GOLAM MOH1UDDIN Vs. NURUL ALAM MOLLA

JUDGEMENT

(1.) We have treated the appeal itself as on day's list along with the application, with consent of the learned Advocates for the parties. All formalities in making the appeal ready, including the filing of paper - books are dispensed with.

(2.) We have heard Mr. Maity, learned Advocate for the appellant petitioner, and Mr. Chattopadhaya, learned Advocate on behalf of the contesting respondents - applicants in the contempt proceedings. It appears admitted that the impugned order had been passed by the learned Trial Judge upon a view that the question of granting the alleged contemner any liberty to file any affidavit in the matter did hot arise because even at that stage the contemner could not offer any semblance of explanation to justify or to explain his non - compliance of the Court's order and because of his attitude to the Court's order by repeated refusal to accept the communications containing the Court's order. The Trial Court appears to have found the appellant petitioner guilty of contempt but regarding the punishment to be imposed, the Court fixed up another date. Mr. Maity, learned Advocate, has also raised the question of absence of persons service of the Contempt Rule on his client, the alleged contemner.

(3.) The facts stated above clearly show that the requirements of Rule 19 read with Appendix I, Form I and Rule 29 of the Calcutta High Court Contempt of Courts Rules, 1975, had not been complied with the result that the alleged contemner before being found guilty of contempt cannot be said to have been afforded a reasonable opportunity of being heard. The seriousness and importance of a proceeding of contempt need no special emphasis. There is no finding that the Contempt Rule had been personally served or that due to impossibility of such personal service, the mode of service as prescribed by Rule 23 of the aforesaid Rules, had been followed. A person facing an allegation of contumacious conduct cannot be deprived of such opportunity of hearing though it will be for him and at his risk to refrain from filing any affidavit. Any omission to observe the above procedure goes to the very root of the entire matter and renders the order passed with such omissions unsustainable in law. No case should be treated as a 'closed case' but should be treated as an 'open case' and absence of explanation should not be presumed (vide S. L. Kapoor Vs. Jagmohan reported in AIR 1981 SC 136).