1989 PLP 440 (CLC)

Munir‑ur‑Rehman for Appellant. S.M. .Muslim Naqvi for Respondents. Date of hearing: 15th September, 1988. This application for revision by the Plaintiff arises out of a proceeding under Order XXXIX, rule 2(3) of the Code of Civil Procedure read with section 4 of the Contempt of Court Act, 1976 which was taken against the defendants/ respondents in the following circumstances. The plaintiff instituted a suit in the Court of Vth Senior Civil Judge, Karachi West for declaration, adverse possession and injunction against the respondent No.l and one Gul Rehman praying therein that the respondent No.1 and Gul Rehman in the suit be restrained from interfering with the possession in respect of the premises in occupation of the plaintiff and further be restrained from harassing the plaintiff and claimed adverse possession. The plaintiff also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for issue of temporary injunction restraining the defendants from interfering his possession. The learned trial Court granted status quo order and the same was extended from time to time. The suit was dismissed by the trial Court and the same was restored by the appellate Court on appeal filed by the plaintiff vide order dated 13‑5‑1987. The plaintiff filed petition under section 151, C.P.C. before the trial Court. The Trial Court allowed the petition by order dated 25‑5‑1987 and held that after the restoration of the suit, the status quo order automatically restored. On 10‑6‑1987, the plaintiff filed a petition in the trial Court alleging that the defendants /respondents had deliberately disobeyed the status quo order and started demolishing the suit premises. It is not necessary to state all the other questions which were raised in the Court below for answering the main question that has been raised before me for my decision. The trial Court found on the materials in the inquiry that he held in the matter that order dated 1‑10‑1981 was passed in the absence of the learned counsel for the respondent No.l. He perused the order sheet and found that the order was not served upon the respondents. The suit was restored by the appellate Court and the order dated 25‑5‑1981 was passed in the absence of the counsel for the respondents. This order was not even communicated or served upon the respondents. He held that as the order was neither communicated nor served upon the respondents, as such they had not violated the status quo order and were not guilty of disobedience. It accordingly dismissed the petition. The applicant /plaintiff filed an appeal against the order of the trial Court challenging the order on merits. His plea was that the status quo was served, upon the respondents. The learned IInd Additional District Judge, Karachi West, however, confirmed the finding of the trial Court against the applicant on merits and came to the conclusion that order dated 1‑10‑1981 was passed in the absence of the learned counsel for the respondents, no notice was ordered for the maintenance of the status quo order, even no notice was served upon the respondents. The suit was dismissed for non‑prosecution on 23‑4‑1984. The application ‑‑under Order IX, Rule 13, C.P.C. filed by the plaintiff was dismissed by the trial Court. The plaintiff filed an appeal against the order of dismissal of the application. The appeal was allowed and the suit was restored to its original number. The plaintiff applied to the Trial Court on 25‑5‑1987 for revival of status quo order which was ordered to be restored automatically. The matter was adjourned to 15‑7‑1987. The order was not communicated to the respondents. He also held that S.H.O. Baldia Police Station, D.S.P. and S.D.M. were not parties to the suit. He dismissed the appeal and held that the plaintiff has not made out case for proceeding against the contemners for the alleged contempt of the Court, It is against the judgment of the learned Additional District Judge that the plaintiff has moved this Court in revision. Learned counsel appearing on behalf of the applicant contended that it was mandatory for the Court to punish the respondents/ contemners. Mr. S.M. Muslim Naqvi, the learned counsel for the respondents has supported the judgment of the Courts below. A disobedience of an order of injunction or status quo order is a contempt of the Court. Order XXXIX, Rule 2(3), Code of Civil Procedure provides for the punishment for disobedience of an order of temporary injunction. Once an order has been passed which the Court has jurisdiction to pass, it is the duty of all persons to obey the same so long as it exists. It would tend to subversion of the orderly administration and civil government, if the parties would disobey orders with impunity. Order XXXIX, Rule 2(3) is of a penal character as the person' found guilty of breach of order is liable to imprisonment. As such it was necessary to record that the breach of the order was made with the intention to defy the authority of the Court issuing the injunction or status quo order. If it was not with that intention the party was not liable to be punished under Order XXXIX, Rule 2(3), C.P.C. In order to justify the committal of a person for contempt of Court for breach of an order commanding him not to do a particular act, it is sufficient if there is proof that the defendants had knowledge of the order and he knew that it was intended to be enforced. The materials) on the records of this case clearly establish that order dated 1‑10‑1981. and 25‑5‑1987 were neither communicated nor served upon the respondents. These facts unquestionably lead to conclusion that the respondents had no knowledge about status quo order and even they had no knowledge about the revival of such order. The Courts below have already found that no order was either passed in the presence of the learned counsel for the respondents nor communicated or served upon the respondents. In this case, the Courts below have not thought it proper in their discretion to punish the contemners as they had no knowledge about the status quo order. Sitting in revision I do not think it desirable to interfere with the discretion of the courts below on this account and examine the propriety of the exercise of that discretion by them. In the result I do not find any merit in this application and would accordingly dismiss the same but without costs. The above are) the reasons for my short order dated 15‑9‑1988. M . Y . H . / A‑443/ K Petition dismissed.