TILAK RAJ MISHRA Vs. COURT ON ITS OWN MOTION
LAWS(HPH)-1997-4-1
HIGH COURT OF HIMACHAL PRADESH
Decided on April 18,1997

TILAK RAJ MISHRA Appellant
VERSUS
COURT ON ITS OWN MOTION Respondents

JUDGEMENT

M.Srinivasan, C.J. - (1.)It is very unfortunate that the learned Single Judge has proceeded to punish the appellant for contempt of Court without recording any evidence in order to arrive at the factual findings that the appellant is guilty of such contempt. The only material on record is the return of Process Server in which she has stated that when the summons was tendered to the appellant he refused to receive the same. What the appellant has pointed out in the reply is that on the same day and at the same time, he had received the summons in the main proceedings, namely, C.M.P. (M) No. 181/93. He has also produced along with reply a copy of the said summons to show that he had received the said summons without any demur. What has been returned to the Court is the notice in C.M.P. No. 28/9, which is an interlocutory application pending disposal of C.M.P. (M) No. 181/ 93. According to the appellant, both the summons were brought to him. He received the other summons and when he received the summons in CMP No. 28/ 93 he made an endorsement acknowledging the receipt of the same to the effect that he had received the same with enclosures. His signature is also found on nw return made by the Process-Server. According to the appellant, he was taking his food as it was lunch hour but the Process Server insisted upon him to make an endorsement mentioning the total number of paces received by him. He requested the Process-Server to wait till he finished his lunch. It is also stated by him that he informed the Process-Server that the endorsement already made by him namely received with enclosures, would serve her purpose and there is no necessity to mention the total number of pages. At that stage the Process-Server refused to wait and also got the endorsement struck off by him and returned the summons to the Court with a report that he refused to receive the summons.
(2.)The minimum that the Court could have done in the circumstances is to examine the Process Server before the Court and give an opportunity to the appellant to cross-examine the said Process Server. The Court has proceeded on an, assumption that what has been stated by the Process- Server is true and what has been stated by the appellant in his reply is false. Such an assumption is wholly unwarranted particularly when it is a matter of contempt which is of a very serious nature. The burden is on the person who alleges contempt to prove that such a contempt was committed. It is too well known that the proceedings in contempt are a sort of criminal proceedings and quasi criminal if not fully criminal proceedings. In such a situation the Court should have taken care to ascertain whether the burden has been discharged and there is sufficient proof before the Court that the respondent is guilty of contempt.
(3.)In the absence Many evidence, we cannot agree with the conclusion arrived at by the learned Single Judge that the appellant is guilty of contempt. On the other hand, what is stated by the appellant in the reply appears to be true in view of the fact that the appellant had received summons in the main case at the same time brought by the same Process-Server. There is no explanation in the report of the Process-Server as to how the appellant received one summons and refused to receive the other summons.


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