1. This is an appeal under section 10 of the Contempt of Court Act. We have heard the appellant, who is by profession, an Advocate.
2. The brief facts are that two suits were filed in the Court of Mr. Askar Humayoon Ansari, a Civil Judge, who is also exercising powers under the Family-Courts Act. The suits were for dissolution of marriage and recovery of dower. The defendant, in these suits; was admittedly in Saudi Arabia, and, in the circumstances on 18th March, 1982, both the suits were ordered to proceed ex parte. The suits were fixed for judgment on 21st March, 1982, It seems that the defendant, in those suits, was informed by his brother, who was at Karachi, in regard .To the suits, so that the defendant arrived in Karachi on 20th March, 1982, viz. Before the date of judgment.
3. The defendant, in these suits, then filed an application in the Court of Mr. Askar Humayoon Ansari for setting aside the ex parte order. It appears the defendant was not able to get orders to his satisfaction, so that he filed a Transfer Application in the Court of the District Judge for transfer of the said suit to any other Court. The District Judge called for comments on this application from the Civil Judge, and such comments, according to the present petitioner, were "false, frivolous, scandalous and contemptuous remarks against .The defendant's Advocate".
4. On these allegations, an application was filed before this Court under, section 5 of the Contempt of Court Act. Presumably, this was an application under section 4 of the said Act, seeking punishment of the civil Judge. The application, in its body, contained no material, but reliance was placed on the affidavit. All the material, -that was contained in the affidavit, may be reproduced and the same reads as under.:- "(2) That I had moved .a transfer application before the District Judge on 20th March, 1982 whereupon the District Judge had called for comments from the respondent Judge.
(3) That the respondent Judge in his comments passed indecent, scandalous and contemptuous remarks about the applicant which amounts to contempt of Court as defined under section 3 of the Contempt of Court Act, 1976 (certified copy of the comments enclos--ed and marked Annexure "A")."
5. A certified copy of the remarks submitted by the Civil Judge to the District judge in the transfer application was also produced, and the present petitioner makes a grievance at the following portions of the remarks of the Civil Judge :- "It may be mentioned here that my C. O. C. Has informed me that the Advocate who has filed his power in these suits, appeared on 18th March, 198, and. Upon seeing the said. Slips asked him to remove them from the record which, needless to say, he absolutely refused to do.".
6. This case was fixed for hearing on 9th May, 1982, when a notice was issued by Mr. Justice Z. C.
7. Valiani to the Advocate-General, requesting him to appear and assist the Court on the point of maintainability of this application. The matter then came up before the Court on 23rd May, 1982, and the applicant requested for some time to cite some relevant authorities in support of the petition. It was adjourned to 15th June, 1982, when an adjournment was sought by the Additional Advocate-General. Then, the matter was fixed in Court on 8th August, 1982; when the petitioner was absent, but, all the same, Mr. Justice B. G. N. Kazi stated that a chance should be given to the petitioner so that the case was adjourned. On 22nd August, 1-982, the petitioner was again absent, so that the application was dismissed for non-prosecution. An application was made for restoration, and Mr. Justice B. G. N. Kazi restored the case on 12th September, 1982 on the grounds in .The personal affidavit filed by the counsel for the petitioner, explaining the reasons for non- attendance. This matter was, then, fixed on 26th September, 1982, when it was adjourned, as the Advocate-General was not available. On 17th October, 1982, the applica--tion was admitted to regular hearing by Mr. Justice Z. C. Valtani. It came up before the same learned Judge on 24th November, 1982, and it, was dismissed after the petitioner had been called twice since morning, and was not available until 11-40 a. m. The reason for dismissal was non-prosecu--tion. On 1st December, 1982, on the basis of an office note, the order of dismissal was recalled by Mr. Justice Z.
8. C. Valiani. Again on 17th January, 1983, Mr. Justice Budhani passed the following order :- "This application was dismissed on 24th November, 1982 for non--prosecution. On 30th November, 1982 office note was submitted to my brother Z. C. Valiani, J. Who on 1st December, 1982, restored the application. Thereafter, matter was fixed for today and the notice was issued to Mr. Mushtaq Ali the applicant who was duly served according to the endorsement of the bailiff dated 16th January, 1982. Applicant is, however, again absent today. Therefore, the application is dismissed for non- prosecution and in default of appearance of the applicant. Respondent Mr. Askar Humayoon is present."
9. On the same day, when this order was passed, the present appellant had also made an application under section 561-A, Cr. P. C. For restoration of the case. The grounds in support of the prayer for -restoration are contained in the affidavit annexed, which states that the petitioner was absent, because he was suffering from fever, and he had asked his clerk to attend, but, since the case had been transferred to another learned Judge on that day, the clerk was unable to convey the request. However, a notice of this application was given to the Advocate-General. On two occasions, the hearing of this application was adjourned. Ultimately, it has been dismissed by an order of Mr. Justice Ali Nawaz Budhani on 27th March, 1983. The present appeal arises out of that order.
10. It is a grievance of the petitioner that the order, refusing to restore the case, is a harsh order, and needs to be corrected in our appellate jurisdiction. In such regard, one most state that the history of this case exhibits features, which indicate that the petitioner had not been diligent about the progress of the case. This case was dismissed twice, and, on the latter occasion, even the application for restoration failed. We have examined the grounds in the impugned order, and we are satisfied that the learned Single Judge has passed a correct order, refusing to restore the case.
11. However, even on merits, we are inclined to the view that no case under the Contempt of Court Act has been made out. In the original application, that had been made for initiating action for contempt (relevant extracts reproduced above), all that is stated is that the respondent, in his comments, had passed indecent, 'scandalous and contemptuous remarks, a copy whereof has been placed on the record, and these state that the C. O. C., who is the Chief Ministerial Officer in the Court of the Civil Judge, had informed the Civil Judge on an earlier occasion that the Advocate, who had appeared in that case, had also appeared in the office of the Civil Judge on 18th March, 1982- and seen some slips, pertaining to the record of the case. These slips were the acknowledg-- ment due slips from the post office. The learned Civil Judge had only said that he was informed by the C. O. C. That the Advocate had told him to remove the same from the record, which the C. O. C.
12. Had refused to do. In that regard; one must state that the Civil Judge had only conveyed what had been conveyed to him by the clerk. The statement had not been vouchsafed by the Civil Judge, and, in any case, conveying of such information to the superior Court would not amount to contempt, as such a communication will be totally protected, because it has been made in the interest of justice, and it was in relation to judicial process. A total protection attaches to it. The petitioner has also stated before us that, when he appeared before the Civil Judge with an application to set aside the ex parte order, that had been passed on 18th March, 1982 the learned Judge behaved with him in a manner that "ail hopes of justice from him were dupes". We asked the petitioner, who is appearing in person as what were the actual words used by the learned Judge., He has stated that he had asked the Advocate to proceed with the case on the next day viz. On 21st March, 1983, when it was fixed for orders, but the Advocate stated that longer time may be given, which was refused. We fail t understand how even this could amount to contempt. After all, a Court has the power .To adjourn a case, or, to proceed with it, or, even refuse a longer adjournment, and, on such basis, the law of contempt would not be attracted.
13. In any case the statement was relevant to the case.
14. We are of the view that not only the restoration application has bee rightly rejected, but, even on merits, this was not a matter, in which any action waws called for in the exercise of powers under the Contempt of Court Act.
15. We dismiss this appeal in limine.