1986 PLP 160 (CLC)

"There was no compound wall on the front of boundary of the subject plot (Photo 'B'). There was a 4 block high wall on the back side boundary of the plot and a shed type room 10' x ,10' adjacent to this boundary wall inside the plot which was made of cement blocks with tin sheets on its roof having no door (Photograph 'C')." The Nazir/Commissioner also found about 500 cement blocks lying on the site which were claimed by the plaintiff to be his property. On 10‑10‑1979 the Court considered this report and after hearing the parties, passed an order, the relevant portion whereof may be quoted:‑ "It is clarified that the order of maintaining status quo passed on 15‑9‑1979 will apply not only to the question of possession and transfer but also to construction." This order settled the controversy for the time being. Then on final hearing of the injunction application the order of status quo was confirmed by order, dated 9‑8‑1980. On 3‑2‑1985, the present application Civil Miscellaneous Application No. 388 of 1985 came to be filed on behalf of the two defendants and the grievance raised is that the order, dated 9‑8‑1980 has been flagrantly violated by the plaintiff. It is further contended in the application that "the plaintiff has thus disobeyed the orders, dated 9‑8‑1980 and have committed breach of the same and has become liable for action by this Hon'ble Court under Order XXXIX, rules 2(3), C.P.~C. It is, therefore, prayed that this Hon'ble Court will be pleased to order that the plaintiff be restrained from raising any further construction on the plot in question. It is prayed that this Hon'ble Court will be further pleased to pass necessary orders for taking action against the plaintiff for committing breach of the order, dated 9‑8‑1980 passed by this. Hon'ble Court" On this application the Court passed an order, dated 4‑2‑1985 appointing Mr. Mohammad Kaleem Siddiqui, Deputy Registrar (Judicial) as Commissioner "to inspect the site after informing the Advocate for the plaintiff on phone. He would submit his report about the position of work, if any, carried out at the site in dispute". In compliance of this order Mr. Muhammad Kaleem Siddiqui visited the site and filed his report on 5‑2‑1985. He has also filed a number of photographs showing the state of construction undertaken, complete and incomplete and also noted in his report that "it appears from the material lying there that the work is in progress". It is a detailed report and leaves no room for doubt that the plaintiff in flagrant violation of the orders passed by this Court has not only raised substantial construction on the plot, but is carrying on regular trade of furniture business on the plot. The following extracts from the report would show the state of construction on the plot:‑ "The construction on the plot Ls of Block masonry, covered with tin sheds and divided into 5 portions. Front portion is just like a show‑room for furniture etc., with 2 small rooms on its back, and then 2 godowns in the back portion. No R.C.C. construction was found there. The construction is of block masonry, ordinary whitewashed, partly plastered and partly without plaster. The show‑room, on the main road, is covered with new iron galvanised sheets fixed on new iron angle beams supported with 7 iron poles and 7 block masonry pillars (plastered) which appears to be quite new. It is partly forecealing with plywood which is incomplete. Some electric wiring work has been done and some work is pending and incomplete, as new cable was hanging from the forecealing. The said show‑room has 5 new shutter doors fixed on iron angles. The flooring is new, made by ordinary cement appears to have been made within a few days. The whole construction including doors, beams and whitewash is new, raised within a month or two approximately. There is no electric line or meter on the plot. It appears from the material lying there that the work is in progress." It is not necessary to give further details of the construction mentioned in the report and the photographs filed with this report. When this application came up in Court for hearing, Mr. Nizam Ahmed emphasised that the findings in the report call for a preventive and prohibitive action by the Court in order to arrest further mischief being done to his client. The learned counsel relying on a case reported in 1968 S C M R 557 vehemently urged that the plaintiff should be committed to civil prison not only as a penal action, but also as a preventive measure to restrain him from further improving his title till the time of the hearing of the suit by this Court. Mr. Dewan Bashir Ahmed, learned counsel for the plaintiff tried to justify the action of his client instead of expressing regret and instead of pleasing for mercy and offering to abide by the injunction order passed against his client. His only argument was that the sheds have been constructed by the employees of defendant in August, 1983, when he was detained under M.L.O. 78, in order to protect the valuable furniture which his client is stocking for trading purposes. In the circumstances this defence seems to be factually incorrect and legally not sustainable. There is no supporting affidavit of any such employee. Nor any positive. assertion that this huge construction was raised by that employee at his own expense and not with concurrence or approval of the plaintiff. Nor any explanation what steps the plaintiff took or what anxiety did he show to undo this grave wrong that had been committed during his absence. The absence of all these factors indicate that this is a dishonest defence. Moreover, the very fact that the plaintiff is using this construction and carrying on his trade speaks volumes of his behaviour. On top of it all the latest report of Mr. Muhammad Kaleem Siddiqui shows that not only the construction is new but it is still in progress. He did not C and indeed could not deny all this huge construction now found to be existing on the site which has been raised after the injunction order. Now it remains to be seen, that in view of this admission that all this construction has been raised in violation of the preventive and prohibitory injunction vide orders, dated 15‑9‑1979 read with order dated 10‑10‑1979, what action should be taken against the plaintiff. I think the answer is provided in rule 3 of Order XXXIX which runs as under:‑ "(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained, in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release." It is to be noted with regret that the tendency to treat with indifference orders of injunction and failure to bestow that degree of respect and submission to the orders of injunction passed by the Court is becoming more and more frequent. It is time that parties should realise that these injunctions are issued with great care and caution after fully weighing the relative convenience and inconvenience of the litigants and once issued they are meant to be faithfully observed and obeyed. Fully conscious of the fact that the powers given to the Court under rule 3 of Order XXXIX, should be reluctantly invoked, never theless in such extreme cases of flagrant violation as the present case there should be no inhibition in the mind of the Court to invoke the jurisdiction conferred by this rule. Mr. Nizam Ahmed has relied on 1968 S C M R

557. In this case the contemner was committed to the civil prison for six weeks and the Supreme Court refused to interfere with this order and leave was refused by the Supreme Court in this case. In another case i.e. A I R 1963 Rajisthan 3 it was held that "the object of such an order is to safeguard the rights of a party against a threatened invasion by the other party". In the circumstances particularly in view of the threatened action and preparations of the plaintiff to raise more and more construction in future, it is necessary to arrest the mischief at this stage. I would not order demolition of the construction, but I feel that it would be necessary to pass the following orders:‑ (1) That the property in suit should be attached and the control of the property should be taken by the Nazir of this Court. It should be sealed in the first instance after preparing an inventory of the goods lying in the unauthorisedly constructed show‑rooms and godowns in presence of the parties. The plaintiff would be at liberty to remove any articles from the premises if he so desires. (2) The plaintiff should be committed to civil prison for a period of one week to ensure that no further violations are committed and he does not enjoy an advantageous position over the defendants and the order of the Court for keeping status quo on the property is honoured as far as possible even after the construction has been raised. With these observations this application is disposed of. M . Y . H Petition accepted