1988 PLP 1370 (CLC)

Iftikhar Ali v. Javid Dastgir Mirza and 6 others P L D 1975 Lah. 126 fol. Maulvi Siraj‑ul‑Haq for Petitioners. Respondent: Ex parte. Dates of hearing: 2nd and 3rd April, 1988. This revision petition arises out of the judgment, dated 22‑7‑1981 passed by the District Judge, Jhelum to dismiss an appeal filed by the two petitioners against the order, dated 25‑6‑1981 passed by Mr. Atta‑ul‑Mohsin Lukk, Senior Civil Judge, Jhelum under Rule 2(3) of Order XXXIX of the C.P.C. holding them guilty of disobedience of the order of status quo passed by the then trial Judge on 28‑7‑1980, and then confirmed after site inspection, to prohibit construction of wall of his house by Ghulam Mohy‑ud‑Din in such a way as to obstruct the passage of water through the drain in dispute, as had also been ordered by the District Judge in an appeal filed by the plaintiff against the ultimate rejection of his application for issuing temporary injunction.

2. In his order, dated 7‑6‑1981, the Senior Civil Judge held that Abdul Majid was not a party to the suit when the prohibitory order was passed and had been joined as defendant No.2 on the basis of an application made by the plaintiff near about the time that he made the site inspection in consequence whereof he dismissed the application for the reason that the drain had since been included in a house whereby the application itself had been rendered infructuous. Since the situation on the spot had been rendered different from the one observed by the then trial Judge at the time of confirmation of the interim order of status quo and both the defendants had denied responsibility for this change, therefore, in attending to the application complaining of disobedience of the prohibitory order, the Senior Civil Judge left it to be decided on the basis of evidence as to who had closed the drain and when? Parties were allowed opportunity to adduce evidence in support of their respective stands and, thereafter, by his order, dated 25‑6‑1981 the Senior Civil Judge found the two defendants guilty of disobedience of the prohibitory order and his conclusion may better be reproduced in extenso in his own words as:‑ "Ghulam Mohy‑ud‑Din was bound by the stay order and it is quite clear that at his instance the drain in question has been closed by Abdul Majid, respondent No.2. No doubt Ghulam Rasool father of Abdul Majid is owner of his house who is not party to the suit but in the instant case, the owner is not necessary to be impleaded as party and only the person who threatens or violates any right of the plaintiff can be restrained by the temporary injunction. Abdul Majid respondent, in his statement admitted that he was aware about the pendency of this suit which is pending for the last one year. Both the respondents have denied that they have closed the drain. It is thus, clear that drain has been closed by the respondent, when the stay order was in the field. No doubt that Abdul Majid respondent was not party to the stay order but the person to whom a stay order is told or brought to his notice is also legally bound to obey and honour that order. Since, the respondent was aware about the injunction in the matter, therefore, he is also liable if he is proved to have violated that order. From the above, I hold that both the respondents have violated the status‑quo order of this Court and have closed the drain in question and are liable for punishment under the law."

3. Both the defendants filed an appeal before the District Judge who concluded in paragraph 7 of his judgment, dated 22‑7‑1981, impugned herein, that the drain in question had been closed by Abdul Majid and despite it, he proceeded to uphold the verdict of disobedience even against Ghulam Mohy‑ud‑pin and dismissed the appeal in its entirety. He did not find any force in the contention that since Abdul Majid was not a party to the previous proceedings, therefore, he could not be found guilty of disobedience of the prohibitory order passed earlier against Ghulam Mohy‑ud‑Din. He observed that there was no distinction in Rule 2(3) of Order XXXIX about the person being a party to the suit or not and anyone found guilty of disobedience of a prohibitory order passed by the Court could be suitably dealt with for such a breach.

4. The two defendants have now come up to this Court on revision. the plaintiff‑respondent has not turned up in spite of legal service effected on him and has been proceeded ex parte under the order, dated 5‑10‑1983. 5, It is argued that as has been held in Muhammad Juman and another v. Mst. Aqlan and 2 others P L D 1980 Kar. 108, local inspection cannot become a substitute for evidence and, hence, no decision could be founded thereon. It is maintained also that whereas there was no rational link available between the reasoning and conclusion recorded by the trial Court who appeared to have acted only arbitrarily in taking penal measures against the two petitioners; the judgment passed in the appeal below suffers from inconsistency in so far as Ghulam Mohy‑ud‑Din is concerned and the appeal has been illegally dismissed qua him despite a distinct conclusion reached by the District Judge himself that Abdul Majid had closed the drain and, more particularly so, because of the absence of any finding reached by him against Ghulam Mohy‑ud‑Din. The submission has considerable force inasmuch as rejection of his appeal in the presence of breach of the prohibitory order having been held to have been committed by Abdul Majid is irreconcilable with the result of the A appeal below in the absence of any finding reached therein against Ghulam Mohy‑ud‑Din who cannct be punished even as an abetter. Mawazzam Ali Khan and others v. Shebazh Chandra Pakrashi and another A I R 1927 Cal. 598 may be cited as a precedent case in this context.

6. For the other petitioner Abdul Majid, reliance is placed on two Full Bench Judgments of this Court reported respectively as Karam Ali and others v. Raja and others P L D 1949 Lah. 100 (F.B.) and Mian Sultan Ali Sanghiana v. Mian Nur Hussain P L D 1949 Lah. 301 (F.B.) and in addition thereto attention is also invited to the observations made in Iftikhar Ali v. Javid Dastgir Mirza and 6 others P L D 1975 Lah. 126 (D.B.) to contend for Abdul Majid that in law he could not be punished for the assumed disobedience of the status‑quo order inasmuch as he was not a party to the proceedings at the stage of passing and confirming of the status‑quo order which was thus, neither passed against him nor addressed to him. The precedent cases fully support the submission and it is, therefore, held that the petitioner Abdul Majid could not be held liable to be punished for breach of the status‑quo order and his appeal has been unlawfully dismissed below so that its non‑acceptance amounts to omission to exercise the jurisdiction by law vested in the District Court.

7. Net result of the foregoing is that this civil revision succeeds and is accordingly accepted by setting aside the relevant orders of the two Courts below as having been passed without lawful authority and being of no effect. Costs of the petitioners all along will be paid by the respondent. A . A . / A‑337/ L Revision accepted.