1996 PLP 1823 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

Leave was granted in the above case to consider the following legal contentions:

"Leave to appeal is granted to examine whether a prohibitory order not directed towards a party (the petitioners) could be utilized for punishing on the assumed knowledge of an Attorney subsequently appointed by them.

2. Implementation of the impugned order is stayed meanwhile. " The facts relevant for disposal of the above appeal are that Imam Din, the predecessor-in-interest of the appellants, instituted a civil suit for declaration and injunction before the Civil Judge, Faisalabad, on 9-5-1983. This suit was decreed in favour of Imam Din ex parte on 8-10-1986. Imam Din by a deed executed on 3-12-1986 gifted the suit land in favour of the appellants. The respondent filed an application for setting aside the ex parte decree in the suit on 2-7-1987. Alongwith the application for setting aside the ex parte decree, the respondent also filed an application for grant of interim injunction against the plaintiff. On the interim application filed by the respondent/defendant in the suit, the Court on 2-7-1987 ordered status quo. On 28-3-1990 the respondent moved an application under Order XXXIX, Rule 2 (3), C.P.C. alleging violation of the status quo order granted by the Court on 2-7-1987 and prayed that contempt of Court proceedings be drawn against Imam Din. Imam Din died on 24-11-1990 whereupon by order dated 21-1-1991 the present appellants were brought on record in place of Imam Din. By 2 separate orders dated 16-5-1991, the Civil Judge, Faisalabad, disposed of the 2 applications filed by the respondent, namely, one under Order IX, Rule 13 and other under Order XXXIX, Rule 2 (3), C.P.C. By the first order, the Civil Judge accepted the application under Order IX, Rule 13, C.P.C. filed by the respondent and recalled the ex parte decree dated 8-10-1986 with the direction that the proceedings will commence from the stage at which ex parte proceedings were taken against the respondent. By the second order, the Civil Judge after recording evidence of the parties came to the conclusion that the installation of the factory and construction raised thereon, was done by late Imam Din in violation of the status quo order dated 2-7-1987 and accordingly, the Civil Judge directed that the construction raised on the suit land and machinery installed thereon in violation of the order dated 2-7-1987 is liable to be removed and Robkar was issued accordingly. The appeal against the order of Civil Judge directing removal of construction and machinery from the suit land was dismissed by the Additional District Judge, Faisalabad, by order dated 23-5-1991. The Civil Revision Petition filed by the appellants against the order of Additional District Judge met the same fate when it was dismissed by the learned Judge in Chambers by order dated 19-12-1992. Leave was granted against the judgment of High Court as aforesaid. From the facts stated by the learned counsel for the parties at the Bar, it is quite clear that the deceased Imam Din predecessor of the appellants though claimed to have transferred the land in suit to the present appellants on 3-12-1986, but this fact was neither disclosed by the said Imam Din to the trial Court in his reply to the application under Order IX, Rule 13, C.P.C. filed by the respondent for setting aside ex parte decree, nor he stated the alleged gift in favour of the appellants in his reply to the injunction application filed by the respondent before the trial Court. The trial Court in order to ascertain the factual position with regard to violation of the injunction order in the case appointed a local Commissioner who inspected the site and submitted his report to the trial Court. The trial Court also framed a specific issue on the allegation regarding violation of the injunction order and recorded evidence thereon. In the light of the evidence recorded by the trial Court and the report of Commissioner, the trial Court reached the conclusion that late Imam Din had violated the status quo order granted by the Court on 2-7-1987 by raising construction on the suit land and by installing a factory thereon. Late Imam Din, having suppressed the fact relating to the transfer of suit land by him in favour of appellants during pendency of the suit could not take advantage of the same. Similarly, the construction on the suit land and installation of the factory thereon, having taken place during the subsistence of status quo order; the same was liable to be removed. It was also rightly observed by the trial Court that the violation of the injunction order having been committed by late Imam Din, who has since died, the present appellants cannot be held responsible for any criminal liability arising out of the violation of the injunction order issued by the Court. At this stage of the proceedings, the learned counsel for the parties state before us that as a matter of fact an ice factory is running on the plot which has been constructed in violation of the injunction order. The Attorney of the appellants and the learned counsel offered an undertaking in Court that in case their suit is dismissed on merits, the appellants at their own cost shall remove the construction and machinery from the plot and vacate the land in suit. The learned counsel for the respondent accepted the above undertaking and stated that he has no objection if the appeal is disposed of in terms of the above statement. The exact undertaking given by the appellants in writing in Court and the no objection of respondent's counsel thereon; is as follows:

Civil Appeal No. 472 of 1993 Sharifan Bibi and another

Appellants versus Allah Bux

Respondent The appellants undertake to vacate the land in dispute within 15 days from the dismissal of the suit suo motu at their own cost after removing the structure, machinery etc. Appellants will not stand in the way of delivering possession of the land in the exercise of utilizing their right of appeal in case of dismissal of the suit. (Sd.) 6-3-95 Appellants through Rehmat Ali Attorney 245-37-003304 (Sd. ) Hakam Qureshi Dated: 6-3-1995 . Advocate, Supreme Court for the Appellants I have no objection if the abovenoted appeal is disposed of in the terms of the above undertaking given by the appellants, their Attorney and learned counsel. (Sd.) Ch. Muhammad Ashraf, Advocate, Supreme Court for the Respondent." Dated:6-3-1995. We are inclined to accept the statement made by the appellants and accepted by the respondent, as it would dispose of the appeal in the best interest of the parties. The undertaking reproduced above is accordingly, recorded and the order of the High Court is modified in terms of the undertaking referred to above. The appeal stands disposed of accordingly, with no order as to costs. A.A./S-965/S Order accordingly