2006 PLP 1193 (CLC)

KHAWAJA SHAHAD AHMED, J.

Through the instant petition for leave to appeal the judgment of the High Court, dated 20-5-2005 has been assailed whereby the appeal filed by the petitioners herein was dismissed.

2. The facts of the case are that a suit for permanent injunction was instituted in the Court of Senior Civil Judge, Mirpur in respect of the land measuring one Kanal, 8 Marlas comprising Survey No.6048 situated in village Kalyal Bainsi, Tehsil and District Mirpur along with the suit an application for temporary injunction was also filed. The trial Court issued the temporary injunction but later on vacated the same. However, on appeal the District Judge, Mirpur issued the temporary injunction which was served upon the respondents accordingly. The respondents, it is alleged, violated this order of the District Judge, therefore, the petitioners filed an application for initiating contempt proceedings against them. The District Judge after hearing the parties dismissed the application and the respondents were discharged from contempt proceedings vide judgment, dated 8-11-2004. The petitioner filed an appeal in the High Court which was also dismissed vide impugned judgment, dated 20-5-2005. This petition for leave to appeal has been filed to assail the impugned judgment of the High Court.

3. Ch. Muhammad Yunus Arvi, the learned counsel for the petitioners, contended that the judgment of the High Court is against law and facts of the case as such not maintainable. The learned counsel argued that the judgment of the High Court is outcome of misreading and non-reading of the evidence and that the provisions of Order XXXIX, rules 2 and 3, C.P.C. have wrongly been interpreted by the Courts below. He has argued that the evidence on record was sufficient to convict the respondents but the Courts below including the High Court have failed to punish the contemnors.

4. Mr. Muhammad Azam Khan, who appeared on behalf of the respondents strongly opposed the grant of leave on the ground that the respondents have not violated any order of the Court, therefore, the application was baseless. According to him the learned District Judges framed issues after hearing the contentions of the parties and recording of the evidence a commission was also appointed for local inspection and its report is also on the record, therefore, the District Judge and the High Court have arrived at a right conclusion in discharging the respondents from contempt proceedings.

5. I have heard the learned counsel for the parties and also gone through the record. The petitioners herein filed a suit for perpetual injunction regarding Survey No.6048 measuring one Kanal, 9 Marlas. Along with the suit an application for temporary injunction was also filed. The learned trial Court issued a stay order which was later on recalled on objections by the other side. An appeal filed in the Court of District Judge for stay order was accepted and the stay order was issued. The respondents were served with the order of the Court, however, they in spite of the stay order allegedly raised construction over the suit-land, therefore, an application for initiation of contempt of Court proceedings was moved against them. However, the said application was disallowed and the proceedings against the respondents were dropped. The petitioners filed an appeal before the High Court which was also dismissed. After due consideration, I am of the view that the disputed point of fact is as to whether the alleged construction made on suit-land has been effected before or after issuance of stay order by the District Judge. It is a settled law by now that in such-like cases contempt proceedings are not initiated. Similarly, without a detailed probe it cannot be held that the respondents have wilfully disobeyed the order of the Court because to constitute a punishable contempt a case of wilful disobedience has to be made. Two Courts below have not agreed to the version of the petitioners. Very strong grounds are required to grant leave particularly when there is concurrent finding of facts recorded by the two Courts below. There appear no valid reason to dispute the finding of the Courts below. The petition for leave to appeal is; therefore, dismissed. H.B.T./18/SC(AJ&K)????????????????????????????????????????????????????????????????????????? Petition dismissed.