P L D 1993 Karachi 469 (PLP)

HAZIQUL KHAIRI, J.

The appellants in this High Court Appeal ve impugned the order dated 14-3-1991 passed by a learned Single Judge of s Court dismissing the appellants' application being CMA 324 of 1991 under -der XXXX, Rule 2(3) C.P.C. read with sections 144 and 151, C.P.C. The facts of the case are that respondent No.1 filed a Suit No.142 of 93 for Declaration, Injunction and Damages amounting to Rs.95,000 against the appellant and the respondent No.2 in which it was averred that the respondent No.1 were tenant in respect of five shops on ground floor on Plot No.1, SB-7, Corner of Preedy Street and Abdullah Haroon Road, Saddar, Kirachi. The respondent No.1 had been enjoying the occupancy of the said shops without any let or hindrance. However, in the night of 6th and 7th january, 1973 appellants blocked the door No.1 of the said tenement facing Preedy Street, blocked door No.3 facing Preedy Street and Abdullah Haroon Road, Saddar, Karachi, and obstructed the public footpath facing Abdullah Haroon Road through windows Nos.1 and 2 of the said tenement. In the said suit the respondent No.1 inter alia prayed for removal of the said obstructions created by appellants and also permanent injunction restraining them from encroaching upon, blocking of the said shops and creating of nuisance in front of the doors, windows etc. of the said shops premises of the respondent No.1 Firm. The appellants had also filed in the said suit, CMA 6220 of 1984 in which it was prayed that respondent No.1 may be restrained from evicting them from the? said space occupied by them at the doors and -windows of the said shop premises. On 24-4-1985 when the said application came up for hearing learned counsel for respondents Nos.1 and 2 made an undertaking to the effect that the said respondents shall not take law into their own hands and would not resort to throw away the appellants through illegal means. It is urged that subsequently on 14-2-1991 a KMC Demolishing officer armed by Police -Party with about 300 Constables and labourers engaged by the respondent No.1 broke the shutters of the said five shops and moved all articles valuing Rs.20,00,000 to unknown place in the Trucks and the appellants were locked at Preedy Police Station. After the removal of the utters new shutters were installed on the said shops by the respondent No.1 and till such time the whole action was completed, the appellants were kept in .gal custody at the police station. It is further alleged that the said action was taken by the KMC on the initiative of respondent No.1 as is evident from a letter dated 7-2-1991 addressed by the Director (Land), KMC to Deputy commissioner (South), Karachi. Thus it was contended that respondent No.1 A had committed breach of undertaking given on their behalf which amounted to disobedience of the Court's order dated 24-4-1985. In the said application being CMA 324 of 1991, the appellants prayed as follows:-- (a)??? To order immediate restoration of the possession of the shops to the appellants -in the same position as they existed on 14-2-1991 before taking illegal action of their eviction therefrom; (b)??? to order that Mr. Sadiq alleged Managing Partner of plaintiff/respondent No.1 and Mr. Shabbir defendant/respondent No.2 be detained in Civil Prison for a term not exceeding six months and to order attachment of their properties for the losses suffered by the appellants." The respondents controverted the various allegations made by the appellants. The learned Single Judge of this Court was of the view that respondents Nos. 1 and 2 did not violate the undertaking made by them and at no point of time they took law into their hands nor did they resort to throw away the appellants through illegal means. The crux of the matter as such was whether the respondents employed illegal means to throw away or evict the appellants from the space/wall fixtures held by the appellants. We have -heard Mr. Khalilur Rehman, learned counsel for the appellants and Mr. Z.U. Ahmed, learned counsel for the respondents at length and have also perused the record in this case as well as in Constitutional Petition No.247 of 1991 filed by the appellants in this Court. In order to succeed it was incumbent upon the appellants to show violation by respondents of their said undertaking. In the said Constitutional Petition No.D-247 of 1991, the action of KMC and its Officers in demolishing the space/wall fixture occupied by the appellant was held to be illegal and without lawful authority as will appear from the following passage:-- - "In short, we hold that the action of respondent No.3 (Director Land, K.M.C.) does not appear to be bona fide and even otherwise it is not sustainable under law as the provisions of section 5 of Act V of 1975 were not strictly followed inasmuch as action was taken against the petitioners either without serving them with the mandatory notice under section 5 of the Act or, in the alternative, before the expiry of notice period. We are, however not inclined to make any observations as regards the conduct of respondents Nos.4 to 6 who were misled into providing assistance to cover a mala fide and illegal operation. We would also refrain from commenting on the further prayer as regards the restoring of the wall-fixtures as the dispute is sub judice before this Court in a civil suit." In support of his contention that the space/wall fixtures occupied by the appellants may be restored as a result of the said violation, learned counsel for the appellants,Mr. Khalilur Rehman placed reliance on Bakhtawar etc. v. Amin etc. 1980 SCMR 1989 in which it was held:-- "It is well-settled that when by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of 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 had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court." There is no doubt that on account of the said action taken by KMC and its Officers, respondents have been placed in an advantageous position and the space/wall fixtures which was available to the appellants came into possession of the respondents but here again the question would be whether on account of an illegal measure taken by the said respondents, they had obtained possession thereof which as per the finding of the learned Division Bench of this Court in the said constitution is attributable to the unlawful acts on the part of KMC and its Officers to the exclusion of any definite illegal action on the part of the respondents. We are now told by Mr. Khalilur Rehman that the respondents Nos.1 and 2 have withdrawn the suit filed by them against the appellants. Such being the position, the pending litigation between the parties is the said Constitutional Petition in which the appellants have moved a review application, as well as two other suits filed by them. We are further told that both the parties have filed review applications in the said Constitutional Petition No.D-247 of 1991 and in the appellants' Review application consequential relief has also been prayed for by the appellants. While agreeing with learned Judges in Constitutional Petition No.D-247 of 1991 that the action of the Director, Lands K.M.C. does not appear to be bona fide or sustainable in law, we are however unable to persuade ourselves to accept the allegation that the respondent had used illegal means to throw the appellants away from the space/wall fbidures, on the basis of material placed before us. In the end we may observe that the appellants will be at liberty to take such steps by way of consequential relief in the pending proceedings or by instituting fresh proceedings against any one as may be advised to them on the basis of material available now or in future. Order accordingly. H.B.T./A-1359/K