Research › Search › Judgment

Allahabad High Court · body

2005 DIGILAW 128 (ALL)

O. P. S. Malik v. Naresh Chandra Kapoor

2005-01-27

S.RAFAT ALAM, VIKRAM NATH

body2005
S. RAFAT ALAM, VIKRAM NATH, J. ( 1 ) THIS contempt appeal is preferred against the order of the learned Single Judge dated 27. 1. 2004 (reported in 2004 (1) ARC 450 ) rejecting the application of the appellants for recalling of the order dated 14. 5. 2002. ( 2 ) WE have heard Sri U. N. Sharma, learned Counsel appearing for the appellants and Sri S. C. Dwivedi, learned Counsel for the sole respondent. ( 3 ) IT appears that a contempt proceeding was initiated against the appellants alongwith others and by order dated 14. 5. 2002 the appellants were directed to appear in person. Being aggrieved with that order an application was moved on behalf of the appellants to recall the same on the ground, inter alia, that the proceeding is time barred and, therefore, no cognizance can be taken of the alleged contempt. The learned Single Judge vide order dated 27. 1. 2004 rejected the application to recall the order dated 14. 5. 2002 which is impugned in this appeal. ( 4 ) LEARNED Counsel for the appellants submits that the writ petition was subsequently dismissed and, therefore, the interim order passed in that petition merged in the final order. Thus, there is no question of the alleged violation or disobedience of the order dated 16. 3. 1993 In the writ petition and as such, no case for contempt is made out. ( 5 ) ADMITTEDLY, the contempt petition is still before the learned Single Judge and only notice is issued to the contemnor and by the order impugned in this appeal the application to recall that order is rejected which is not a final order. An appeal under Section 19 of the Contempt of courts Act (for short the Act) lies against a final order passed in the contempt petition. We are of the view that an order merely initiating contempt proceeding by issuing a notice to appear in person under Section 17 of the Act does not amount to deciding as to whether the alleged contempt is committed or not and thus, it is not appealable under Section 19 of the Act as of right. Section 19 of the Act is attracted only when a final order in a contempt proceeding is passed. Section 19 of the Act is attracted only when a final order in a contempt proceeding is passed. ( 6 ) THE defence against the alleged contempt at the first instance is to be taken before the learned single Judge dealing with the contempt matter and the contemnor cannot be permitted to bye pass that Court and prefer appeal raising his defence against the alleged contempt. In the instant case, the defence of the appellants against the alleged violation or disobedience of the order of this Court is yet to be examined and considered by the learned Single Judge and, therefore, it is still open to the contemnor to urge the points raised in this appeal before the learned Single judge in the contempt proceeding and only when final order is passed, an appeal could be preferred. ( 7 ) WE, accordingly, dismiss this appeal at this stage on the ground that it is not maintainable. It would, however, be open to the appellants to raise all points before the learned Single Judge at the time of final hearing of the contempt petition. . .