This Intra Court Appeal under Section 19 of the Contempt of Court Ordinance, 2003 has been filed against the order dated 24.09.2020, passed by the learned Single Judge-in-Chamber in Crl.Org.No.43053 of 2020, filed by the respondent.
2. Brief facts of the case are that the respondent imported vehicles which were seized by the Model Collectorate of Customs. The matter was referred to Adjudicating Authority who passed order dated 31.01.2019 against the respondent. The respondent challenged the said order in an appeal before the Customs Appellate Tribunal, who directed the appellants vide order dated 20.02.2020 to release the imported vehicles after receipt of duties and taxes etc. Against the above order the Custom Department filed Tax Reference which is still pending without any restraining order .
The respondent filed the Writ Petition No.30314 of 2020 for the release of his vehicles in light of order passed by Custom Appellate Tribunal dated 20.02.2020. The learned Single Judge-in Chamber while accepting the writ petition directed the appellants vide order dated 15.07.2020 to comply with the order of the Customs Appellate Tribunal dated 20.02.2020 within a period of two weeks. Against the order dated 15.07.2020, the appellants filed Review Application No.34525/2020 which was dismissed by the learned Single Judge-in-Chamber on 30.07.2020.
The respondent filed contempt petition Crl.Org.No.43050/2020 in which the learned Single Judge-in-Chamber vide impugned interim order dated 24.09.2020 afforded an opportunity to the appellants to comply with the order dated 15.07.2020 within one week. Hence, this appeal.
3. We have heard the arguments of learned counsel for the appellants and have gone through the record with his able assistance.
4. The learned Single Judge-in-Chamber , vide order dated 15.07.2020, passed in Writ Petition No.30314/2020, directed the appellants to comply with the order dated 20.02.2020 of the Customs Appellate Tribunal. The operative part of order dated 15.07.2020 is as under: "In this view of the matter , this petition is allowed and the respondents are directed to comply with the direction given by the Customs Appellate T ribunal through its order dated 20.02.2020 within the period of two weeks."
The appellants instead of challenging the above order before the appellate forum, opted to file a Review Application which was also dismissed vide order dated 30.07.2020. The operative part whereof is reproduced as under:- "I am afraid the applicant has not put forward any relevant grounds for review of order dated15.07.2020. It is apparent that the Customs Appellate Tribunal through its order dated 20.02.2020 allowed the appeal filed by respondent No.1 and directed the applicant to release the imported goods of respondent No.1 subject to payment of redemption fine and duties and taxes. Despite passage of sufficient time, the applicant has not been able to obtain any stay order against the decision of the Customs Appellate Tribunal' and as such this Court directed the applicant to comply with the direction given by the Customs Appellate Tribunal. The order passed by this Court on 15.07.2020 does not suffer from any error floating on the surface of the record. This review application is accordingly dismissed."
After having exhausted the selected reme dy of the review , the order dated 15.07.2020, passed in main writ petition attained status of finality and appellants are placed under obligation to comply with the said order . Respondent filed contempt petition Crl.Org.No.43050/2020 in which learned Single Judge-in-Chamber before initiation of regular proceedings for contempt, allowed a week' s time to the appellants to comply with the order passed in the main writ petition, otherwise, the proceedings for contempt shall be initiated. The said order dated 24.09.2020 is reproduced as under: "7. It is thus clear that the petitioner is only required to pay the amounts as per the order of the Customs Appellate Tribunal without furnishing any additional documents. The respondents are prima facie in contempt of order of this Court. This Court while showing restraint grants one week' s time to the respondents to ensure the compliance of order of this Court failing which appropriate proceedings shall be set in motion."
Admittedly order passed in the main writ petition is still in field and same has attained the status of finality as it has not been got reversed from any competent forum and therefore, its compliance in true letter and spirit has to be effected. Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 confers jurisdiction to the superior Courts to punish those persons who commit violation or deny compliance of said order of the Court. Article 204 of the Constitution is reproduced as under:- "204. Contempt of Court.- (1) In this Article, "Court" means the Supreme Court or High Court.
(2) A Court shall have power to punish any person who-
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law , constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court."
In furtherance of the above provision of the Constitution, the Contempt of the Court Ordinance, 2003 was promulgated. Section 3 whereof describes the contempt of Court which provision is as under:- "3. Contempt of Court.--- Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit "contempt of Court". The contempt is of three types, namely , the "civil contempt", "criminal contempt" and "judicial contempt".
Every superior court has the jurisdiction under Section 5 of the said Ordinance to convict and punish the contemnor in contempt of court.
5. Section 19 of the Contempt of Court Ordinance, 2003 provides a remedy of appeal which provision of law reads as under:- "19. Appeal.- (1) Notwithstanding anything contained in any other law or the rules for the time being in force, orders passed by a superior court in cases of contempt shall be appealable in the following manner:--
(i) in the case of an order passed by a single judge of a High Court an intra-court appeal shall lie to a bench of two or more judges;
(ii) in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court; and
(iii) in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-court appeal shall lie to a bench of five or more judges.
(2) The appellate court may suspend the impugned order pending disposal of the appeal.
(3) The limitation period for filing an appeal shall be thirty days."
6. The main controversy revolves around the word "orders passed in cases of contempt". As the plural word "orders" has been used in the above provision of Section 19 of the Ordinance ibid. It is appropriate to determine whether all kind of orders including interim, interlocutory or the final order passed in contempt proceedings are appealable. As the word orders has not been defined in the very Ordinance, it is appropriate to trace out its meaning from sister legislation as parimateria.
In Section 2(14) of the Civil Procedure Code word order has been described as:- "(14) "Order" means the formal expression of any decision of a Civil Court which is not a decree: According to Order XLIII CPC only the effective, determinative orders are appealable. Normally an order has following characteristics:-
(i) Order which finally resolved the controversy .
(ii) Order which materially and directly affect the final decision.
(iii) The order which causes some inconvenience/prejudice the party without there being any final determination.
(iv) The routine order passed to facilitate the progress in reaching the final order or judgment.
The conjoint reading of definition of word "order" or "orders" provided in Section 2(14) of CPC and in order XLIII CPC, it can be said that word "order" means "the formal expression of any final decision" and any order which is not founded on any decision is devoid of attaining the status of an order . The challenging of each and every interim procedural kind of order will over-flood the litigation and would make the very litigations as well as the proceedings whereunder as unending. This liberty would practically negate the spirit and intent behind the legislation of Article 204 of the Constitution and entire proceedings in original jurisdiction of the superior court (High Court) would become virtually inexecutable and worthless. Only such orders, decisions, judgments which finally terminate the contempt proceedings against the contemnor are appealable. The word "order passed in contempt" means the order only awarding punishment and it is the said order which can be assailed in Intra Court Appeal, whereas the interlocutory interim or procedural orders do not fall within the ambit of the order passed in contempt of court.
Reliance is placed on the case titled West Pakistan Water and Power Development Authority through its Chairman Vs. Chairman, National Industrial Relations Commission (PLD 1979 SC 912) wherein the Hon'ble Supreme Court (Five Members Bench) has held that:- "When therefore, section 10 talks of an "order under this Act" being appealable, in its very nature confining ourselves to the facts and circumstances of the present case, it means an order of conviction and not an order of the kind involved herein."
(emphasis supplied)
Further in M.H.Khondkar and another Vs. The State and another and M.Noman Vs. The Dacca Improvement Trust and 3 others (1971 SCMR 743) one M.Noman filed contempt petition against Dacca Improvement Trust and the said petition was dismissed and a show cause notice was issued to said Noman as to why he should not be punished in contempt of the Court. He challenged the rejection of his contempt petition as well as issuance of show cause notice to him, in the Special Leave to appeal and the Hon'ble Supreme Court of Pakistan dismissed the said petition as such it can safely be observed that matter of the initiation or exonerating the contemnor from contempt proceedings is exclusively between the court and the contemnor and any procedural, interlocutory , interim order passed in this regard do not fall within the domain of Section 19 of the Ordinance, 2003 ibid and no Intra Court Appeal is available against such orders.
7. As a parimeteria in the Indian Contempt of Court Act, 1971, a right of appeal is provided against any order or decision passed by the superior judiciary in its original jurisdiction which provision is as under:- "19. Appeals:-. (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the court;
(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory , such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the appellate court may order that-
(a) the execution of the punishment or order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail; and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).
(4) An appeal under sub-section (1) shall be filed
(a) in the case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."
The question whether any order or decision passed in contempt proceedings would mean every procedural, interim, interlocutory order passed for reaching the main conclusion, is appealable as a matter of right. The issue of availability of remedy of appeal agains t interim, interlocutory , procedural order passed in contempt of court proceedings was resolved by the Supreme Court of India in a case reported as Midnapore Peoples Co-op. Bank Ltd. V. Chunilal Nanda (AIR 2006 SC 2190) wherein it has been observed that in the event of orders refusing to initiate contempt proceedings or initiating contempt proceedings or acquitting / exonerating the contemnor or dropping the proceedings for contempt, appeal would not be maintainable as the appeal under Contempt of Court laws is provided only in respect of orders punishing for contempt. In another case cited as B.N.T aneja (IFS) v.
Bhajan Lal [1988 (3) SCC 26] it has been observed that right of appeal in contempt proceedings is only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. Similar view has been taken in other judgments of Indian Jurisdiction cited as Union of India v. Mario Cabrale Sa (Air 1982 SC 691), State of Maharashtra v. Mahboob S. Allibhoy [1996 (4) SCC 411] and J. S. Parihar v. Ganpat Duggar [1996 (6) SCC 291].
8. Bare perusal of the interim order dated 24.09.2020 shows that the learned Single Judge-in-Chamber on preliminary hearing and before initiation of the legal proceedings in contempt provided an opportunity to the appellants to comply with order dated 15.07.2020. The impugned order is mere a procedural innocuous order in nature which does not inflict any sort of punishment upon the appellants. Such procedural order which does not inflict any penalty or punishment to the contemnor is not appealable, as such, Intra Court Appeal against procedural orders is not maintainable.
9. Today learned counsel for the appellants, while advancing arguments, submitted that the appellants are ready to comply with the order dated 15.07.2020, passed by learned Single Judge-in-Cham ber but due to non-furnishing of the required documents by the respondent, the matter is being delayed. This plea of the appellants stand negated on the principle of approbate and reprobate as on the one hand the appellants have filed reference before the departmental forum, desisted the constitutional petition of the respondent, filed Review Application, contempt petition and also have assailed the interim procedural order of the learned Single Bench through instant Intra Court Appeal, which shows that they are deliberately avoiding to comply with the order and lingering on the matter on one pretext or the other .
10. In view of above, instant Intra Court Appeal is hereby dismissed in limine being not maintainable.