2000 PLP 387 (CLC)

(i) fair comments about the general working of Courts made in good faith in the public interest and in temperate language; (ii) fare comments on the merits of a decision of a Court made, after the pendency of the proceedings in a case, in good faith and in temperate language without impugning the integrity of impartiality of the Judge; (iii). Subject to a prohibition of publication under section 9 or under any other law for the time being in force, the publication of a fair and substantially accurate report of any judicial proceedings; (iv) the publication of any matter amounting to a contempt of Court by reason of its being proceedings, by a. person who had no reasonable ground for believing that such judicial proceedings were pending at the time of the publication of the matter; (v) the distribution of a publication, containing matter amounting to contempt of Court, by a person who had no reasonable ground for believing that the publication contained, or was likely to contain, any such matter; (vi) a true averment made in good faith and in temperate language for initiation of section or in the course of disciplinary proceedings against a Judge, before the Chief Justice of a High Court, the Chief Justice of Pakistan, the Supreme Judicial Council, the Federal Government or a Provincial Government; (vii) a plea of truth taken up as defence in terms of clause (vi) in proceedings for contempt of Court arising from an earlier averment unless it is mendaciously false; (viii) relevant observations made in a judicial capacity, such as those by a higher Court on an appeal or revision or application for transfer of a case, or by a Court in judicial proceedings against a Judge; (ix) remarks made in an administrative capacity by any authority in the course of official business including those in connection with a disciplinary inquiry or in an inspection note or a character roll or confidential report; and (x) a true statement made in good faith respecting the conduct of a Judge in a matter not connected with the performance of his judicial functions."

6. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or injunction granted by the Court. Once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfil the same. Reliance can by placed on a case Mst. Kishwar Sultan Jehan Begum v. Aslam Avais and 3 others PLD 1976 Lah. 580 in this case Full Bench of the Lahore High Court observed:‑‑ "

2. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfil the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself in a perilous situation if later he commits a breach of his undertaking, and such a conduct on his part amounts to contempt of Court. In Chaturbhujdas Parmanands v. Natvarlal Tribhovandas 134 IC 1165 it was held that if an undertaking is given and is duly recorded in the order of the Court, its breach is punishable as contempt of Court. If a lawyer is acting in his capacity as counsel for a party and gives an undertaking, it is open to the Court to enforce the same even if it was given gratuitously. An. undertaking can be enforced even though the lawyer's conduct involves no misconduct. Hamilton, J., observed in United Mining & Finance Corporation Ltd. v. Becher (1902) 2 KB 296 that the jurisdiction may be invoked not only to secure honestly, in its moral sense, in Court officer, but also to secure the 'proper and profession observation of undertaking professionally given'. He added: ' The conduct which is required of solicitors is to this extent perhaps raised to a higher standard than the conduct required of ordinary men, in that it is subject to the special control which a Court exercises over officers so that in certain cases they may be called upon summarily to perform their undertakings, even where the contention that they are not liable to perform them is entirely free from anything of moral misconduct'. It is also, no justification that such an officer was not bound by the undertaking because he was not served with the order containing the undertaking. In re: Galwanized Tank Manufacturers' Association's Agreement (1965) 2 All ER 1003 Megaw, P. Said: ' We would, however, emphasis that a company which has given an undertaking to the Court must be treated as having failed lamentably and inexcusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves, and anyone to whom they may delegate the handling of matters which fall within the scope of the undertaking, do not forget or misunderstand or overlook the obligations imposed by such undertaking." 'If a person, bound by an undertaking, acts in violation of the same though on the pretext that his action was backed by some legal advice, he renders himself liable for action. In re: Agreement of Mileage Conference Group of the Tyre Manufacturers" Conference Ltd. (1966) 2 All ER 849 certain tyre manufacturers had given an undertaking inter alia not to operate a certain scheme which the Restrictive Practices Court had declared contrary to public interest. A new scheme was devised and operated which was held to be a breach of their undertaking, they could not be said to have committed contempt because the breach had not been contumacious. The Court held that although reliance on legal advice might he a mitigating factor provided that it was reasonable to rely on such advice, nevertheless a contempt wilt still 'have been committed. Megaw, P., observed, we conclude ... that the breaches of undertaking here were contempts of Court, even though it were to be shown that they were things done, reasonably) and despite all due care and attention, in the belief, based on legal advice, that the), were not breaches'. Accordingly, we would hold that breach by a party of an undertaking given to a Court by him or his counsel amounts to contempt of Court and is punishable brevimanu, and the party in contempt must wash choose to make. However, before exercising such a wide jurisdiction, the Court must ensure that the undertaking was unambiguous and the breach was also clear beyond all reasonable doubt."

7. In the instant case learned counsel for the respondent made a statement as under:‑ On the above statement made by the counsel the Court disposed of the suit accordingly. It reveals that the counsel gave the undertaking which was binding on the respondents and the respondents thereafter dismantled the wall of the petitioner. In the light of the considered analysis of facts of the case and the seen perspective of the principle enunciated in the case aforequoted judicial precedent it can be concluded that the respondents had committed Contempt of Court.

8. The learned Additional Advocate‑General when appeared on Court's call raised an objection that the Civil Judge had no jurisdiction to convict the petitioner under Contempt of Court Act. _Now I take up this objection as under.‑‑ "The petitioner had filed a petition under Order 39, Rule 2(3) of C.P.C as observed that the petitioner was not desired under the above referred provisions of C.P.C., the proper Course would be to file application under section 3/4 of Contempt of Court Act, so the petition would be deemed to have been filed under Contempt of Court Act. If this is the position then the Civil Court could not proceed under the provisions of Contempt of Court Act." Section 5 of the Contempt. of Court Act reads as under:‑

5. Jurisdiction.‑‑‑ (1) A High Court or the Supreme Court, on its own information or on information laid before it by any person, may take congnizance of an alleged commission of contempt of Court. (2) The Supreme Court shall have the power to take congnizance of any contempt of itself or of arty Judge of the Supreme Court alleged to have been committed any where and a High Court shall have the power to take cognizance of any contempt of itself or of any Judge thereof or of any other High Court or of any Judge thereof alleged to have been committed within the territorial limits of its jurisdiction. (3) A High Court shall exercise the same jurisdiction in respect of contempt of Courts subordinate to it or to any other High Court as it exercises in respect of contempt of itself. (4) Nothing contained herein shall affect the power of any Court to punish any offence of contempt under the Pakistan Penal Code (Act XLV of 1860)." The bare reading of section 228, P.P.C. and subsection (4) of section 5 of Contempt of Court Act, 1976 makes it clear that the subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in circumstances in section 228, P.P.C. Reliance can be placed in this context on case of Yar Muhammad v. The State 1990 P Cr .LJ 1736. It is manifestly clear from the provisions of section 3 and subsection (4) of section 5 of Contempt of Court Act and section 228, P.P.C. that the Subordinate Courts could punish for contempt of Court only where the contempt was committed in the face of the Court or its orders were disobeyed or disrespected,

8. This aspect of the case was not adverted to by the Court below. Following the dictum laid down in the case referred to above it is held that the Civil Judge lacks the jurisdiction to try the contempt petition. He is directed to make reference to the High Court.

9. For the foregoing reasons this revision petition has no merits which is dismissed in limine with no order as to costs. Q. M. H. /M. A. K/S‑439/L Revision dismissed.