P L D 2005 Karachi 316 (PLP)

6.After passing of aforesaid impugned order dated 24‑12‑2003, two applications under section 382‑A, Cr.P.C. were moved on behalf of the appellants, which were granted by the learned Single Judge on the same day, subject to furnishing of surety by both the appellants in the sum of Rs.10,000 each.

7. After filing of these appeals, such order in favour of the appellants was kept alive by this Court and in this manner till this date the two appellants have not been committed to prison in terms of the impugned order.

8. At the outset, Mr. M. Anwar Tariq, learned counsel for the appellant, Shoaib Yousuf Mahpara has made statement at the bar that the directions issued to the appellant Shoaib Yousuf in the impugned order regarding deposit of arrears of the rent have been complied by him and further he is also regularly depositing current rent in terms of the earlier order dated 4‑8‑1998 and the order dated 23‑12‑2004. No such statement has, however, come forward from the side of other appellant Muhammad Anwar Malik.

9. Mr. M. Anwar Tariq, learned counsel for the appellant, Shoaib Yousuf Mahpara, did not dispute gross violation of order dated 4‑8‑1998 committed by the appellant, however, he contended that ‑there was no ill wiil or element of contumacy in his conduct in this regard, but it was under the bona fide impression of compromise between the parties that he had given his no objection to the application for withdrawal of rent moved by other appellant Malik Muhammad Anwar. He urged that in view of this position and looking to the subsequent conduct of the appellant Shoaib Yousuf Mahpara that now he has been regularly depositing rent in Court, the punishment awarded to him may be set aside/remitted.

10. Mr. Sami Ahmed, learned counsel for the appellant Malik Muhammad Anwar, mainly challenged the impugned order on the premises that it is in gross violation of the principles of natural justice. In this regard he contended that neither any show‑cause notice was issued to the appellant, Muhammad Anwar Malik, nor any charge was framed against him or opportunity to lead evidence in defence was afforded to him, therefore, on this ground alone impugned order is liable to be set aside. To fortify his submission learned counsel placed reliance on the following cases: "(1) PLD 1952 Lahore 77,(2) PLD 1992 SC 104, (3) PLD 1966 SC 802 and (4) 1999 SCMR 2215".

11. Mr. Sami Ahmed further contended that the directions issued by the learned Single Judge in the impugned order calling upon the two appellants to deposit the arrears of rent already received/withdrawn by them and current rent are in gross violation of Order XXXIX, Rule 2(3), C.P.C., which does not contemplate such eventuality, thus, for this reason too such order is liable to be set aside. He also made reference to the application under Order XXIII, Rule 1, C.P.C., being C.M.A. No.7487 of 2001 purportedly moved by the sub‑attorney of respondents Nos. l to 4, Muhammad Anees on 6‑10‑2001, which was dismissed by the Court vide order dated 15‑10‑2001, to show that the violation of the order dated 4‑8‑1998 by the two appellants was result of some settlement/compromise between the parties, which had left no further cause of grievance to any party.

12. On the other hand, Mr. Muhammad Ali Jan learned counsel for respondents Nos.1 to 4 in H.C.A. No.426 of 2003, supported the impugned order particularly the directions of the Court regarding deposit of arrears and current rent in Court, issued to both the appellants. He contended that Order XXXIX, Rules 1 and 2 provides sufficient mechanism to meet such eventualities. Further under sections 94 and 151, C.P.C. more powers are available to the Court which could be exercised in appropriate cases to meet the ends of justice. In such circumstances, the impugned order being in conformity with law needs no interference. Mr. Muhammad Ali Jan narrating other facts contended that a game of fraud and cheating was managed by the two appellants whereby initially execution of power of attorney by respondents Nos. l to 4 in favour of Abdul Karim was alleged and on that basis execution of another sub‑power of attorney in favour of Muhammad Anis was shown. When respondent No. l came to know about such collusive game of fraud between she two appellant, whereby the rent deposited in M.R.C. No. i60 of 1995 was withdrawn by them without any notice to the respondents Nos.1 to 4, and in violation of the order dated 4‑8‑1998, they brought this fact to the notice of the concerned Court of Rent Controller, who immediately sought verification of document/power of attorney purportedly executed in favou‑ of Abdul Karim and he was informed by the Sub‑Registrar concerned that it was a forged document. He, therefore, urged that the two appellants are liable to be punished for violation of order dated 4-8‑1998 and the impugned order is thus unexceptionable.

13. Mr. Rasheed A. Razvi, learned counsel representing respondents Nos. l to 4 in H. C. A. No. 2 of 2004, in his arguments made a detailed reference to the relevant facts of the case to show that there is no denial of fact regarding violation of order dated 4‑8‑1998 by the two appellants. To meet the submissions of Mr. Sami Ahmed with reference to the alleged non‑providing of due opportunity of hearing to the appellants before passing of impugned order, learned counsel placed reliance on the following cases:‑‑ (1) PLD 1962 SC 457, (2) 1980 SCMR 89 and (3) PLD 2002 SC 303.

14. Supporting and justifying the directions issued by the learned Single Judge to the appellants in his impugned order regarding deposit of the rent amount with the Nazir of this Court within fifteen days, learned counsel further made reference to the provisions of sections 36 and 94, C.P.C. and Order XXXIX, Rule 10, C.P.C.

15. Giving further reply to the allegations of denial of due opportunity of hearing to the appellants before passing of impugned order, learned counsel vehemently contended that on filing of C.M.A. No.1949 of 2001 notice of this application was issued to the alleged contemnors whereupon they had submitted their detailed reply in Court accompanied with bunch of documents. Even thereafter, the said application remained pending for disposal for more than one year and nine months and during this period it was fixed in Court for hearing on several dates, but during that period too at no stage any of the appellants made any request to the Court for any further opportunity to lead evidence in support of their claim. He contended that it has been time and again held by superior Courts that the proceedings of violation of order passed under Order XXXIX, Rules 1, C.P.C. initiated under Order XXXIX, Rule 2(3), C.P.C. are not regulated by any specific procedure prescribed by law, but the Court has to regulate its own procedure for deciding the fate of such proceedings. He lastly contended that having contested the contempt application for over twenty one months it does not suit in the mouth of the appellants to agitate that proper opportunity of hearing was not provided to them or they were required to be served with any show‑cause notice or any formal charge should have been framed against them before passing of impugned order.

16. Before we proceed to examine the contentions raised by the learned counsel with reference to the short controversy involved in these appeals, it will be advantageous to discuss some of the case‑law cited at the bar by learned counsel for the parties, which is relevant to such controversy. (A) In the case of Hatim v. Shah Din (PLD 1952 Lahore 77) a learned Single Judge of Lahore High Court, while dealing with a petition arising out of proceedings under Order XXXIX, Rule 2(3), C.P.C. had observed that in a case which lies in the civil jurisdiction, but penalties involved are of criminal nature, notwithstanding that no precise procedure has been laid down, it is expected that the Court, before imposing these penalties, should proceed as nearly as possible in the same manner as criminal Court would proceed by framing of questions or issue so that the person at fault is put on his guard. It was further observed that the provisions of Order XIX, C.P.C. are couched in general terns, therefore, it lies within the discretion of Court to make use of these provisions in appropriate cases; as a general rule, a case involving quasi criminal proceedings is not a suitable case for grant of permission to prove by affidavit; however, there can be cases where such penalties have been incurred in which evidence may 'suitably be received on affidavit. (B) In the case of Dr. M.O. Ghani, Vice‑Chancellor, University of Dacca v. Dr. A.N.M. Mahmood (PLD 1966 Supreme Court 802) the Honourable Supreme Court of Pakistan had taken into consideration the powers of the Court under Order XXXIX, Rule 2, sub‑rules (3) and (4) vis‑a‑vis the powers of the High Court under summary jurisdiction to punish for contempt and held that former provides an adequate remedy against disobedience of an injunction order issued under Sub‑Rules 1 and 2 of Order XXXIX; the machinery provided by Rule 2 of Order XXXIX of the Civil Procedure Code is quite effective to deal with the situation, thus, the. High Court would be well advised in restraining themselves from proceedings for contempt in such cases. Such observations were made by the Court with reference to the peculiar facts 'of the case. (C) In the case of Muhammad Aslam v. Mahmood Ali and another (PLD 1992 SC 104), while dealing with the scope of contempt proceedings, the Honourable Supreme Court of Pakistan, following the view in the case of Ch. Zahoor Ellahi v. Mr. Zulfiqar Ali Bhutto (PLD 1975 SC 383), observed that the contempt of Court proceedings were sui generis in nature partaking some of the elements of both civil and criminal proceedings but really constituting neither; no fixed formula for contempt proceedings was required nor technical accuracies were desired; Court was not bound by Code of Civil Procedure or by the technicalities of ordinary criminal proceedings; the Court' being Court of justice, nevertheless, would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to a party for defending himself and putting forward his case with as much, if not more than an ordinary trial before the Court. (D) In the case of Raja Talat Mahmood v. Ismat Ehtishamul Haq (1999 SCMR 2215), it was again observed by the Honourable Supreme Court of Pakistan that in the matter of dealing with the disobedience or breach of terms of injunction/status quo order, no precise procedure was laid down for adjudication of application under Order XXXIX, Rule 2(3), C. P. C. ; however, the party facing the charge should be fully conscious and aware of the charge against him vis‑a‑vis violation of the order passed and proper opportunity should be afforded to him to defend himself. (E) In the case of Saadat Khialy, Staff Reporter ("Kohistan" Daily) and others v. (1) The State and (2) Shama Overseas (Private) Ltd. (PLD 1962 SC 457) it was observed by the Honourable Supreme Court that the nature of contempt proceedings was neither wholly criminal nor wholly civil, but partaking of some elements of both purely sui generis; therefore, fundamental rules for ascertaining the truth and allowing full opportunity of defence should be provided to a party. It was further observed that there was no fixed formula for contempt proceedings and that technical accuracies were not required nor the Court was bound by the provisions of criminal procedure of technicalities of ordinary criminal proceedings in such cases. (F) In the case of Bakhtawar etc. v. Amin etc. (1980 SCMR 89) the Honourable Supreme Court of Pakistan observed that if disobedience of an injunction granted under Order XXXIX, Rule 2, C.P.C. has occurred and an application for action being taken within Rule 2(3) is made; mere dismissal of suit will not excuse party guilty of disobedience. Referring to certain other provisions of C.P.C. it was further observed that one of the object of contempt proceedings is also to seek compliance of Courts order as otherwise these orders would be mere farce. (G) In the case of Muhammad Sabir Khan and 13 others v. Rahim Baksh and 16 others (PLD 2002 Supreme Court 303), taking into account a sale transaction, which had taken place during the subsistence of an injunction order, it was observed by the Honourable Supreme Court that any act which entails punishment under the law would be unlawful act and such act cannot be said to be valid, thus, the act of sales being invalid for all intents and purposes; all sales/alienation, which had taken place during the pendency of the lis and in violation of the Court order/decree, are invalid and if, the same are allowed to exist it would amount to sanctioning of illegal acts of the violator of Court orders. In such circumstances, the Court, besides proceedings against violation of Court order under section 3 of Contempt of Court Act, 1976, can initiate action under Order XXI, Rule 32 and Order XXXIX, rule 2(3) of the Code of Civil Procedure for disobedience of its order and to prevent the abuse of the process of Court. It can also exercise inherent powers under section 151, C:P.C. for he achievement of ends of justice and for upholding the majesty of law.

17. To sum up, it may be observed that the proceedings initiated in the present case on the basis of application C.M.A. No. 1949 of 2001 are not in stricto senso criminal proceedings, therefore, it was not necessary for the Court to have framed formal charge against the ' appellants. On service of notice of contempt proceedings, the two appellants were well‑informed and aware about initiation and pendency of contempt proceedings against them and its ultimate consequences. In this background of the matter, in our view, full opportunity was afforded to the appellants to meet the case of respondents Nos. l to .4 with reference to violation of order dated 4‑8‑1998, which was admittedly within their knowledge at the time of commission of acts forming basis for initiation of contempt proceedings for violation of injunction order by the appellants. Thus, the arguments advanced by Mr. S. Sami Ahmed regarding non‑framing of charge/issue on non‑affording of the opportunity of hearing to the appellants before ordering their conviction by impugned order, have no force.

18. Further, examining the relevant facts of this case, it will be seen that disobedience of order dated 4‑8‑1998 with full knowledge has not been denied by any of the two appellants. Not only this, but as also rightly observed in the impugned order by the learned Single Judge, such defence was continued by them even after tiling of C.M.A. No. 1949 of 2001 dated 12‑3‑2001 without showing any remorse towards their conduct. In the impugned order, the learned Single Judge has taken care of each and every relevant aspect of the case in the light of the affidavit/counter affidavits, accompanied with bunch of documents placed on record by the parties and thereafter he has rightly come to an irresistible conclusion about gross wilful violation of the order dated 1‑8‑1998 vis‑a‑vis contumacious and irreverent attitude of the appellants. We have also taken notice of the facts specially with reference to the conduct of appellant Muhammad Anwar Malik that throughout not only he grossly violated the order dated 4‑8‑1998, but again he continued to show disrespect to the impugned order by not making compliance of the directions regarding deposit of rent amount illegally withdrawn by him from the office 'of Rent Controller, with the Nazir of this Court till this date. In such circumstances, in our view, rule laid down by the Honourable Supreme Court of Pakistan in the cases of Muhammad Aslam v. Mahmood Ali, Bakhtawar v. Amin and Muhammad Sabir Khan v. Rahim Baksh (supra) is fully attracted to the facts and circumstances of the present case and justify passing of impugned order by the learned Single Judge without framing any formal charge.

19. Looking to the case record and proceedings with reference to C.M.A. No. 1949 of 2001 in Suit No.576 of 1998, from no stretch of imagination, it could be said that while passing the impugned order due opportunity of hearing was not afforded to the appellants or the impugned order suffers from any technical/procedural shortcoming or violation of principles of natural justice. It will be pertinent to observe that both the appellants in their detailed counter affidavits accompanied with bunch of documents attached thereto have put up their best possible defence to resist C.M.A. No.1949 of 2001. Even if they had been allowed any further opportunity to lead evidence in the matter, for which they did not move to the learned Single Judge at any time during the pendency of contempt application for more than twenty‑one months, then too they could not have led any evidence beyond their own case/defence as set up in the counter‑affidavits. Moving one step further, if the contents of counter affidavits filed by appellants are taken into consideration at their face value, then too gross and deliberate violation of order dated 4‑12‑1998 is conclusively proved against both the appellants. Needless to mention that law does not permit parties to violate the order of the Court by mutual understanding/consent/ agreement or compromise, as at best pleaded and urged by the appellants.

20. After careful examination of case record, we have no doubt in our minds to express that prima facie a collusive game of fraud was played by the two appellants for violation of order dated 4‑8‑1998 and their conduct during the pendency of the C.M.A. No.1949 of 2001 was throughout contumacious. Learned Single Judge in his impugned order has thoroughly examined the case of both the appellants in a judicious manner and rightly convicted both of them for deliberate violation of order dated 4‑8‑1998.

21. The other submission of Mr. Sami Ahmed that the learned Single Judge while dealing with C.M.A. No.1949/2001 was not legally competent to issue any directions to the appellants for re‑deposit of rent in Court, are also ill‑founded. Suffice it to observe that to seek implementation of its order, to meet the ends of justice and ensure the supremacy of law, the Court can follow any course, which is not prohibited by law and for this purpose inherent powers of the Court conferred by section 151, C.P.C. could be exercised by it. Similarly the submission of Syed Tariq Ali, learned counsel for appellant Shoaib Yousuf that since he has complied with the directions issued to him in the impugned order, therefore, punishment awarded to him may be remitted, has no force, reason being that not only for withdrawal of rent deposited in M.R.C. No.160/1998 he was hand‑in -gloves with the other appellant but even after filing of C.M.A. No.1949/2001 for more than 21 months, he persistently flouted the order dated 4‑8‑1998.

22. For the foregoing reasons we find no substance in these appeals, which are accordingly dismissed with costs. The appellants be taken into custody and remanded to Central Prison Karachi to serve their respective sentences, awarded through impugned order. M.B.A./Y‑12/K Appeals dismissed.