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PETITIONER:

SPENCER & CO.

Vs.

RESPONDENT:

VISHWADARSHAN DISTRIBUTORS

DATE OF JUDGMENT06/12/1994

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

REDDY, K. JAYACHANDRA (J)

CITATION:

1995 SCC (1) 259 JT 1995 (1) 113

1994 SCALE (5)93

ACT:

HEADNOTE:

JUDGMENT:

The Order of the Court was pronounced by

PUNCHHI, J.- It has been said before, and needs to be said

again, what we are about to through this order, to

strengthen the functional chains which pull the judicial

machine to its destination on the track laid by the

Constitution.

2.We have on our board Special Leave Petition Nos. 12597-

600 of 1993 against the judgment and order dated 29-4-1993

of a Division Bench of the High Court of Judicature at

Madras passed in some CMPs in OSA Nos. 6973 of 1993. These

are at the instance of the first and the second defendant in

the original suit filed by the plaintiff-first respondent,

pending before a learned Single Judge of the High Court, in

which in intra-court appellate jurisdiction the petitioners

have been subjected to certain interim orders of

significance by the Division Bench. This Court on 10-9-1993

ordered issuance of notice in the special leave petitions as

also on the application for stay returnable within four

weeks. On response, and consideration of the counter-

affidavits filed by the respondents and rejoinder affidavits

by the petitioners, we had on 14-1-1994 passed the following

order:

"Let the matter stand by three months. In the

meantime, parties' counsel shall approach the

High Court for an early disposal of the OSA

Nos. 69-73 of 1993 pending before it and

apprise to us on the next date of hearing the

result of it. We have no doubt that the High

Court when approached for the purpose would

give the matter due attention as is expected

by us."

3. In order to await the outcome of the order we had kept

the matter adjourned from time to time when a Division Bench

of the Madras High Court consisting of Hon'ble Mr Justice

Gulab C. Gupta (now Chief Justice

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of Himachal Pradesh High Court) and Hon'ble Mr Justice K.A.

Thanikkachalam passed on 18-8-1994 the following order:

"These applications are filed for fixing early

hearing of the appeal. The order of the

Supreme Court dated 14-1-1994 in Special Leave

Appeal (Civil) No. 12597-600/93(AN) is

produced before us to support the aforesaid

prayer. We have considered the matter with

the seriousness it deserves; but find nothing

important so as to give precedence to the

appeals over large numbers of pending appeals

in this Court. The appellant must take his

chance strictly in order in which he

approached this Court by filing these appeals,

The applications are rejected."

4. Patently our order dated 14-1-1994 has been flouted,

which is a matter of grave concern to us. On our part what

else is expected? It has obvious ramifications, far and

significant. We therefore have on our own solicited the

advice of the Solicitor General of India Mr Dipankar P.

Gupta, besides that of Mr K. Parasaran, Senior Advocate, the

ex-Attorney General of India representing one of the parties

instantly, and Shri G.L. Sanghi, Senior Advocate appearing

for the other parties, as to what step need we take in

respect of the Hon'ble but erring Judges of the High Court.

Conceivably our action has parameters ranging between total

apathy and punishment for contempt after initiating contempt

proceeding. They have, in all seriousness, in one voice,

advised us to show at this juncture judicial statesmanship,

and let the present order go on record, more as a reminder

and a message, travelling far and wide, less as a warning,

solely to uphold and preserve the independence and majesty

of the Supreme Court, as the highest court of justice in the

Sovereign Republic of India; a pillar of the body politic,

established under the Constitution, conferred with plenary

powers under Articles 141, 142 and 144 of the Constitution.

We appreciate and value their advice. We would rather

remain advised on a matter like this, for then we are on

sure ground.

5. The Articles above referred to are reproduced hereafter

as a reminding

exercise:

"141. Law declared by Supreme Court to be

binding on all courts.The law declared by the

Supreme Court shall be binding on all courts

within the territory of India.

142. Enforcement of decrees and orders of

Supreme Court and orders as to discovery,

etc.- (1) The Supreme Court in the exercise of

its jurisdiction may pass such decree or make

such order as is necessary for doing complete

justice in any cause or matter pending before

it, and any decree so passed or order so made

shall be enforceable throughout the territory

of India in such manner as may be prescribed

by or under any law made by Parliament and

until provision in that behalf is so made, in

such manner as the President may by order

prescribe.

(2)Subject to the provisions of any law

made in this behalf by Parliament, the Supreme

Court shall, as respects the whole of the

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territory of India, have all and every power

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to make any order for the purpose of securing

the attendance of any person, the discovery or

production of any documents, or the

investigation or punishment of any contempt of

itself.

144, Civil and judicial authorities to act in

aid of the Supreme Court.- All authorities,

civil and judicial, in the territory of India

shall act in aid of the Supreme Court."

6. Ex facie courtesy is the blend of our order of 14-1-1994.

Outwardly it is neither commanding in nature nor explicitly

in terms of a direction. Such is not the sheen and tone of

our order, meant as it was, for a high constitutional

institution, being the High Court. It comes from another

high constitutional institution (this Court)

hierarchically superior in the corrective ladder. When one

superior speaks to another it is always in language sweet,

soft and melodious; more suggestive than directive. Judicial

language is always chaste.

7. Traditions and norms in this regard, well-established and

followed in this country since time immemorial, are best

reflected in the "Song Celestial", the Bhagavad Gita. It

would for the purpose be apposite to turn to the 18th

Chapter of the Bhagavad Gita, containing the concluding

portion of the dialogue between Lord Krishna, the Best of

Beings, (Purushotamma) and Arjuna, the Best of Humans,

(Narotamma), both superiors in themselves. Verse 63 in the

words of Lord Krishna is:

guhyad guhyataram maya

vimrishayaitad eshneshena

yathecchasi tatha kuru

Translation

Thus I have explained to you the most confidential of all

knowledge. Deliberate on this fully, and then do what you

wish to do.

(emphasis ours)

8. Verse 73 containing the answering words of Arjuna is:

nashto mohah smritir labdha

tvat prasaddan mayachyuta

sthito'smi gata-sandehah

karishye vachanam tava

Translation

O infallible one, my illusion is now gone. I

have regained my memory by Your mercy, and I

am now firm and free from doubt and am

prepared to act according to Your

instructions. (emphasis ours)

For Arjuna, the freedom given to act as he wished to, was an

illusion; acting in conformity with the instructions of

Krishna a bounden duty. This message has perceptibly

percolated down as part of Indian culture, philosophy and

behavioural setting the tenor in the Constitution for

interaction between the

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high constitutional authorities and institutions. One needs

only to be aware of this thought with which the Constitution

is soaked.

9. Recently, on a lesser aberration, this Court in Bayer

India Ltd. v. State of Maharashtra' had occasion to strike a

sad note in the following words: (SCC pp. 31-32, paras 5-6)

"5. We are saddened to notice that in spite of

the Court's request contained in this order

dated 6-2-1991, the High Court has not

disposed of the review petition till now. The

High Court was requested to dispose of the

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said writ petition within four months from the

date of the said order and, at any rate, by

30-9-1991. It is more than two years since

the order was made. While we certainly

respect the independence of the High Court and

recognise that it is a co-equal institution,

we cannot but say, at the same time, that the

constitutional scheme and judicial discipline

requires that the High Court should give due

regard to the orders of this Court which are

binding on all courts within the territory of

India. The request made in this case was

contained in a judicial order. It does no

credit to either institution that it has not

been heeded to. We hope and trust that the

delay in the disposal of the review is either

accidental or on account of some or other

procedural problem. Be that as it may, the

present situation would not have arisen if

only the review petition had been disposed of

within the time contemplated in the order

dated 6-2-1990.

6. In this view of the matter, the IA is

disposed of with the following directions:

(1)We reiterate our request to the High

Court to dispose of the review petition

expeditiously, at any rate within two months

of this order.

(2) (3)

The case which we are dealing with is far more angular

because there is a deliberate and conscious obstruction, put

and recorded by the Hon'ble Judges of the High Court, even

when the judicial order of this Court dated 14-1-1994 was

before them, in support of the prayer for an early durated

hearing of the appeal. The case in hand is of a negative or

reverse action, whereas Bayer India case 1 was barely of

inaction, far less in gravity.

10. The afore-narrated words, we think, presently, are

enough to assert the singular constitutional role of this

Court, and correspondingly of the assisting role of all

authorities, civil or judicial, in the territory of India,

towards it, who are mandated by the Constitution to act in

aid of this Court. That the High Court is one such judicial

authority covered under Article 144 of the Constitution is

beyond question. The order dated 14-1-1994 of this Court

was indeed a judicial order and otherwise enforceable

throughout the territory of India under Article 142 of the

Constitution. The High Court was bound to come in aid of

this Court when it required the High Court to have

1 (1993) 3 SCC 29

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its order worked out. The language of request oftenly

employed by this Court in such situations is to be read by

the High Court as an obligation, in carrying out the

constitutional mandate, maintaining the writ of this Court

running large throughout the country.

11. Therefore, in these circumstances, we upturn the order

of the High Court dated 18-8-1994 and reiterate our request

to it to dispose of OSA Nos. 69-73 of 1993 expeditiously, at

any rate now within one month from the date of communication

of this Order, as this Court awaits the result thereof.

Orders be communicated to the High Court forthwith. Copies

thereof for information be also sent to the Hon'ble Judges

of the Division Bench with our utmost respect.

12. The special leave petitions be listed on 31-1-1995.

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