1987 PLP 1967 (SCMR)

MUHAMMAD HALEEM, C.J.--Notice for contempt was issued to the respondents Shabir Hussain Shah and three others, who were the legal heirs of deceased respondent Syed Bachal Shah in Civil Appeal No.125 of 1975, which was accepted by this Court on 11th of June, 1983, and a review against that order was also rejected on 13th of December, 1983. It is of significance to mention here that in ground (h) of the review petition a plea which was not raised at the appeal stage was taken which runs as under:- "That in any event the P.T.O. issued is not in accordance with the situation at site. The property in occupation of S. Bachal Shah as found by the Settlement Authorities is situate over both Survey Numbers 1800 and 1801. The two properties have been found to be amalgamated and they have been divided horizontally. However, the P.T.O. proceeds on the basis of vertical division which is not the case of any party and is patently `erroneous. This aspect of the matter has been overlooked. " Subsequently the legal heirs of Syed Bachal Shah filed a suit, the plaint of which was drafted by Mr. Faiz Muhammad Soomro, Advocate, seeking a declaratory relief to the effect that the order of inclusion of property No.B-1800 in the amended P.T.D. was void, illegal, mala fide and without jurisdiction, and, therefore, it was not binding on the plaintiffs-contemners. The Senior Civil Judge, Hyderabad, rejected the plaint on the ground that this Court had conclusively decided the entitlement of the parties, but, on appeal, the District Judge, Hyderabad, while entertaining the appeal granted an interim injunction restraining defendant No.3, who was the appellant in the appeal before this Court, from transferring or encumbering the suit-property bearing No. B-1800 Hyderabad of interfering with the possession of the plaintiff s-contemners over a part of it which was in their possession. It was in these circumstances that defendant No.3, now the petitioner before us, filed an application for contempt against the plaintiffs -contemners. By another order of the Court dated 28-1-1987, similar notice was also issued to Mr. Faiz Muhammad Soomro, Advocate, who had drafted and filed the suit on behalf of the plaintiffs-contemners. We were surprised to notice from his explanation that there was no reference to the grounds of review petition and the order rejecting it from amongst the documents brought to his notice as essentially the merits of the suit turned on ground (h) referred to earlier and its rejection by our order. He was represented by the same counsel before us and although, according to him, the controversy in the appeal rested on CS.No.B-1801, he was unable to explain as to the outcome of the CS No. B-1800 which was finally transferred to Ali Muhammad and a writ petition challenging that transfer was dismissed thus concluding the controversy finally. In our judgment on appeal, the controversy was only in regard to CS . B-1801 and on this aspect the order of the Deputy Settlement Commissioner, Hyderabad, dated 18-11-1966 was also unequivocal. In the grounds of the review petition in clause (h) what was asserted was that the property of the plaintiffs extended over CS Nos.B-1800 and B-1801 which were amalgamated, and that the amended transfer order proceeded on the basis of vertical division and not horizontal division. The amended PTO (transfer order) is in respect of house No.B-1801 in implementation of this Court's order in appeal. And as for any claim of the predecessor-in-interest of the plaintiffs over B-1800, it is clear from our judgment in appeal that it was transferred to Ali Muhammad and the controversy concluded by the dismissal of the writ petition against that transfer which matter had not been pursued any further. Apart from what was transferred to Ali Muhammad there is nothing on record to single out any portion of B-1800 to which the plain tiffs-contemners could lay their claim. There is also the additional fact that Syed Bachal Shah had executed an agreement of tenancy after the transfer of house No.B-1801 in favour of Mirza Maqbool Ahmad which points to the fact that he had accepted his status as a tenant in respect of the property in dispute without demur. In view of these circumstances, the suit related to property No.B-1801 although the contemners attempted to justify that the suit involved property No.B-1800 and not B-1801. As they were not able to persuade us to accept their view point, the counsel for the contemners in the suit undertook to withdraw the appeal and we allowed him to do so. They appeared today and stated that the appeal had been withdrawn which fact was not disputed by the learned counsel for Mirza Maqbool Ahmad. The contemners also tendered unconditional apology through their counsel. As the situation now stands retrieved and the contemners have shown contrition and remorse we would accept the unconditional apology as sufficient amends and discharge the notices against them. K . B . A . / M-193 / S Notice discharged.