P L D 1952 Lahore 48 (PLP)

A. R. CORNELIUS, A. C. J.‑This is a petition by one Hayat Ahmad Khan against two persons Bashir Sadiq and Muhammad Bashir, and prays that the respondents be proceed ed against and punished according to law for having committed contempt of the Court of Mr. Mohsin Tirmizi, a First Class Subordinate Judge of Lahore, by wilfully and intentionally disobeying the order passed by the said Court on the 14th March 1951, touching the delivery of certain valuable property. This property was part of the subject‑matter of a suit filed in the Court of Mr. Mohsin Tirmizi, by the petitioner, seeking dissolution of partnership and rendition of accounts in respect of a firm, known as Messrs. Sadiq and Co. of Lahore, and its subsidiary concern, the Surgical Cotton Mills Lahore, in both of which concerns the petitioner and Bashir Sadiq were alleged to be partners in equal shares. At the time when the suit was filed, certain valuable machinery was on the way to Pakistan from England by ship, having been imported by Messrs Sadiq and Co., for the Surgical Cotton Mills, and the petitioner prayed, in the Court of Mr. Mohsin Tirmizi, that the respon dents should be restrained from taking delivery of this machinery upon its arrival at Karachi. There were other prayers besides of an interim nature included in the same application, e.g., that the respondents should not realize the outstanding of Messrs. Sadiq and Co., and that a receiver should be appointed to take all the assets of both concerns, but with these reliefs we are not here concerned. After certain intermediate proceedings, on the 14th March 1951, the learned Subordinate Judge made an order concerning the delivery of the machinery, which was to the following effect. The machinery having already arrived in Karachi, where it was awaiting custom clearance, it was ordered that the respondents should take delivery of it in the presence of the petitioner or his representative, or at any rate after giving sufficient opportunity to the petitioner or his representative to be present ; if in spite of this the petitioner was not present or represented, the delivery should be taken after informing the Court. From the time of taking delivery at Karachi upto the time of arrival of the machinery at Lahore, the petitioner should be afforded full opportunity either by himself or by his representative, to supervise the machinery at every stage, and during this period the respondents should not open any package or remove any part of the machinery. Finally, the direction was made that when the machinery reached Lahore, a further order regarding its disposal would be made by the Court. It is evident from the terms of this order that the respon dents were given liberty to move the machinery from Karachi to Lahore subject to a right of continuous inspection by the petitioner. It should be mentioned that the delivery documents favoured the respondents and it was consequently for them, and for no other person, to take delivery of the goods at Karachi. Since the task of having the goods conveyed to Lahore was also entrusted to the respondents, it follows that the documents relating to the delivery at Lahore also favoured the respondents and this is indeed admitted by the petitioner. In compliance with the order of the learned Subordinate Judge, with reference to action to be taken when the machinery arrived at Lahore, the, respondents on the 18th April 1951 moved an application in the aforesaid Court asking for further direction concerning delivery of the machinery on its arrival at Lahore. The Court issued notice of this application to the petitioner for the 26th April 1951 ; on this day the petitioner filed a written reply, of which two items deserve special mention. In the application of the 18th April 1951, the res pondents had declared that some wagons containing portions of the machinery had already arrived and others were to arrive shortly. They also said that delay in. taking delivery would be expensive, as demurrage charges amounted to Rs. 150 per day. To both these prayers the reply returned by the petitioner was that he had no knowledge, and certainly, in view of the liberty expressly given to him by the order of the 14th March 1951 to supervise the transport of the machinery from Karachi to Lahore at every stage, and also in view of the value of the machinery, arid the petitioner's keenness that he should get his due share in such value, this was so curious an attitude to take that it can hardly be regarded as having been taken bona fide. The other prayer regarding demurrage related to a fact within common knowledge, and the reply made to it, which learned counsel for the petitioner suggests, was made in good faith as the petitioner was not aware of the exact amount chargeable as demurrage, again gives an impression of indifference, probably based on the consideration that the loss, whatever it might be, would fall on the opponents. On this day, namely the 26th April 1951, some talk of a compromise arose between the parties and the case was adjourned to the 2nd May, then to the 7th May and finally to the 23rd May 1951, on which date issues were framed, as no compromise had been effected. In the meantime, the respondents had commenced taking delivery of the machinery from the railway authorities on the 25th April., It is stated by learned counsel on their behalf that delivery was completed on the 28th April, and in view of the fact that the goods were heavy and were contained in sever al wagons there need be no difficulty in believing that full delivery covered a period of four days. On the 14th May 1951, the petitioner moved an application under O. XXXIX, r. 2 (3), Civil Procedure Code, read with section 151, Civil Procedure Code, stating that he had learnt on that day that the respondents had taken delivery of the machinery on the 25th April 1951 without the order of the Court and that this was in contravention of a clear order of the Court made on the 14th March 1951. By this petition, it was sought to obtain an order from the learned Subordinate judge punishing the respondents as provided in the sub‑rule of Order 39 which was cited. That sub‑rule reads as follows :‑ "In case of a disobedience, or of breach of any such terms, the Court granting an injunction tray order the property of the person guilty of such disobedience of breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release". Rule 2 of Order 39 expressly relates to suits for restraining the defendant from committing a breach of contract or other injury of any kind, and applies whether compensation is claimed in the suit or not; it is because the suit before the learned Sub ordinate Judge was not a suit falling in this category that in the petition the reference to section 151, Civil Procedure Code, was added: It is open to serious doubt whether section 151 which preserves the inherent powers of Civil Courts "to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court" are available to support with the sanctions of arrest and attach rent of pro perty, disobedience of temporary injunctions issued in suits not falling under rule 2, Order

39. It will be seen that rule 1 of that order is of general application to cases where property in dispute in a suit is in danger of being wasted, damaged etc., and that in rule 1 there is no penal provision similar to that in sub-rule (3) of rule

2. The provisions of Order 39 are all in precise terms, and within those terms exhaustive; I can see no scope for extending those provisions in any respect by inference of analogy and bearing in mind the existence of other legal pro visions whereby an injunction granted under Order 39, rule 1 is capable of being in force I am of the opinion, as at present advised that nothing which touches the ends of justice requires the importation of such a provision as that in sub‑rule (3) of rule 2 into rule 1 of Order 39 as well. I am aware that there are certain authorities of Indian High Courts to the effect that the provisions of sub‑rule (3) of rule 2 of Order 39 are appli cable as a sanction to all injunctions falling under section 94, Civil Procedure Code but these are not of binding effect, and, speaking with great respect, I do not consider that the guidance they afford in this respect is correct I am not aware of any decision of this Court which is opposed to the view I have taken above. This aspect of the matter was not dealt with by the learned Subordinate judge, who, however, on the 14th July 1951 ins pected the place where the machinery was lying, and recorded a lengthy note in which he incorporated an order regarding the protection of the property pendente lite. He found the property lying in an open space measuring about 20 kanals situated near Lahore Cantonment in a factory area. This place was intended for construction of the Surgical Cotton Mills. The learned Subordinate judge thought it was a suitable place for keeping the property pending disposal of the suit ; apparently the petitioner wanted the property to be kept in the Badami Bagh area, and the learned judge declared that as the Badarrai Bagh area was subject to flooding it was not suitable for the purpose. Then, as regards the possession of the property pending decision of the suit, he commenced with the statement that the petitioner wanted a receiver while the respondents wanted to remain in possession themselves. The petitioner had complained that the respondents had taken possession contrary to the Court's order. On this, point, the learned Judge had on the 26th April 1951 recorded an intermediate order to the effect that the parties had, on the 26th April 1951, shown no anxiety as to the possession, and he had, therefore directed that the appellant could appoint his own chaukidar to look after the property. In the order of the 14th July the learned Judge declared his opinion that further proceedings were unnecessary on that point, viz., the respondents having taken possession in contravention of the Court's order. He went on to declare that as the machinery was being kept at a suitable site and under suitable protection, and since the possession could later be altered by an order of the Court, and since further it was common ground that the delivery documents had throughout been with the respondents, possession should continue to remain with them pendente lite. He imposed the term that the respondents should furnish security for the value of the peti tioner's alleged share in the machinery, viz., in the sum of Rs. 25,

000. Dissatisfied with this order, on the 18th July 1951, Hayat Ahmad Khan made the present petition in this Court, in which he complained that the respondents by taking delivery of the machinery "in contravention of" the order of Mr. Mohsin Tirmizi dated the 14th March 1951 have committed a ‑very serious contempt of that Court, and have also brought the administration of justice into contempt. Notice having issued to the respondents, they have appeared before me by counsel. It might have been thought that when the authority of a particular Court had been flouted, that Court itself would be the first to feel the violation of its orders, and to take appro priate action to preserve its authority, as allowed by law. In this case, it is clear that the contravention which the petitioner alleges that the respondents have committed was brought immediately and forcibly to the notice of Mr. Mohsin Tirmizi. I am not aware that Mr. Mohsin Tirmizi is a person of insensitive nature in respect of contravention of his orders; indeed my impression is, if anything, somewhat to the contrary effect. Therefore, the present petition is in so far it is extra ordinary, that its success depends upon this Court's feeling a higher degree of sensitivity for the maintenance of the authority of the Court of Mr. Mohsin Tirmizi than Mr. Mohsin Tirmizi himself possesses. It is obvious that any assumption to that effect is a very difficult one to make, particularly in the absence of any allegation of partiality on the part of the learned Judge. Consequently it is necessary to consider with care whether the action of the respondents of which complaint is made, can be regarded in any other light than as a direct contravention of the order of Mr. Mohsin Tirmizi dated the 14th March 1951. In this connection I am impressed with the fact that on the 26th April 1951, a day after delivery of the machinery had been commenced at Lahore, on the one hand, the petitioner should have denied knowledge concerning arrival of the wagons containing machinery at Lahore, and, on the other, should have agreed to talk over a compromise. Mr. Muhammad Iqbal Hussain for the petitioner strenuously urged that if his client had been aware of the arrival of the wagons, he would never have declared in his reply dated the 26th April 1951 that he had no knowledge, As I have already shown, in the special circumstances of the case, the petitioner can almost be presumed to have had knowledge concerning the arrival of part of the machinery at Lahore ; in any case, on a date inter mediate between the 18th April and the 25th April 1951, he must have learned from the respondents' application that some wagons had arrived, and bearing in mind his extreme interest in the safety of this valuable property, it is impossible to suppose that he had not taken steps to have the wagons watched so that they should not be interfered with. It could not have been absent from his mind that the delivery docu ments were in the possession, of the respondents ; the res pondents had in their application clearly stated a very strong reason why they were interested to take the delivery of the machinery (apart from the ordinary interest of the proprietor in his property) and that was that every day's delay in taking delivery meant an additional expense of Rs. 150 to them. It was stated at the Bar that about Rs. 315 Were actually paid by way of demurrage. Therefore, it is hardly to be believed that on the 26th April 1951 the petitioner could have been as ignorant regarding the arrival of the wagons and of the commencement of delivery on the previous day as it is now stated that he was or as appears from his written state ment of the 26th April 1951. It is quite impossible to believe the averment in his petition of the 19th May 1951 that he learnt only on that day that delivery had been taken by the respondents. Therefore, there is great force in the ground which the learned judge put forward in his order of the 4th June 1951, namely that on the 26th April 1951 the parties had shown indifference regarding the possession, as a reason against taking the strongly punitive action against the respon dents which on a later date was demanded by the peti tioner. The object of the temporary injunction issued by the learned Judge was to preserve the property pendente lite for the benefit of both the contending parties, and if on a particular date the learned Judge was satisfied that the parties were in such a frame of mind towards each other than one party was satisfied that his interests were safe, despite the fact that the possession of the disputed property was with the other party, it was not for the Court to interfere with the latter's possession merely on a supposition unsupported by any move on the part of the other party, that the interests of the latter were‑ in jeopardy. On the 4th June 1951 the learned judge gave an opportunity to the petitioner to appoint his own chaukidar at the place where the machinery was lying in sealed packages. Subsequently, on the 14th July 1951 he made an order leaving the respondents in possession, and requiring them to give security in a large sum for the protec tion of the petitioner's rights. On this occasion, the order for appointment of a chaukidar by the petitioner was not repeated, probably because it was thought that the provision of security was sufficient protection. In the order of the 14th March 1951, the learned Judge had said that orders regarding the property would be made afresh by the Court after its arrival at Lahore. The orders of the 4th June and the 14th July 1951 must be regarded as being in implementation of the order of the 14th March 1951. Reference to the latter order will show that it contains no clear direction to the respondents not to take delivery of the property at Lahore. It is possible that such a direction may be derived from the rest of the order by implication, but it must be remembered, on the other hand, that the delivery documents were with the respondents, and that the respondents stood to suffer heavily in terms of money by delay in taking delivery from the railway, whether occasioned through their own default or through time being required by the Court to make the direction. Justification for the respondents action in taking delivery is, therefore, not lacking ; there are indica tions that on the 26th April 1951 the petitioner was aware that this was happening and did not take immediate steps to halt the persons, suggesting, as has already been seen, that he was satisfied regarding the safety of his interests, in other words, that the property was safe in the possession of the respondents pendente lite, or at any rate till further orders. In these circumstances, can it be said that there was a contraven tion of any direction made by the learned judge, 'such as could invite penalties of the nature applicable in contempt? In my opinion, the answer must be in the negative. Firstly, if a contravention of an order is to be visited with penalties of a criminal nature that order must be in clear and precise terms, setting out the obligations resting upon the person affected in clear and unmistakable language. The obligation must not rest upon any implication to be derived from any words used in respect of other matters by the Court ; it must be couched in express terms and must be brought directly to the notice of the party. I do not find in the order of the learned Judge dated the 14th March 1951 any such clear words prohibiting the respondents from taking delivery of the goods upon their arrival by rail at Lahore, as would constitute such taking of delivery a direct contravention of the Court's order. The order said that when the machinery reached Lahore a further order would be made by the Court, and it seems to me that the proceedings which have taken place in this case culminat ing in the order of the 14th July 1951, taken together, fall within this direction, and that the actual taking of delivery from the railway authorities by the respondents was an incident of these proceedings or a step taken in the course thereof, to which separate objection cannot be taken in the manner desired by the petitioner. It seems to me that that was the view of the proceedings which the learned judge of the Court below has himself taken and on that view, it is clear that no action of a punitive nature in respect of the actual raking of delivery from the railway authorities can be taken. This would explain the circumstance that this Court is being asked to visit with punishment what is characterised as flout ing of the orders of Mr. Mohsin Tirmizi, but was never felt as such by that learned Judge. For these reasons It consider that there has been no contempt committed of the Court of Mr. Mohsin Tirmizi in this case, and I hereby dismiss this petition with costs. A. H. Petition dismissed.