1989 PLP 92 (MLD)

Muhammad Iqbal for Respondent. Date of hearing: 14th January, 1989. The petitioners in the civil revision were found by the trial Court vide its impugned order, dated 8th of February, 1986, to have violated the order of temporary injunction issued by it on 26th of October, 1982 and they were ordered to be detained in civil prison for a period of one month and further directed to restore the status quo ante by removing the superstructure from the suit land and delivering its vacant possession to the respondent. The appeal filed by the petitioners against this order was dismissed by the learned Additional District Judge, Gujrat on 3rd of March, 1986. Hence this revision petition.

2. Briefly stated the facts forming background of the dispute are that on 26th of October, 1982, Muhammad Sabir had filed a suit for permanent injunction restraining the petitioners from interfering in his possession over the land measuring 5 kanals 4 marlas bearing Khasra No. 1692, situate in Mauza Traila, Tehsil and District Gujrat and from raising any construction thereon. On an application for temporary injunction filed by the respondent the trial Court passed an interim order directing maintenance of status quo. On 1st of November, 19132, an application complaining of the violation of the interim order was filed by the respondent which was contested by the petitioners by Cling their reply in which they stated that they had not violated the temporary injunction and the construction complained of, had already been raised and completed by there before the tiling of the suit. On 16th of March, 1984 the learned trial Court framed the following issue on the application aforesaid:‑‑ "Whether the defendants have violated the order of the Court dated 26?-10‑1982; OPP" On this issue, the respondent produced Syed Hamid Ali, Advocate, who had earlier been appointed as Local Commissioner by the trial Court, to prove his report dated 19‑11‑1982, Ex. A‑1, and Syed Khalid Hussain, Process Server as A.W.2, who had served the petitioners with a notice of temporary injunction. The petitioners, however, did not lead any evidence but on 17th of June, 1984 made a statement admitting that they had violated the temporary Injunction but explained that or the parties had entered into a compromise in pursuance of which the land was partitioned between the parties and the respondent had assured them that he will withdraw the suit on account of the compromise. They stated that they did not wish to lead any evidence but pleaded for mercy. Subsequently during the course of arguments, another statement was made by the counsel for the petitioners and Akhtar Ali, petitioner that a Local Commissioner be appointed for the purpose of demarcation and in case it was found by the Local Commissioner that any construction existed on the disputed land, they shall remove it at their own cost and responsibility and after doing so deliver the vacant possession to the respondent. On the basis of the statement, the trial Court appointed Rana Farooq, E.A.C. Kharian, as the Local Commissioner, who after inspecting the spot submitted his report on 29th September, 1984, according to which the petitioners were found to have encroached upon an area of 94' x 25' out of the disputed Khasra No. 1692. The learned trial Court after hearing the arguments came to the conclusion that the petitioners had violated the temporary injunction issued by it, and therefore, directed that they be detained in civil prison for a period of one month. They were also ordered to remove the construction raised by them in violation of the order of temporary injunction and deliver vacant possession of the land to the respondent. In the appeal filed by the petitioners the learned Additional District Judge, Gujrat took the view that the petitioners themselves admitted their guilt in the statement made by them on 17th of June, 1984, and as such there was no necessity for holding any further proceedings or appointing a Local Commissioner, whose report was being objected to by the petitioners. In view of the admission of the petitioners, the appeal was found to be without merit and was dismissed.

3. The learned counsel for the petitioners has firstly contended that the petitioners did not violate the order of temporary injunction and the findings of the two Courts below were not substantiated by the evidence on the record. There is no force in this contention. In the reply to the application for temporary injunction, the petitioners took the plea that the disputed construction had been raised by them before the suit was filed. The respondent in support of his application had produced two witnesses namely, Syed Hamid Ali and Syed Khalid Hussain, A.W.2, according to whose statement said construction was raised subsequently. Although an opportunity was granted to the petitioners but they did not lead any evidence in rebuttal. They instead, on 17th of June, 1984 admitted that the construction was raised by them in violation of the temporary injunction issued by the Court. They tried to justify this action by asserting that it was on account of a compromise between the parties. They further stated that the respondent had assured them that he will withdraw the suit. In view of this categorical admission on the part of the petitioners and the evidence led by the respondent, no fault can be found with the findings of the trial Court. The position taken up by them in the statement made on 17th of June, 1984 was clearly an afterthought as it was never raised in the reply to‑the application under Order XXXIX, rule 2(3), C.P.C. in which they had pleaded that the construction was raised before the suit was filed or temporary injunction issued.

4. The learned counsel for the petitioners has also objected to the order of the trial Court directing restoration of status quo ante. It is, however, to be seen that the petitioners themselves had prayed in the statement, dated 12th of July, 1984 that a Local Commissioner be appointed and if it was found by him .... that they had raised any construction on the suit land, they shall remove it and deliver the vacant possession of the land underneath to the respondent. It was on their request that the learned trial Court had appointed Rana Farooq, EAC/Magistrate 1st Class, Kharian as a Local Commissioner. He inspected the spot in the presence of the parties alongwith the Revenue staff and found that the petitioners had encroached upon an area measuring 94' x 25' out of Khasra No. 1692. A plan was also prepared by the Local Commissioner. In these circumstances, I do not see how the petitioners could go back on their own undertaking and they cannot be permitted to do so. Even otherwise, it is well-settled that if an act is done by a party in violation of the temporary injunction, the Court can direct the restoration of status quo ante. Reference m B this connection may be made to Bakhtawar etc. v. Amin etc. 1980 SCMR

89. It was lastly contended by the learned counsel that in view of the facts and circumstances of the case, the learned trial Court had acted harshly in ordering the detention of the petitioners in civil prison for a period of one month. Keeping in view the overall circumstances of the case, I feel that the detention of the petitioners in civil prison for a period of one week will meet the ends of justice. In this view of the matter, I modify the order of the Courts below and direct the detention of the petitioners in civil prison for a period of one week from the date they are taken into custody. The petitioners are further directed to remove the constructions raised by them over the disputed land in terms of the report of the Local Commissioner and to deliver the possession to the respondent forthwith. In these terms the revision petition is disposed of. No order as to costs. H.B.T./A‑501/L ????????????????????????????????????????????????????????????????????????????????? Order accordingly.