2004 PLP 2050 (YLR)

Rashid Rizvi exercising right of rebuttal contended that, the Power of attorney produced before the learned Rent Controller, was found to be fictitious by the Registrar T. Division, therefore alleged power of attorney executed in favour of Sub‑attorney Muhammad Anis, has no legal sanctity at all, Mr. Rizvi, produced original NIC (original seen and returned) of Abdul Karim (defendant No.3), who was also present in person, to demonstrate that, some fictitious person by his name was produced before the Registrar. As the photograph attached on the Power of Attorney, on the basis of which sub‑power of attorney was got registered, is not that of the defendant No.3, Abdul Karim, present in Court. He further points out that, the alleged sub‑attorney, Muhammad Anis never appeared before any Court. According to Mr. Riavi, defendant No.1 in active connivance with defendant No.2 in a calculated manner had withdrawn the rent. The collusion between them, it was asserted, could be ascertained from the fact that, the restoration application, waste filed by none other then the defendant No.2. The appeal against the order of the learned Rent Controller, directing registration of F.I.R., against the defendants (Contemners) was also dismissed. Rebutting the arguments of Mr. Kazi Ashraf, that defendant No.1 acted in good faith and no contempt has been committed. It was urged that, the moment defendant No. 1 acquired knowledge that, such compromise application and or the power of attorney etc were fictitious, he should have reverted to the direction of this Court, for deposit of rent. It is stated, till date, in negation of the direction of this Court, defendant No.1 is paying rent to the, defendant No.2, which shows that, he is ink active conniving and league with the defendant No.

2. I have heard the arguments and perused the record. The orders of this Court dated 4‑8‑1998 as reproduced above in the narrative, are clear and unambiguous, the tenant/defendant No.1 was directed to continue to deposit the rent in M.R.C. No. 160 of 1998. At the same time, plaintiff and defendant No.2 were directed not to withdraw the rent. From the documents available on record, it appears that, application for withdrawal of rent was filed on behalf of defendant No.2, Malik Muhammad Anwar, through his attorney Shahid Shah, the contemner No.3 on 19‑8‑1999. The (defendant No.1) Contemner No.2, Shoaib Mapara, gave an affidavit to the effect that he has no dispute with his landlord; Sunfune Investment, (a proprietorship, concern of defendant No.2) and that no rent case is pending in any Court of law. In view of affidavits duly sworn on‑ oath, learned Rent Controller, vide order dated 8‑10‑1999 allowed the defendant No.2 to withdraw a sum of Rs.10,20,000 on 8‑10‑1999 and further‑sum of Rs.1,20,000 on 16‑12‑1999. I have perused copy of the judgment in F.R.A. No.31 of 2001, from the record it appears, that F.R.A. No.31 of 2001, was pending on 19‑8‑1999 when an affidavit was sworn by defendant No.1, before the learned Rent Controller to the effect that, no dispute is pending with the landlord. The dispute was pending in‑First Rent Appeal referred to above. Even in penultimate paragraph of the judgment in F.R.A. No.31 of 2001, it was observed that:‑‑ "In view of the matter there is no dispute about of status of respondent (defendant No.1 herein) as tenant and appellants (plaintiff herein) have produced cogent evidence in support of plea of ownership of demised premises and have also served a notice under section 18 of the Ordinance, intimating the respondents where after relationship of landlord and tenant have been established between the parties. There appears to be a dispute between appellant and previous owner about payment of sale consideration which would be decided by High Court in Suit No. 1068 of 1997 beside cancellation of document and alternative relief of recovery of Rs.1,85,00,000 has been set up." (Words in (‑) added). I have examined copy of the order in C.P.L.A. No.429‑K of 1997 placed on record, it appears, leave was refused on 28‑1‑1998, which shows that the C.P.L.A. was not pending on the relevant date, before the Honourable Supreme Court. However, it is evident, that in Rent Case No.5 of 1996, under section 15 of SRPO, 1979 Judgment was given on 2‑9‑1998, F.R.A. No.678 of 1998 (New No.31 of 2001) was pending, as the same was decided on 14‑11‑2001. On the face of such fact, it is apparent, that the affidavit dated 2‑8‑1999 sworn and filed by the defendant No.1 and by and on behalf of defendant No.2, before the learned Rent Controller was false. From the order dated 5‑3‑2001, of the learned 1st Rent Controller, Karachi (West) in M.R.C. No.106 of 1995, directing registration of F.I.R., prima facie shows that, defendants Nos.1 and 2 employed unfair means to defeat and flout the order of this Court. The defendant No.1 active connivance with defendant No.2 withdrew rent on of Rs.10,20,000 on 8‑10‑1999 and Rs.1,20,000 on 16‑12‑1999 from the Court of 1st Rent Controller Karachi, (West) against the direction of this Court dated 4‑8‑1998. This Court called Nazir Report in M.R.C. No.160 of 1995, on 29‑1‑2003. Nazir report dated 17‑2‑2003 was received on 18‑2‑2003; which show that, lastly the rent was deposited on 27‑9‑1999. No rent has since been deposited in the M.R.C. The defendant No.1 in his counter‑affidavit to the listed application, in para.35, stated:‑‑ "that the defendant No.1 is not party to the alleged forged power of attorney, and the defendant No.1 is not the signatory, of the said Power of Attorney or a witness, therefore, the application under section 3 and 4 of the Contempt of Court Act, 1976 read with Order 39, rule 2(3) and section 151, C.P.C. is fabricated, baseless, and concocted one which is liable to be dismissed." When defendant No.1 asserted that, he is not privy to the forged power of attorney, then in all fairness, the moment such‑ fact or controversy came to his knowledge, he ought to have immediately deposited the rent in the rent case or sought further direction from this Court. It is matter of record that issue of relationship of landlord and tenant as between defendant No. 1 and the plaintiff has been decided in affirmative, yet the defendant No.1 chose to flout the order of this Court and continues to pay monthly rent to the defendant No.2. I have perused the Counter‑affidavit of the Contemner, Shoaib Yousaf Mapara, running into great detail over 15 pages and 35 paragraphs, no where the deponent had disputed or denied that the "affidavit of no objection" sworn and filed in M.R.C. No.160 of 1995 was based on incorrect fact. He has given evasive reply to the serious allegations of connivance with the defendant No.2, made in paras. 9 to 11 of the Contempt Application. Likewise the defendant No.2, who was also restrained to withdraw the rent, managed to withdraw the same in the manner stated above, and continues to realize the same in utter disregard to the order of this Court. Contemners Nos. 1 and 2 listed in the application have prima facie made themselves liable to be committed for disobedience, of direction contained in Order dated 4‑8‑1998. Contention of Mr. Sami Ahmed, that the plaintiff have in fact entered into a compromise, made an application for withdrawal of the instant suit, which application was dismissed on wrong assumption, by the Court that, Sub‑power of attorney, was not on record. Such contention is not substantiated from record. I have examined such contentions. Chronology of the event appears to be as follows;‑‑ (i) C.M. No. 1949 of 2001 for contempt under order 39, rules 1 and 2, C.P.C. filed on 12‑3‑2001. (ii) C.M.A. No.7487 of 2001 under Order 23, rule 1, C.P.C. filed on 15‑10‑2001, by Muhammad Anis; purported sub‑attorney of the plaintiffs, (iii) Above application was dismissed on 15‑10‑2001, on the ground that "There is no proof to show that Muhammad Anis, was the sub attorney of the plaintiff" (iv) Sub‑power of Attorney was first time placed on record, alongwith Counter‑affidavit to contempt application, filed on 13‑6‑2002, though in between the defendant No.2 had filed C.M.A. No.9063 of 2001 (filed on 3‑12‑2001 dismissed on 11‑12‑2001) and C.M.A. No.227 of 2002 (filed on 10‑1‑2002 dismissed on 6‑2‑2002). Disobedience of the Court order is indeed a serious matter, contumacious conduct of the Contemners call for stern action. It is duty of all the litigants more particularly party to the suit to obey the orders of the Court. When a Court pass an order or gives any direction, putting them on terms aimed at regulating the conduct of the parties or preservation of the subject matter of the suit. Such order or directions are to be followed in letter and spirit without much a do. In case a party considers that any injunctive order is causing inconvenience of a. grater magnitude or that circumstances have changed to warrant variation, modification or recall of such an order, then the remedy is provided under Order 39, rule 4, C.P.C. itself. Any party affected by such an order may seek variation and modification of the order from the Court that has passed the injunctive order. It is not at the whims and fancy of either of the party to act contrary to the directions and orders of the Court. In case a party acts contrary to the direction given by the Court or varies the terms and condition of any Order to suit its own convenience then such party does so at its own peril and consequences. It was so held by the apex Court, in the case of Bakhtawar 1980 SCMR 82 (at page 92) A supra. At page, 92 it was observed that‑‑‑ "It is well settled that when by contravening an injunction order the party against whom the order is passed has done some thing for its own advantage and disadvantage for the other party it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood as if the order hart not been contravened. " Above case was followed in the case of Muhammad Aslam (supra) and this Court maintained the conviction recorded in contempt proceeding. In case of Emirates Bank International Limited (supra) Mr. Justice Wajihuddin Ahmed, as he then was, while dealing with the contempt, in the first instance directed restoration of the property before drawing up the contempt Mr. Rizvi, pressed the above case into service to seek direction for the deposit of the rent withdrawn by the defendant No. 1 and so far collected by him. He solicited further direction for the deposit of future rent in this Court. In contra, Mr. Ashraf Kazi, emphasis that charge should be framed and after recording of the evidence any further order could be passed. Under Order 39, C.P.C. Courts regulate the conduct of the parties during pendency of the proceedings may also order interim sale, detention, preservation or inspection of subject matter of the suit, direct deposit of money. On application, Court may discharge, vary or set aside the Injunctive Order. In case of disobedience or of breach of any term of injunctive Order Court may also attach property of the person guilty of such disobedience and may also detain such person for a term not exceeding six months. Thus the Order 39, C.P.C. is a complete code, regulating grant, discharge, enforcement as well as penal consequences for the disobedience. In presence of such specific provision, ordinarily provision of Contempt of Court Act, 1976, or for that matter Article 204 of the Constitution, 1973 should not be invoked. (See Case of M.O. Ghani PLD 1966 SC 802 at page 811, followed in Emirates Bank Ltd. 1993 CLC 489 at page

499. Code of Civil Procedure, does not lay down any precise procedure for the trial of the persons guilty for the disobedience of the injunctive order passed by the Civil Courts in terms of Order 39, rules 1 and 2, C.P.C. Looking at the gravity and nature of the disobedience, Court may evolve its own procedure, such procedure, however, must commensurate with minimum standard of principal of natural justice. Since the injunctive order is visited by penal consequences of attachment as well as detention, alleged Contemner must at least be given a notice to answer the charges of disobedience and as far as possible, as observed above, minimum standard of principal of natural justice are to be adhered. By adherence to minimum standard of principal of natural justice, it does not necessarily mean that, Court should inevitably embark on full fledged trial with elaborate enquiry and record detail evidence. In some case, matter could be decided on affidavit, counter‑affidavits, and rejoinder and. admitted material, if any brought on record. In some cases, site inspection and commissioner's report may be conductive, and in appropriate cases, even evidence may also be recorded. No universal formula could be prescribed. The Court may adopt and follow such procedure in it discretion as the circumstances of each case demand. In the instant case, in my opinion, no evidence is required to be recorded no further enquiry is called for, defendant No.2 despite injunctive order of this Court dated 4‑8‑1998 had withdrawn the rent from the Court of Rent Controller and still continues to receive the rent from the defendant No.

1. The defendant No. 1 was directed by this Court "to continue to deposit rent with the Rent Controller in MRC No. 160 of 1998". Despite such restraining order and directions, defendant No. 1 has not only consented to the withdrawal of the rent by the defendant No. 2 but is continuing to pay the rent to the defendant No.2. Fact that withdrawal of rent from the Court of Rent Controller was apparently effected by employing forged document/power of attorney are sufficient aggravating circumstances to commit the defendants Nos. 1 and 2 liable for the disobedience of the order of the Court. Under circumstances of case, no evidence is required to be recorded nor, there is any need to frame any charge. The Contemners were given notice of the contempt application. They have filed their respective counter‑affidavit duly supported by documents, eminent counsels were heard on their behalf. Neither of the Contemner has expressed any remorse nor expressed their intentions to restore the status quo ante. On the contrary they have tried to justify their action, are the circumstances sufficient to commit them severally for the disobedience. In the first instance, as held by the apex Court, in the case of Bakhtawar and by this Court in the case of Emirates Bank International Limited above, I would direct the Contemner No.2 to deposit the entire amount of rent withdrawn from the MRC No. 160 of 1995 within 15 days with the Nazir of this Court. He is further directed to deposit such rent as has been received by him from the defendant No.1 till date within 15 days. Contemner No.1 is also directed to deposit entire arrears of rent at the rate of Rs.60,000 per month, with effect from October 1995 up to date, after adjusting the amount of rent deposited in MRC No. 160 of 1995, and paid to the Contemner No.2. Entire arrears if any to be deposited within 15 days from to day. He shall continue to deposit monthly rent at the rate of Rs.60,000 with effect from January 2004 onward with the Nazir of this Court regularly on or before 10th of each succeeding month till directed otherwise. Nazir is directed to invest amount deposited by the Contemners Nos.1 and 2 in some profit‑bearing scheme. Monthly rent deposited by the Contemner No.2 may be invested quarterly in profit bearing scheme fate of the amount will be decided at the time of final decision. As observed above, the Contemners Nos.1 and 2 have flouted, disobeyed and committed breach the orders and direction of this Court dated 4‑8‑1998 and continued to flout the same for almost five years, deposit having been put to notice by way of listed application, under Order 39, rule 2(3), C.P.C. direct them to be taken into custody and be committed and detained in prison for a term of two weeks. At the moment, in my opinion, there is no sufficient material on record to show that Contemner No.3, S.J. Shahid Shah, also connived to flout the Orders of this Court dated 4‑8‑1998. It appears that, he only acted as attorney for the Contemner No. 1, who has since been ordered to be committed to prison. For the time being no actions are called for as against Contemner No.3. It may however, be made clear, if at the trail, it is established that he has privy to disobedience and aided in flouting the order of this Court dated 4‑8‑1998, he may be commuted for the same. H.B.T./M‑58/K Order Accordingly.