2002 PLP 592 (CLC)

"After going through the record we are, satisfied that the petitioners are non‑evacuees. In this connection reference may be made particularly to the order of the Central Government, dated 22nd day of May, 1950 under section 3 of the Ordinance XV of 1949, thereby Paromal held to be non‑evacuee by the Assistant Custodian by his order, dated 5th April, 1958. Mr. S.M. Raza the learned Advocate for respondent in these circumstances had to concede that respondent No.1 be directed to dispose of the application of the petitioners for restoration of the property in accordance with the. law. He, however, submits that the property in dispute was allotted to his clients Ashiq Ali and others against their verified claims under the Land Settlement Act. We would, direct that the Settlement Authorities may consider the claim of Ashiq Ali and others and settled them on some other available agricultural land in lieu of their verified claims. ???????????? ?????????????????????????????????????????????????????????????????????????????????? (Sd.) Mr. Justice Inamullah. ???????????????????????????????????????????????????????????????????? (Sd.) Mr. Justice Wahiduddin Ahmed." A copy of said judgment is on record. It is pleaded that one Abdul Qadoos Behari acting as probono publico and in the capacity of attorney of some of the petitioners concealing the abovesaid D.B. judgment moved an application bearing No.F.4(3) of 1965, before the Custodian on 15‑2‑1965. The application was forwarded by Custodian to Additional Custodian for enquiry and report vide order, dated 6‑3‑1965. The Additional Custodian submitted report, dated 27‑5‑1965 to the effect that Hiranand, Vasomal, Vaniabai and others had played fraud upon the Custodian and High Court and obtained order from the High Court by fraud. It is submitted that a collusive order was passed on 28‑8‑1965 without issuing notice to the contemners. It was only after the efforts of Pritamdas that the file was traced out and learned Custodian was pleased to pass an order, dated 29‑5‑1974. The substance of which is reproduced as under:‑‑ "(i)??????? My attention has been drawn to the judgment, dated 24th February, 1965 passed in, Writ Petition No.623 of 1962 in the High Court. (ii)??????? No appeal was filed against the judgment of the High Court as mentioned above. This means that this matter was finally decided and the chapter of the litigation about the property mentioned above was closed for every one including the Custodian, was bound by law to honour this judgment and nobody could be permitted by law to reopen this matter in any manner or form. (iii)?????? It is even pertinent to note that the Advocate for respondent No.2, the aggrieved party, had conceded that the opponent and his property were both non‑evacuee even the Settlement Department which was represented by Mr. Wasim and through Mr. S.M. Raza, Advocate did not feel aggrieved by this order. Under these circumstances, how Abdul Qaddus Behari mustered up his courage to misguide the Custodian by suppressing this order of the High Court. The Custodian was not an aggrieved party, after the abovementioned order and why he was moved to file a suit instead of respondent No.2 and it is still more strange that the Custodian without ascertaining the legal position and without notice passed the orders mentioned above." It is argued that the order passed by Honourable D.B. of this Court still holds field and subsequent order, dated 21‑12‑1989, passed by learned Single Judge has not overriding effect. The subsequent order of Honourable Single Judge is nullity in the eye of law. Contemner .No.X Mst. Shirimati Vanibai has died during the pendency of the matter. The respondent/contemners Nos.X and XI were not issued any notice in the Petition No.872 of 1974. The order was obtained in their absence. They were absolutely not in the knowledge of the order and no violation has been made by them. The contempt application is not maintainable in the eye of law. The counter‑affidavit filed by the contemner Pritamdas has not been rebutted by way of rejoinder. The contempt application is misconceived and is moved to pressurize the contemner Pritamdas. Mr. Muhammad Sharif learned counsel appearing for contemners Nos.l and 3 to 9 has mainly adopted the arguments of Mr. Naraindas Motiani but he added that the contemners Nos. l to 9 were not party to the High Court. There is no proof on the record that the order passed by this Court was served upon them. It is stated that the Government was not even party in the petition. No contempt has been committed by the alleged contemners. On the day when this order was passed by this Court, no proceedings were pending before Custodian. Learned counsel relied upon cases (1) Syed Ahmed Shah and (2) Feroze Deen v. Malik Abdul Aziz PLD 1967 SC 42, Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97, Abdul Majid and another v. Bashir Ahmed 1988 CLC 1370, Mst. Saeeda Akhtar and others v. Lai Din and others PLD 1981 Lah. 623, Soomar v. Noor Confectionery Works‑1988 MLD 206; Lai Chand v. Sohan Lal and others AIR 1938 Lah. 220 and Puzhakkal Edom v. Mahdeva Patter AIR 1919 Mad.

772. The perusal of record shows that the order, dated 24‑2‑1965 passed by the Division Bench of this Court has attained finality, sp also the order, dated 21‑12‑1989 passed by Single Bench of this Court in this Constitutional petition.. The legal position is clear, therefore, I do not want to comment upon the two orders as both the orders have not been challenged. The order, dated 21‑12‑1989 is to the effect that the possession of petitioners shall not be disturbed till the decision of application. There are no such allegations in the contempt application that the petitioners have been dispossessed by the contemners during the pendency of application before Custodian. There is no concrete proof that possession of petitioner was ever disturbed. The grievance of the petitioners is only in respect of sale and mutation of record of right. The contemner No.X has expired during pendency of application. The contemner No.XI was not present at the time of passing order in Constitutional Petition No.S‑872 of 1974 on 21‑12‑1989. The remaining contemners were not party in the petition. During arguments, on my query, the learned counsel for applicant stated that there is no proof on record from which it could be deduced that the contemners were served with the order or they were in the knowledge of order, dated 21‑12‑1989 and they deliberately disobeyed or violated it. The contents of affidavit filed by contemner No.XI have not been controverted by way of filing of rejoinder. In view of above position, no offence of contempt of Court by the contemners has been proved. The application which is pending since 27‑8‑1996, deserves to be dismissed with no orders as to costs. Q.M.H./M.A.K./N‑84/K Application dismissed.