2004 PLP 365 (CLC)

2. A short factual background of the case is that respondents Nos. l to 5 filed an appeal before the Additional District Judge, Kharian against the order, dated 22-10-1998 passed by the trial Court restraining the petitioner from alienating the property in dispute and allowing him to complete his constructions by laying lintel at his own costs and risk and in these terms application of the respondents Nos. l to 5 seeking temporary injunction, pending their suit, was disposed of.

3. Respondents Nos. l to 5 aggrieved of the order, dated 22-10-1998 allowing the petitioner to complete his lintel, filed an appeal before the Additional District Judge, Kharian, who on the same day suspended the operation of the order, dated 22-10-1998 passed by the trial Court.

4. Pending the appeal respondents Nos. l to 5 filed an application under Order XXXIX, rule 2(3), before the Appellate Court for initiation of proceedings of disobedience of order, dated 22-10-1998 against the petitioner and respondents Nos.6 and 7 on the ground that they being aware of order passed by the Appellate Court, intentionally completed their constructions work and thus, violated the order exposing themselves to penal action. The petitioner being respondent in this application, filed written reply and denied the allegation of the respondents Nos. l to 5 which necessitated framing of issues and recording of evidence whereafter Appellate Court through impugned judgment, disposed of application of the respondents Nos. l to 5 in the terms noted above. The petitioner has challenged this order by filing the instant appeal before this Court.

5. Learned counsel appearing on behalf of the appellant submits that since there was no injunctive order passed by the Appellate Court and the order by which order appealed against was suspended, cannot be termed as prohibitory order as such there was no question of proceedings against the petitioner, for violation of the stay order. He further contends that the Appellate Court while deciding the matter of violation of stay order misread the evidence, which did not prove violation of the order of the Appellate Court thus, the order impugned is not maintainable.

6. Learned counsel appearing on behalf of the respondent besides supporting the judgment/order of the Appellate Court controverted the submission of the petitioner and submitted that the Appellate Court has already taken a lenient view because the complained activity of the petitioner is not only deliberate but is also intentionally.

7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Before discussing merits of the case, it is necessary to determine import and impact of order; dated 22-10-1998 passed by the Appellate Court on appeal of respondents which reads as under:-- "In the meanwhile the operation of the impugned order is suspended." This order clearly conveys that the order passed by the trial Court was suspended and there was no prohibitory order, in the field. The Appellate Court did not restrain the petitioner from raising any kind of constructions over the property in question and thus, there was no question of proceeding against the petitioner under the provisions of Order XXXIX, rule 2(3), C.P.C. I am not ready to accept interpretation of the learned counsel for the respondents that by suspension of order, dated 22-10-1998 passed by the learned trial Court, its interim order restraining the petitioner from raising constructions, stood revived. It is so because on the one hand interim order of the trial Court merged into final order disposing of application of the respondents Nos. l to 5 seeking temporary injunction and in presence of a final order, any previous interim order would not remain binding on the parties, whereas on the other hand Appellate Court has not restrained the petitioner from raising/completing his constructions. In this manner I find that in absence of any binding order, proceedings under Order XXXIX, rule 2(3) of C.P.C. were not warranted.

8. The petitioner in his reply to application under Order XXXIX, rule 2(3), C.P.C. had denied the allegation of deliberate violation of orders passed by the Appellate Court and he while appearing as R.W.1 categorically deposed that he was served with the order of the Appellate Court on 25.,10-1998. He also reaffirmed in his cross-examination that his service was effected after the completion of construction in question. Respondents No. l to 5 have themselves in para. 3 of their application stated that the petitioner laid lintel on 24-10-1998 which shows that by the time petitioner was served with the order of the Appellate Court, constructions (lintel) had already been laid down. Law, by this time, is settled that the suspension order will take effect from the date of service of person to whom it is directed. A Full Bench of this Court while differentiating between a prohibitory and a status quo order, very clearly laid down that a status quo order will become operative the moment it is passed whereas other injunctive orders would become effective from the time those are served on the parties to whom those are directed. This view was taken in the case reported as PLD 1949 Lah.

100. A similar view was taken in a number of other cases i.e. Lt.-Col. Mahmood Khan Durrani v. Syed Noshab Ali 1984 CLC 620, Muhammad Rashid v. Iyaz Khan and others PLD 1978 Lah. 919, Haji Abdul Jalil v. Javid Ahmad 1983 SCMR 869, Mst: Ramzan Bibi v. Mst. Amina Bibi represented by successors-in-interest PLD 1970 Lah. 371 and Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Limited and another 1991 CLC 149.

9. From the above resume of facts I conclude that besides the fact that there was- no binding injunctive order restraining the petitioner from undergoing with the constructions, order, dated 22-10-1998 passed by the Appellate Court was served on the petitioner on; 25-10-1998, whereas laying of lintel had already completed on 24-10-1998 thus, the petitioner has not done anything in violation of order of the Appellate Court.

10. There is yet another aspect of the case whereunder it appears that the order on appeal of the respondents. Nos. l to 5 was passed on 22-10-1998 in late hours of the day, as admitted by respondent No.2, who appeared as his own witness as A.W.1. He stated in his cross- examination that on 22-10-1998 the trial Court had announced its decision at about 12-00/1-00 p.m. and they had filed appeal on the same day at about 3-00/4-00 p.m. It clearly conveys that notice on this appeal could not be served till 5-00 p.m. on 22-10-1998, as deposed by A-.W.1. In the month of October sun sets at about 5-00 p.m. Ghulam Sarwar respondent No.7 was claimed to be a contractor who was undeniably out of country, in those days and the petitioner was admittedly an illiterate person was not shown to have been served on 22-10-1-998. There is no explanation by the process-server or the respondents Nos.1 to 5 as to why process-server inscribed his report on the notice Exhs.A.1 and A.2 on 28-10-1998. Witnesses in whose presence, notices were served on the petitioner have not been examined and the process-server bas not been produced in the witness-box thus, I conclude that the petitioner was not served on 22-10-1998 and was not aware of the order of the Appellate Court at the time when he laid the lintel on 24-10-1998. ,

11. From what has been discussed above, I conclude that the proceedings under Order XXXIX, rule 2(3), C.P.C. were not warranted and the order impugned', directing demolition of constructions and imposing fine on the petitioner are not sustainable at law. This appeal, consequently succeeds judgment/order, dated 24-4-2003 passed by the Additional District Judge, Kharian is set aside and the application filed by the respondents Nos. l to 5 under Order XXXIX, rule 2(3), C. P. C is dismissed, leaving the parties to bear their, own costs. H.B.T./F-217/L Appeal succeeded.