P L D 1982 Lahore 459 (PLP)

The facts giving rise to this civil revision are that the petitioner, Muhammad Ashiq alias Ashiq Ali, filed a suit against the respondents, Mst. Razia Begum and others, for a permanent injunction restraining them from interfering in his possession over certain land. It was alleged by the petitioner that he was owner in possession of the said land but the respondents were threatening to interfere in his possession. Initially the suit was resisted by the respondents by filing a written statement in which the allegations made by the petitioner had been controverted. Subsequently, however, on 27th September, 1978, they made statements to the effect that they had nothing to do with the possession of the land in question and had no intention to interfere in the plaintiff's possession. They had also undertaken that they would never interfere in his possession. In view of this statement of the respondents, it was remarked by the learned Civil Judge that the apprehension of the petitioner was conjectural and, therefore dismissed the suit by placing reliance on, Kalo Khan v. Nisar Muhammad Khan and others (1). His order was challeged by the petitioner by means of an appeal but without. success. He has, therefore, come up in revision to this Court.

2. It was contended by learned counsel for the petitioner that the case of Kalo Khan was distinguishable on facts inasmuch as in the said case the defendants had not filed a written statement resisting the suit which had been done by the defendants in the instant case. It was also maintained by him that by making the aforesaid. statement the defendants, in effect, conceded the suit brought by the petitioner and, therefore, the proper course for the learned Civil Judge was to pass decree in favour of the petitioner and against the respondents. In addition, it was submitted by the learned counsel that in the event of any future interference by the respondents in the possession of the petitioner, he will be obliged to file a fresh suit and the exercise already done by him, with a view to protecting his possession, would be of no use to him.

3. I am afraid the distinction drawn by the learned counsel with a view to avoiding the application of dictum in the case of Kalo Khan is too insigni ficant to justify non‑observance of that dictum. In the case under report as well as in the case in hand the defendants had not confessed judgment, but had came out with the statement that they did not deny the title of the plaintiff to the disputed property and would not interfere in his possession over that property. The learned trial Court would have been obliged to bass a decree in. favour of the petitioner if the respondents had confessed' Judgment while putting in their written statement or, otherwise had, while making the aforesaid statement, also said that they had no objection to the suit being decreed. This was, however, not done by them and, therefore, in view of the ruling relied upon by the learned Civil Judge he was justified in making the order under challenge.

4. As for the apprehension of learned counsel for the petitioner that if the respondents were to interfere in the petitioner's possession over the disputed property he will have to bring a fresh suit in order to safeguard his possession, I am of the view that he will not have to do that in the event of the respondents not keeping up their undertaking. It has been clearly ruled in The State v. Zla‑ur-Rehman and others (2) that an undertaking given before a Court tantamounts to a stay order. The relevant observations read as follows :‑‑‑ (1) 1972 S C M R 602 (2) P L D 1973 S C 49 "The next contention advanced by the learned Advocate‑General is that even assuming that there has been a breach of the undertaking the act done by the Military Court, though punishable as a contempt, is not a nullity. 'This contention though ingenious is not tenable. A party committing an intentional breach of his undertaking, which is tantamount to a stay order, cannot be allowed to take advantage of his own wrong. In such cases, in addition to punishing the defaulter, the Court is duty bound to put back the suffering party in the position where he would have stood if the breach had not been committed. On this principle too the position will be that the Courts will, in the present case, treat the finding and sentence as not having been recorded, as if the undertaking has not been violated." Since the undertaking by the respondents had been acted upon by the learned trial Court it is, for all practical purposes, like a permanent injunction issued by the said Court and if the undertaking is not observed by the respondents, it will amount to the disobedience of the injunction granted by that Court.

5. In view of what has gone above, the orders of the two Courts below, which have been assailed in the present petition, do no call for any inter ference. The petition is, therefore, dismissed in limine. s. A. H. Petition dismissed.