Principle Of Merger Should Not Be Applied Absolutely In Contempt Cases: Kerala High Court Overrules 2011 Decision

The Kerala High Court on Tuesday held that the principle of merger is not universally applicable to contempt cases and that its application varies depending on the nature of the appellate or revisional order and the statutory provisions conferring jurisdiction. 

A Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha added that applying it absolutely could lead to anomalies.

"The principle of merger is not a principle of rigid and universal application and its application depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction. If this principle is applied absolutely, it will lead to anomalous situations."

This case involved allegations of wilful disobedience of a direction issued by a Single Judge, which was affirmed by the Court upon appeal. 

When the matter came up for admission, the Bench expressed doubts about whether the doctrine of merger could be applied absolutely to contempt proceedings.

Advocates Shaji Thomas, Mohan Pulikkal and Jen Jaison appearing for the petitioner relied on a Single bench decision in Abin Suraj v. Joseph, 2011(3) KLT 488 to argue that the judgment of the appellate court merges with the decision of the Single Judge, making the enforceable decision the one from the appeal. Thus, the petitioner contended that the proceedings were perfectly in order. 

Senior Government Pleader Vinitha B. appeared for the respondents in the matter.

The Division Bench relied on Mariamma Thomas v. Vijayanand I.A.S., 2019 (1) KLT 249, where another single bench held that if an order gets simply affirmed, or if the appeal is dismissed summarily, the order to be complied with is the primary one and on its violation, the beneficiary can maintain contempt proceedings before the Bench of the first instance. However, if the appellate court modifies the order, fresh contempt proceedings should be initiated before the appellate court. 

Thus, while Abin Suraj applied the principle of merger absolutely, Mariamma Thomas held that it applies to contempt proceedings only if it serves the interests of justice.

After considering both perspectives, the Court endorsed the view taken in Mariamma Thomas and held that the principle of merger should not be applied rigidly in contempt cases, disagreeing with the view in Abin Suraj.

"Needless to say, to the extent it was held in Abin Suraj that the doctrine of merger applies absolutely to contempt proceedings, we are constrained to hold that the principle of law has not been correctly laid down in Abin Suraj."

It clarified its view with an illustration: if an appeal is filed against a Single Judge's decision in a writ petition, and the appeal is dismissed, the contempt proceedings must be dropped, forcing the beneficiary to initiate fresh proceedings before the appellate court for non-compliance. Similarly, if an appellate court allows a writ petition reversing the Single Judge's decision and the Apex Court affirms it, contempt proceedings can only be initiated before the Apex Court.

In the present case, since the Court had merely affirmed the decision of the Single Judge without modifying it, the Court held that the matter should be pursued before the Single Judge who originally decided the case.

Thus, the contempt case was referred back to the Single Judge for further proceedings.

Case Title: Amod Mathew v. A.P.M Mathew & Ors

Citation: 2023 LiveLaw (Ker) 373

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