2011 PLP 1449 (MLD)

ABDUL WAHEED KHAN, J.

This appeal has been directed against order dated 4-5-2009 passed by Addl. District Judge, Faisalabad whereby Muhammad Aslam, appellant was convicted to suffer four months' S.I for committing wilful violation of appellate Court's order dated 4-5-2009 while alienating the house in question in favour of respondent No.3.

2. Brief facts for the disposal of this appeal are that Muhammad Nazeer respondent No.1 filed a suit for specific performance of contract against the present petitioner Muhammad Aslam. The suit was accompanied by an application for temporary injunction with a prayer restraining the defendants from dispossessing him and also from alienating the property. The said application was allowed by the Civil Court to the extent of possession and the same was dismissed to the extent of further alienation. The said order was assailed by way of appeal which came up before Mr. Muhammad Hussain Maikan, ADJ and the same was allowed vide order dated 31-7-1995 with the result that the application for temporary injunction filed by Muhammad Nazir was accepted.

3. The plaintiff/respondent filed a contempt application on 21-5-2007 that Muhammad Aslam (the present appellant) sold the shop in question to one Subah Sadiq in violation of the order of the appellate Court dated 31-7-1995. The said application was contested and issue No.1 was decided against the present appellant and while deciding Issues Nos.2 and 3, the learned ADJ passed the impugned order dated 4-5-2009, hence this appeal.

4. The contentions of the counsel for the appellant are that the impugned order is against the law and facts; the suit was adjourned sine die on 16-12-2005 by Civil Court for the reason that some proceedings were pending before the High Court and the suit was restored on 26-5-2007. According to him the appellant was of the view that since suit was adjourned sine die, therefore, there exited no stay order in the field, and thus, he sold the house during the period, when the case remained adjourned sine die and that he did not wilfully violate the order of the appellate court and that no charge was framed and thus the impugned order is liable to be set, aside.?????

5. Conversely, the contentions of the counsel for the respondents are that since the appellant has admitted the fact of selling the suit property, therefore, there was no need of framing of any charge and recording of any evidence and the learned ADJ has rightly convicted him vide the impugned order.

6. Arguments of the counsel for the parties have been heard. The learned ADJ initiated proceedings against the appellant under Order XXXIX, Rule 2(3), C.P.C. for wilful violation and disobedient of order dated 4-5-2009. Order XXXIX, Rule 2(3), C.P.C. contemplates that in case of disobedient or breach of any such term of Court granting an-injunction:- (a) the Court may order the property of the person guilty of such disobedience or breach to be attached and (b) may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the Court directs his release.

7. In view of the above proposition of law, the Addl. District Judge was not competent to convict the appellant in disobedient or breach of injunctions granted by the appellate Court. At the most the Court could attach the property of the person guilty of disobedience or detain him in prison as a preventive measure. Even for awarding the penalty of attachment of the property and the detention in civil prison, a show-cause notice upon the person guilty of disobedience was necessary. For the reasons stated above, the impugned order of the conviction of the appellant is set aside and the matter is remanded to the appellate Court for further proceeding with the matter in the light of the aforesaid reasons. H.B.T./M-922/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.