphs 3, 8 and 11, being relevant, are taken note of hereunder: '3. The matter again came up before the Division Bench on 1.3.1989 and for non-compliance of court direction dated 28.11.1989 and for non-observance of the direction dated 16.2.1989 indicated, a show cause notice came to be issued against the respondent No: 1. The contempt petition came up before the Division Bench on 15.3.1989, when objections were filed and in para 11 of the same prayer was made to defer the hearing of the contempt petition pending disposal of the S.L.P., and before the Supreme Court against the order sought to be implemented and allegedly flouted by the respondent No:1. It is out of this objection raised by learned counsel for the respondent, The Division Bench indicated has framed the question: whether a party can be proceeded in contempt or rule issued against him exhausting the time limit for appeal against the order issued by the court sought to be implemented particularly when remedy of appeal is availed and pending disposal before the Superior court. 8. It is not disputed before us that SLP against the Court direction has been filled before the Supreme Court. It is also not disputed that no stay has been obtained against the implementation of the order but all the same the Court direction has been kept in abeyance by the respondent simply under the pretext of pendency of appeal before the apex Court against the Court order. There is no doubt that appeal against a judgment from one forum to another forum may be available under the Statute, the question is : Whether this provision even if availed by a party without obtaining a stay from the appellate Court will ipso facto keep the implementation of the order in abeyance? The proposition put forth by Mr. Khan, CGA appears to us misconstruing the provision of appeal and period of limitation. Non-compliance of the order during the pendency of appeal without stay order appears to us an attempt by a party to support his intention of not complying the Court direction. The, initiation of contempt proceedings for non-compliance of an order, in our opinion, will forestall only after service of stay order on the party provided, firstly, a certain period for compliance has been specified and within that period no contempt proceedings will lie. Secondly, when after the service of order the party has obtained stay from the appellate forum. Thirdly, on motion by the party time is granted by the Court for execution of the order which passed the same. No other circumstances apparently can be made available to a party against whom the order has been passed to sleep over the execution of the order or flout its execution. Mere pendency of appeal before the appellate Court against the order will not absolve the party not to comply the order and if he so does, it will be on his own risk without any legal justification and the provisions of appeal even if availed without any stay, will expose the party to contempt proceedings, for non-compliance and pendency of such appeal will not protect him from facing the proceedings of non- compliance of the order. Once a relief has been granted by a Court not modified or varied by such Court or its execution staved by appellate Court, its compliance is warranted from the date the party against whom it is passed or from the date he acquires knowledge of the said order. This observation will dispose the argument of Mr. Khan having submitted that no time limit is specified in the order of implementation. We, therefore, make it clear that a party against whom order has been passed by the Court, having knowledge of the same or the order being served on him, cannot take refuge of limitation period for preferring an appeal for non-compliance of the order or even if the appeal has been filed but no stay has been obtained against the order, contempt proceedings will be entertained against such party for non-compliance. However, it is the discretion of the Court finally, while holding the defaulting party guilty, to pass appropriate orders looking to the gravity of the matter and conduct of such party, but in no case rebate of non- compliance of the Court order will be made available merely an appeal without stay is sending. We are further supported in our view by the observations made by their Lordships of the Allahabad High Court, reported in 1978 Cri LJ 789, in these words:

(3.) Heard learned counsel for the parties. In view of the stand taken by the respondents, it has become necessary to take a look at the conduct of the respondents. Therefore, orders dated 4.6.2021; 5.7.2021; 15.7.2021 and 19.7.2021 passed in the instant petition are extracted hereunder: