1972 PLP 555 (SCMR)

SAJJAD AHMAD, J.‑This petition for special leave to appeal arises out of a civil suit which the petitioner has brought against the Province of West Pakistan and others for recovery of rupees 3 lakhs plus interest as unpaid balance on account of certain irrigation works which it had executed on the basis of a contract with the Government. Along side the suit, the petitioner moved an application under Order XI, rule 14, C. P. C. for production of certain documents which were in custody of the respondents in proof of its case. The Court granted this application on the 25th January 1969, and ordered production in the Court of the required documents. The respondents prevaricated to comply with these orders which led the petitioner to move a petition in the High Court on the 24th October 1970 (Criminal Original Miscellaneous No. I of 1971, under Act XII of 1926), for an action in contempt against the respondents. This application was admitted to a full hearing by a learned Single Judge but no notices were issued to the alleged contemners. Subsequently, the petitioner received a notice from the Court to show cause how the Government could be guilty of contempt and why the order admitting the contempt petition should not be withdrawn. It is submitted by the petitioner that in consequence of this notice and on an erroneous assumption that it could pursue the matter in a criminal action against the respondents under sections 175/40 and 43, P. P. C. in the subordinate Court where the case was pending, the petitioner chose to drop its application for contempt in the High Court. This was allowed to be with drawn. Subsequently on a re‑appraisal of the legal position, the petitioner sought to revive the contempt application in the High Court which was dismissed by a learned Single Judge on the principal ground that after the withdrawal of the first applica tion, the second application was not competent to invoke the extraordinary power of the High Court for taking action in con tempt. It was observed that action in contempt should be resorted to in extreme cases and after due care. Aggrieved by this order, the petitioner has come up to this Court for special leave. In the impugned order, the learned Single Judge has observed :‑ "There can be no gain‑saying the fact that non‑production of documents in a subordinate Court in defiance of the Court's order, if satisfactorily established, will constitute contempt within the meaning of sections 2 and 3 of the Contempt of Courts Act, 1926." The learned counsel for the petitioner has submitted that since in the view of the learned Judge a contempt was committed, he should have proceeded to take action to vindicate the position of the Court regardless of the fact that the petitioner had at an earlier stage chosen not to pursue the matter. Being a glaring case of contempt arising from a clear defiance of the Court's order, it became primarily the duty of the Court itself to assert itself and to purge the contempt. A legal question of considerable importance arises whether the prosecution of a contempt matter initiated by a private party should be left to the sweet will of that party. If such a party chooses to drop it, the Courts will be left with no choice to vindicate their position and the contempt howsoever gross it may be will go unpunished. Leave to appeal is granted. Security for costs in the sum of Rs. 1,000, which shall be deposited in the Court before the appeal is set down for hearing. Leave granted.