2008 PLP 2939 (YLR)

ARSHAD NOOR KHAN, J.

By this order I intend to dispose of C.M.A. No.3166 of 2005, filed by defendant No. 1 under section 3/4 of the Contempt of Court Act read with Article 204 of the Constitution of the Islamic Republic of Pakistan,1973, read with Order XXXIX, rule 2(3), C.P.C. against the alleged contemners, namely, Iqbal Ahmed Qureshi, defendant No. 2 and Shoaibuddin son of Haji Moinuddin, for allegedly having violated the consent order dated 4-9-2002, passed by this Court. The facts leading rise to file the present application in brief are that plaintiff Haji Moinuddin filed suit for declaration and permanent injunction against the defendants, namely, Shafiq Ahmed Qureshi and Meat Merchants Welfare Association, being defendants Nos.1 and 2 respectively and S.H.O. as well as Province of Sindh, being defendants Nos. 3 and 4 respectively, and the suit against defendants Nos. 3 and 4 was dismissed as not pressed, vide order of this Court dated 4-9-2002. The dispute in between the parties remained over collection of blood of slaughtered animals at butcher house, which led to filing of civil suit before the Civil Court as well as before this Court. The plaintiff sought declaration that he is entitled to collect the blood of slaughtered animals from Slaughter House, Landhi, in view of agreement dated 15-1-2002 for a period from 16-1-2002 to 31-12-2002 and also claimed for permanent injunction against the defendants not to interfere in his collection of blood of slaughtered animals. Along with the suit injunction application was also filed. The defendants were served with the notice of the suits as well as injunction application. Defendants Nos. 1 and 2 contested the matter, whereas suit against defendants Nos.3 and 4 was dismissed as not pressed. On 4-9-2002, the injunction application was fixed before this Court for hearing and during the course of arguments, the entire suit was disposed of by consent of the learned counsel for the parties. The consent order, dated 4-9-2002 is usefully quoted herein below for the sake of convenience:- "4-9-2002. Mr. K.A. Wahab, Advocate along with the Plaintiff. Mr. Muhammad Yasin Kiyani, Advocate along with defendant No.1 General Secretary of defendant No.2 present in person. During hearing the injunction application, by consent, the entire suit is disposed of in the following terms: (i) That the defendant No.1 would collect the blood of animals slaughtered by the butchers, who have appointed defendant No.1 as their attorney for the collection of blood. Such collection be done through receipt issued by City Government of slaughter fee. (ii) Defendant No.1 would not interfere in collection of blood by the plaintiff or any body except in respect of the blood of the principal of defendant No.1. (iii) Likewise the plaintiff or defendant No.2 would not interfere in the collection of blood by defendant No.1 on behalf of his principal. The suit has not been pressed against defendants Nos.3 and

4. With the above observations, the suit is disposed of and dismissed as not pressed against defendants Nos.3 and 4. (Sd.) Judge" After long time of the disposal of the suit, defendant No.1 filed present application against the alleged contemners, for having violated the consent order, dated 4-9-2002, alleging therein that in spite of the consent order, the contemners had advertised the auction of collection of blood of the slaughtered animals from Butcher House, Landhi, which was published on 1-1-2005 in daily `Qaumi Akhbar', as such the contemners have wilfully and deliberately violated the consent order, passed by this Court, as such they may be proceeded under the Contempt of Court Act. The alleged contemners have been served with the notice of this application, who have filed their respective counter-affidavits, inter alia, denying therein all the allegations contained in the contempt application and have asserted that no specific instance, of wilfully and deliberately violating the consent order, dated 4-9-2002 has been quoted in the contempt application as such no contempt alleged to have been committed and prayed for dismissal of this application. I have heard Mr. Bilal Aziz Khilji, learned counsel for the contemners, and Mr. Mirza Adil Mustafa Baig, learned counsel for defendant No.1. Mr. Mirza Adil Mustafa Baig, learned counsel for defendant No.1, vehemently contended that the consent order was passed by the Court on 7-2-2002 and in spite of the consent order, passed by this Court, the contemners have published advertisement for auction of the blood of the slaughtered animals at Slaughter House, Landhi, which is flagrant violation of .the order passed by this Court, as such they have rendered themselves liable for penal action under the Contempt of Court. On the other hand, Mr. Bilal Aziz Khilji, learned counsel for the contemners, vehemently refuted the arguments advanced by the learned counsel for defendant No.1 and has contended that neither the consent order has been flouted by the alleged contemners in any manner, nor the consent order was a decree or undertaking to the Court so as to bind the contemners with the Court and in absence of such undertaking the alleged contemners could not be held responsible for having wilfully and deliberately violated the consent order, passed by this Court. In support of his contentions, he has relied upon the case of Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho, reported in AIR (35) 1948 Calcutta 294 and the case of Brig. (Retd.) Muhammad Iqbal Malik and another v. Mst. Iram and 4 others, reported in 1988 MLD 2663. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me. Defendant No.1 has vehemently relied upon the order, dated 4-9-2002, passed by this Court, whereby the entire suit was disposed of by consent of the parties, referred to above. A perusal of the order, dated 4-9-2002, referred to above, without any iota of doubt, shows that the said consent order was in the nature of an agreement in between the parties, whereby the parties to the suit had agreed that they should not interfere in the functioning of each other regarding collection of blood of the slaughter animals. Nowhere it is evident from the consent order, dated 4-9-2002 that the plaintiff or the defendant undertakes to the Court to do the act in the light of the consent order, unless the undertaking given by the parties, is accepted by the Court regarding performance or non-performance of certain things does not tantamount to a decree passed in favour of either party. The order, dated 4-9-2002, therefore, seems to be an agreement in between the plaintiff and defendants Nos.1 and 2 and the said agreement has been reduced into writing before the Court and any violation of terms and conditions of the said agreement could not be treated as wilful and deliberate violation of the order passed by this Court. The order itself shows that no party had submitted any undertaking to the Court to bind himself to abide by the terms and conditions of the consent order, dated 4-9-2002. The order, dated 4-9-2002, therefore, in any way could not be treated as an undertaking submitted before the Court by the parties and the said order at the most could be treated as an agreement between the parties and, in case, any terms and conditions of the agreement, arrived at in between the parties are violated the aggrieved party has to approach to the Civil Court by filing of suit seeking therein the enforcement of the terms and conditions of the consent order, dated 4-9-2002. The same point also came for consideration before Calcutta High Court in the case of Nisha Kanto, supra, wherein the compromise decree in between the parties was held to be an agreement between the parties and any violation of the said decree was observed to have not committed any contempt by the defaulting party. The relevant observation in the case of Nisha Kanto, supra, is usefully quoted herein below for the sake of convenience:-- " ..It appears to me that each case must be decided on its particular facts and upon the precise words in the compromise under discussion and cases are not very helpful unless the words are precisely similar. In the present case, it appears to me, on a true construction of para. 6 of the compromise, that there was nothing more than a solemn promise by the defendant to the plaintiff and the nature of that promise or undertaking could never be changed by reason of the compromise being accepted by the Court and a decree passed in its terms." The observation made in the case of Nisha Kanto, supra, is fully applicable to the circumstances of the present case as in that case also the allegations were levelled against the contemner for having wilfully and deliberately violating the terms and conditions of the compromise decree, but the case in hand is on better footing than the case of Nisha Kanto, supra, for the reason that in the present case no decree was passed and the consent order was passed in the shape of an agreement in between the parties, as such any violation of terms and conditions of the agreement could not be treated as wilfully and deliberate violation of the consent order. In the case of Brig. (Retd.) Muhammad Iqbal Malik, supra, also same point came up for consideration before the Honourable Lahore High Court and it was observed that the compromise terms recorded in the High Court were basically not a part of judicial order in the constitutional petition and the terms of the compromise could be enforced by way of filing a suit in the Civil Court. The relevant observation in the case of Brig. (Retd.) Muhammad Iqbal Malik, supra, is usefully quoted herein below for the sake of convenience:- "(6) With regard to the non-payment of the sale consideration by respondent No.1 to respondent No.5, the petitioners, if aggrieved can take legal action in the Civil Court. The compromise terms recorded in the constitutional petition are basically not a part of the judicial order of the Court on the Constitutional petition. The Constitutional petition was only disposed of in terms of the compromise effected between the parties. If there is a violation of the compromise, the parties should file a suit in the Civil Court." In case the dictum laid down in the case of Nisha Kanto, supra, and the case of Brig. (Retd.) Muhammad Iqbal Malik, supra, are considered in juxtaposition with each other, it would emerge out that the consent decree could not be treated as an undertaking towards the Court, thereby binding the parties themselves for its enforcement and the said terms and conditions of the compromise decree could only be treated as an agreement in between the parties and, in case, if any terms and conditions of an agreement in between the parties have been violated, the remedy for the aggrieved party is not available in filing of contempt proceedings, but the remedy lies for enforcement of such terms and conditions of the compromise decree by way of filing civil suit before the Civil Court. Keeping in view the aforesaid legal proposition involved in the present case, I am of the firm opinion that the order, dated 4-9-2002, passed by this Court was even not a compromise decree in favour of either party and it was merely an agreement in between the parties and, in case, if any violation is alleged, the aggrieved party may approach to the Civil Court by way of filing the suit. Even otherwise, the plaintiff in prayer clause (a) seeks declaration that by virtue of agreement, dated 15-1-2002, are entitled to collect the blood of slaughter animals from Slaughter House, Landhi, from 16-1-2002 to 31-12-2002 and the consent order, reproduced in the former paragraphs of the judgment, could only be treated as valid till 31-12-2002, which was the target, date of end of an agreement, dated 15-1-2002 in between the parties and the violation of the consent order, dated 4-9-2002 has been alleged on 20-4-2005, by filing of the present application, i.e. after about 3-1/2 years from the date of passing the consent order by this Court, whereas the agreement in between the parties, as per prayer clause already comes to an end on 31-12-2002, as such on this ground also no case for contempt has been made out even no specific instance for alleged violation of the consent order, passed by this Court, has been mentioned in the contempt application, as such it appears that the contempt application has been filed for certain ulterior motives. For all the aforesaid reasons and circumstances, I do not find any merit in the present application, which is hereby dismissed. Consequent upon dismissal of the main applications, C.M.As. Nos.1008 of 2008 and 4877 of '2008, which are dependent on the result of contempt application are also dismissed in the light of the observations made hereinabove. M.H./M-127/K Applications dismissed.