2007 P Cr (PLP)

SAHIB KHAN, J.

Through instant complaint under sections 3/4 of Contempt of Court Act, petitioner Afsar Jan has charged respondents for wilful disobedience of Court order, dated 30-12-2006 passed by Civil Judge/Magistrate 1st Class Gilgit, whereby, the learned trial Judge had asked for production of documents. Arguments pro and contra heard in detail. Record perused. Counsel for the petitioner argued that the learned Civil Judge, Gilgit on 30-12-2006 had passed an order directing respondents for production of certain documents relating to tender. They submitted that respondents wilfully ignored the said order and did not produce the documents on the fixed date thereby they have committed an offence as defined in section 3 and punishable under section 4 of the Contempt of Court Act, 1976. They further submitted that the offence under section 4 of Contempt of Court Act is exclusively triable by this Court under section 5(3) of the said Act. Non-appearance of respondent No.1 before the Court today was also seriously objected by the counsel. The learned counsel in support of their submission referred following laws:-- Sections 3 to 5 of Contempt of Court Act. Counsel for respondents opposed the petition and challenged the maintainability of the petition with the contention that the Judge before whom the alleged contempt was committed is competent to provide remedy for failure if any in compliance of Court order. Accordingly petitioner has already moved an application before trial Court under Order XI, rule 21 of C.P.C. They in support of their contention referred Order XI, rules 12, 14 and 21 of C.P.C. (1988 CLC page 778). It is evident from the record that the learned Civil Judge, Gilgit has passed an order on 30-12-2006 requiring the production of certain documents in the Court on 4-1-2007 by defendants. On 4-1-2007, one of the defendants excused with the plea that the required documents are not in his possession. Petitioner has charged the respondent for the same and initiated the present petition. Counsel for respondent has pointed out that the petitioner/plaintiff has already filed an application before the trial Court for above failure which is pending adjudication invoking certain provision of the Code. The Code of Civil procedure, 1908 is complete Code providing provisions and mechanism for solution of issues arising during the trial of the suits/appeals/revisions etc. These provisions confer powers and jurisdiction to the Courts, relief which can be sought and remedy thereof are embodied therein. Likewise, in the case of non-compliance of any order/failure in compliance of the Court order passed during the trial can be remedied/penalized under the related provisions of Civil Procedure Code, 1908 for instance i.e. one who has been ordered by the Court through a summons for appearance in the Court on a fixed date, or one who was required by the Court for submission of written statement or was ordered for adducing of evidence etc. in case of their failure/non compliance would be dealt with the provisions of Contempt of Court Act, 1976 or any other law enforced for time being? In my humble opinion, all the situations including the order passed on 30-12-2006 by Civil Judge Gilgit shall be dealt with in accordance with the provisions of C.P.C. including by application of penal clauses if provided therein like Order IX, rule 6, Order XVII, rule 3, Order XXXIX, rule 2(3) etc. In case there exists no penal provision for certain acts or omissions in the Code. It is presumed that no person or party can be penalized for such act/omission against the wisdom of Legislature. The learned counsel for petitioner pressed that this Court has got exclusive jurisdiction to try the matters or disobedience under sections 3/4 of Contempt of Court Act and lower Courts have no power to punish the disobedient. Although this point is not related with the matter in hand however, to clear the mind I reproduce the relevant clause of Contempt of Court Act, 1967 which is self-explanatory. Section 5(3). A High Court shall exercise the same jurisdiction in respect of contempt of Courts subordinate to it or to any other High Court as it exercises in respect of contempts of itself. The nutshell of the discussion is that petitioner can seek relief from the Court trying the main suit, under the relevant provisions of C.P.C. subject to availability of provision, if so advised. Petition dismissed in limine being non-maintainable. N.H.Q./12/Glt. Petition dismissed.