P L D 1952 Lahore 77 (PLP)

A. R. CORNELIUS, A. C. J.‑In this case, one Hatim who is described as proprietor of a firm described as Sikandar Pictures and Film Distributors of Lahore has been ordered by 'a First Class Sub‑Judge of Lahore under the provisions of Order 39 Rule 2 (3), Civil Procedure Code, to be sent to a civil prison for a period of six months and at the same time it has been ordered that his movable property of the value of Rs. 1,000 should be attached. An appeal taken before the learned Senior Subordinate Judge of Lahore was dismissed with costs. It has been held by the learned Subordinate judge that Hatim has been guilty of deliberate defying of an order of his Court, made in the course of a suit brought by one Shah Din against Hatim and another in respect of rights of release, distribution and booking of a motion picture called' Nao ' Shah Din claimed that under an agreement with the makers of this motion picture, he was the proprietor of these rights and to that these rights were threatened by Hatim who was proposing to exercise them in respect of the same motion picture himself. The plaint was presented on the 8th September 1949 in the High Court, together with an applica tion on which an order was obtained from an honourable Judge restraining Hatim from exercising the rights in question. This order was made in accordance with a practice of this Court of considerable standing, under which at times when the Civil Courts are closed, this Court makes emergent orders in the interests of justice to have effect until such time as the parties are able to seek remedies in the ordinary Courts, when they re‑open. The original order was made in this case by the Honourable judge on the 26th September 1949 which was clarified by a subsequent order, made at the instance of Hatim on the 28th October 1949, and is in the following terms :‑ " Order of 26th September 1949 was intended to be opera tive until' the opening of 'the Civil Courts, which being opened now it is suggested that a fresh application for the issue of an injunction be made to the Court." Thereafter a temporary injunction was obtained by Shah Din on the 14th November 1949 from the Court of Sh. Farooq Ahmad operative until the 22nd November 1949. Then after a gap of one day, namely the 23rd November 1949, the Court on the 24th November 1949 issued a fresh tempo rary injunction to have effect till the 28th November 1949, which was later extended to the 30th November 1949. There after there was arbitration proceedings, and it was not until the 26th January 1950 that a fresh temporary injunction‑was issued and this was confirmed on the 31st January 1950 to be effective for the duration of the suit. It should be noted that the last mentioned injunction was in respect of the rights of distributing, releasing and booking the motion picture ; the earlier injunction being merely of restraint against distributing In a number of applications made from time to time, Shah lain plaintiff complained that Hatim had contravened the injunction laid upon him by exhibiting the motion picture in question at the following places on the dates mentioned against each :‑ at Abbottabad on 24‑11‑1949, at Mardan on 20‑1‑1950, at Khanewal from 10‑2‑1950 to 13‑2‑1950, at Mardan on 14‑2‑1950, at Rawalpindi on 17‑2‑1950, at Mardan from 10‑3‑1950 to 16‑3‑1950, at Muree on 12‑5‑1950, and at Nowshera on 17‑5‑1950. In each of these applications, Shah Din prayed that action according to law may be taken against Hatim, and in one case he asked that such action should be immediate in order to prevent the repeated contraventions. Nowhere, however, was a direct reference made to the punitive provisions of Order 39 Rule 2 (3) Civil Procedure Code, which have. been applied in this case. Hatim in reply to the allegations admitted that the picture had been exhibited at Abbottabad, but said that he had releas ed it for the purpose on the 23rd November 1949 when there was no injunction lying upon him. As regards the later exhibitions he stated that he had transferred his rights in the picture in favour of a firm known as Lakhesar & Co., on the 10th January 1950, on which date there was no restraint order in force. On the 3rd May 1950, the Court required the parties to put in affidavits in support of their respective allegations. No issues were framed nor were the parties examined as to the exact procedure in respect of distribution, release etc. This step was of the greatest importance, for it would seem from the description applied to Hatim, namely, proprietor of a firm engaged in distribution of pictures and films, that he was possibly not himself an exhibitor, and therefore the exhibition of the film at the various places in respect of which complaint is made, might have been by a person or persons to whom the rights had been transferred by Hatim. There were periods after the institution of the suit during which Hatim was free of restraint in respect of the alienation of these rights, and since it is not necessary to suppose that the exhibition of the film should follow immediately after the acquisition of such rights, circumstances might have arisen in which the picture was exhibited by an allienee of such rights on a date when, by virtue of afresh order of injunction, Hatim was not competent to make a fresh release or distribution order. Nevertheless, the exhibition might be perfectly valid, having been made by the person who acquired the rights at a period when there was no injunction against its transfer. The next step taken by the Court was to make an order on the 27th May 1950 requiring the parties to put in affidavits in support of their respective allegations, and for this the 3rd June, 1950, was fixed as the terminal date. Shah Din duly filed an affidavit but Hatim filed none. It is to be noted that before calling for evidence, the Court had struck no issues and had made no effort, by examining the parties, to charify the facts in what was, as will appear from the substance of the foregoing paragraph, by no means a simple matter. If there had been examination of parties and issues had been struck, not only would the Court have been in a position to pin down the parties to their particular, cases and thus to eluci date the exact point of conflict between them, but the Court might also have taken advantage of the opportunity thus offered to bring it forcibly to the notice of the appellant Hatim that he stood in danger of being imprisoned and of having his property attached unless he cleared himself. As the record lies, when I asked learned counsel for the respondent to indicate anything therein which could operate as a warning to Hatim that the very severe penalties of imprisonment and loss of property could be imposed upon him, learned counsel could point to nothing except the headings of the various applications filed by Shah Din, in which reference was made to Order 39 Rule 3, and to the prayer contained in these petitions that action should be taken " according to law ". It is not thus that persons, who are in peril of such penalties are under the existing law required to be warned. . It is true that the present case lies in the civil jurisdiction, but penalties involved are clearly of a criminal nature, and, notwithstanding that no precise procedure has been laid down, it is expected that any Court which feels called upon to impose these penalties should proceed as nearly as possible in the same manner as a criminal Court would proceed ; in other words, that at the earliest opportunity, when it has formed the‑opinion that facts exist which may require the imposition of the penalties, the Court shall put the person at fault on his guard by framing a question or an issue which should embody all the elements of a charge under the criminal jurisdiction. The facts should be briefly stated, as they are alleged to stand against the defaulter, and there should be a precise reference to the law under which the Court proposes to punish him, unless he shows cause against such punishment. In the absence of any such procedure, it is not possible to uphold the order of imprisonment and attachment made by the original Court. But there are further important matters arising for comment out of the procedure actually adopted. Firstly, as the order stands, it would appear that imprisonment and attachment of property had been awarded by the learned trial Court for failure to furnish an affidavit. Even if the Court had decided, on account of the default made by Hatim, to proceed further against him ex‑parte, it appears to me that, having regard to the nature and circumstances of the case, the mere affidavit of Shah Din was by no means sufficient evidence upon which a conviction, followed by an order of imprisonment and attachment of property, could have been based. At the very least, the Court should have attempted to frame issues and should have held an oral examination of Shah Din, and further, should have required him to produce evidence of the exhibition of the film at the various places regarding which Hatim had not categorically admitted exhibition. Moreover, in my opinion, exception can also be taken to .the use made by the trial Court in the present case of the liberty to receive evidence on affidavit which is provided by Order 19 of the Civil Procedure Code. It is true that the provisions of this order are couched in general terms; and that it lies within the discretion of the Court to make use of those provisions in an appropriate case. As a general, rule, a case involving quasi criminal penalties is not a suitable case for the grant of permission to prove by affidavit, and‑ the Civil Courts would do well in all such cases to adopt as nearly as may be the procedure which is prescribed for the criminal Courts when applying similar remedies. Such a course will be directly in the interests of justice, and will ensure that a full opportunity is allowed to the alleged defaulter to clear his position an explain the allegations against him, before the final order of conviction and punishment is made. This is not to say that there cannot be cases where such penalties have been incurred, in which evidence may suitably be received on affidavit. I would hesitate‑ to employ any words having the effect of restricting the full and unfettered discretion invested in the Courts by the language of Order 19, and would wish only to emphasize that: Civil Courts, in exercising their discre tion, where the circumstances and the law required them to take severe and; in some cases, irrevocable step such as in cerebrating or arresting a litigant and the sequestration of his property, should stop as nearly as may be, the same precau tions as are prescribed for the criminal Courts imposing similar penalties. There need be no fear that the adoption of such precautions will defeat, or delay justice in a case like the present, where emergent orders had already been made, but, on the other hand" they are of a nature which through long experience, has been found to be well calculated to ensure the safety of the subject against arbitrary action on the part of executive and judicial authorities. Holding this view of the matter, I consider that the petitioner Hatim is entitled to such an opportunity to clear his position as would be allowed to an accused person in any criminal case involving similar penalties. I do not consider that such an opportunity has been yet allowed to him; and I accordingly accept his petition and setting aside the order of the learned trial Court, direct that it should proceed on the lines indicated above, that is to say, to examine the parties' orally, to frame issues as necessary including an issue as to the liability of Hatim under Rule 2 (3) of Order 39 Civil P. C. and thereafter the Court should allow the parties one or more opportunities as may be reasonable to present their evidence in support of their respective cases. When the evidence is complete, the Court should proceed to decide whether or not there has been a contravention or contraven tions as alleged by Shah Din and to take proper action as required by law. I make no order as to costs. A.H. Petition accepted.