1998 PLP 776 (CLC)

"Status quo order, if any in operation will continue till the next date." It appears that the aforesaid order, dated 12‑4‑1995 continued to be extended from date to date up to 30‑4‑1995, however, even ‑the said order thereafter was not extended on 27‑8‑1995. The aforesaid background of the proceedings would show that the order of status quo had ceased to operate on 10‑9‑1995 when the said original order, dated 26‑3‑1995 was modified. On 10‑9‑1995 there was no order, dated 26‑3‑1995 in existence as such there was no question of its modification in any manner. Be that as it may; the order, dated 10‑9‑1995 is to be considered from another angle. The powers of the Appellate Court to grant injunction are given in section 21(2) of the Sindh Rented Premises Ordinance, which reads as under: "Section 21(2) The Appellate Authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller: Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14. " Under the Sindh Rented Premises Ordinance, which is a special law, the Appellate Court. could exercise its power in accordance with the above provision only, which empowers it to "grant injunction staying further proceedings or action on the order of the Controller". These powers cannot be equated with the powers of the Court as mentioned under Order 39, Rules 1 and 2 of the Code of Civil Procedure. The above discussion would show that in the proceedings under section 21 of the Sindh Rented Premises Ordinance, the powers of the Appellate Court are limited to grant injunction staying further proceedings or action on the order of the Rent Controller. If the parties are desirous to ask for injunction in any other form, then, they shall have to approach the Civil Courts for their redress in this respect. Now coming to the present applications, it is well‑established that contempt of Court proceedings are quasi‑criminal in nature. Viewing from this angle, the facts which emerge are, that the Court passed order on 10‑9‑1995, the portion of the order relevant to these proceedings is reproduced as under: "Learned counsel for the proposed respondents states that the said respondents are being greatly prejudiced by the order of status quo, dated 26‑3‑1995 whereby the construction on the entire. plot has been stopped. He, therefore, requests that the order may be verified suitably. The above order is, therefore, modified to the extent that the proposed respondents may raise construction, but they will not raise any wall, in between the two pillars shown in the sketch filed with Commissioner's report indicating location of the shop in dispute. The proposed respondents are further restrained from parting with the possession of the shop to be constructed in between the said two pillars." The sketch referred to in the order showed three pillars and not two pillars. The order did not specify that it was in respect of which two pillars out of the three as shown in the aforesaid sketch. The learned counsel for the respondents Nos. 4 and 5 contended that the appellant was not in possession of shop at the site which was inspected by the Commissioner, and the report of the Commissioner was one sided without notice to them. It seems that there is a dispute between the parties with regard to the location, and the size of the shop which was in possession of the appellant. The respondents Nos. 4 and 5 have filed their sketch showing the space of the shop which was in possession of the appellant, which is still lying vacant between the two pillars. The respondents Nos. 4 and 5 are still ready and willing to hand over that space as a shop to the appellant subject to the decision of the appeal, if disposed of in his favour. It is an admitted position that the appellant, throughout the proceedings never disclosed the site and size of his shop. It is stated on behalf of the respondents Nos. 4 and 5 that they had been misled as the order was not passed in respect of the actual space of the appellant's shop and whereas they kept the actual space of the appellant's shop reserved in compliance of the order, treating it as an order regarding the actual space of the appellant's shop. The respondents placed themselves at the mercy of the Court unconditionally for being pardoned. The principle is that the order regarding which breach is alleged should be a legal, clear and unambiguous order leaving no room for any person to commit any error or mistake and/or to create any misunderstanding on the part of the alleged contemner. As pointed out earlier, the order, dated 10‑9‑1995 is in respect of the space between the two pillars whereas admittedly there were three pillars. The order was not clear in respect of which of the two, out of three pillars it referred. Further there is dispute between .the parties with regard to the actual space of the shop which was in possession of the appellants. The respondents have still kept the space vacant for the appellant between the two pillars, where according to them the appellant had his shop. It is also an admitted position that the first inspection by the Nazir was carried on in the absence of the respondents and at the pointation of the appellant, the site was inspected. The version of the respondents is that the appellant never had his shop at the site which was inspected in their absence, whereas the appellant insists that he had the shop at the site inspected by the Nazir. Apparently there are two versions of the dispute on the record which are yet to be decided. The fact that the respondents have still kept the site of the appellant's shop vacant supports the version of the respondents that they might have been misled regarding the order passed by the Court on 10‑9‑1995. In the case reported in AIR 1953 Nagpur 179 (Pitrus Lahra v. R.V. Dalal and others) after discussing the case‑law it was observed that it must be proved that the party proceeded against, have committed a wilful disobedience of the order of the Court. In the case reported in 1984 CLC 2896 (Nasim Hassan and 14 others v. K. M. C. and 2 others) it has been observed by a Division Bench of this Court as under: "Contempt.‑‑‑To constitute punishable contempt disobedience, held, must be wilful. Mere unintentional disobedience of judgment, order or process of Court amounted to a contempt in theory only and did not render accused liable to punishment." In S.M. Yousuf's case reported in PLD 1969 SC 77 the honourable Supreme Court observed as under: . "The jurisdiction of the superior Courts to take action for contempt of their own authority which undoubtedly belongs to them should be jealously guarded but sparingly exercised. The dignity of the Courts rests on far more sure foundations of public trust and confidence. These foundations become stronger by the noble and serene conduct of judicial rectitude on the part of the Judges rather than by coercive actions taken in provocation, or sensitiveness for vindicating their authority. In proceedings for contempt where the conduct of a person who has apparently defied the orders of the Court leaves room for doubt with regard to his intention and a belief is possible, that he had acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him." Re: PLD 1990 Karachi page 173 (Dr. Asaf Hussain Jafri v. K.B. Bhutto, Advocate). In this case after referring to and discussing the case‑law, it has been observed as under: "In a contempt case if there, are two versions of the incident on the record, divergent in nature, allowing room for doubt, then, benefit of that doubt must be given to the alleged contemner." After hearing the parties at length and perusing the record of the case I have come to the conclusion that under the circumstances of the case as discussed above the disobedience by the respondents Nos.4 and 5 was not wilful and that they are entitled to get the benefit of doubt. The applications filed on behalf of the appellant under sections 3 and 4 of the Contempt of Court Act read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 (Civil Miscellaneous Applications Nos.545 of 1996, 546 of 1996 and 360 of 1997) are dismissed. However, the respondents Nos. 4 and 5 are directed to let keep the space between two pillars as shown in their sketch filed alongwith their counter affidavit, vacant till decision of the appeal. Further the appellant shall also have C a lien charge over the space shown by the Commissioner in report which according to the Commissioner's report is in possession of Sajjad Automobiles, till decision of this appeal. Notice with regard to the charge/lien of the appellant may be pasted at the outer door of the shop in possession of Sajjad Automobile, in presence o1 two witnesses. Civil Miscellaneous Appeal No.361 of 1997 is a formal application, praying for permission for filing counter‑affidavit on behalf of the respondents Nos.4 and 5, which has already been filed. The said application is allowed. A.A./M‑250/K Order accordingly.