1984 PLP 2896 (CLC)

(a) Contempt of Court Act (LXIV of 1976)‑‑ ‑‑‑S.3‑‑L.aw Reforms Ordinance (XII of 1972), S.3‑‑Civil Procedure Code (V of 1908), O.XXXIX, r.2(3)‑‑Contempt‑‑To constitute punishable contempt disobedience, held, must be wilful‑‑Mere unintentional disobedience of judgment, order or process of Court amounted to a contempt in theory only and did not render accused liable to punishment. Pitrus Lahara v. R. V. Daial A I R 1953 Nagpur 179; Radhamohan Rana v. Govirda Gopalananda A I R 1951 Orissa 230; State of Bihar v. Rani Sonabati Kumari A I R 1954 Pat 513 and N. Baksi v.

0. K. Ghosh A I R 1957 Pat 528 rel. (b) Contempt of Court Act (LXIV of 1976)‑‑ ‑‑‑S.3‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Civil Procedure Code (V of 1908). O.XXXIX, r.2‑‑Contempt‑‑Knowledge of order of Court and deliberate disregard of same, held, essential to constitute contempt. Mushtaq Hussain v. Editor, Daily "Dawn" English and others P L D 1964 (W.P) Kar.367,; P. S. Tulja Ram Rao v. Sir James Taylor, Governor of Reserve Bank of India and others A I R 1939 Mad. 257; Tarafatullah Mandal v. S. N. Mattra A I R 1952 Ca1.919; Ram Chandra v. Debi Dayal Dubey A I R 1955 All. 483; Thakur Bhawani Singh v. Sugan Charan I L R 1953 Raj 85; Narain Singh v. S. Hardayal Singh Hinka A I R 1958 Punj 180 and The State v. Muhammad Pinyal P L D 1967 Kar.652 rel. (c) Contempt of Court Act (LXIV of 1976)‑‑ ‑‑‑S.3‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Civil Procedure Code (V of 1908), O.XXXIX, rr.1 & 2‑‑Contempt‑‑Discharge of notice of ‑‑Appeal ‑‑Single Judge discharging notice of contempt accused influence by fact that accused had no knowledge of order of status quo and that he had made amends and restored property in position as it was before passing of order‑‑Single Judge, held, could not be said to have acted improperly in discharging contempt notice. (d) Contempt of Court Act (LXIV of 1976)‑‑ ‑‑‑S.3‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑Civil Procedure Code (V of 1908),O.XXXIX, r.2‑‑Contempt‑‑Injunction‑‑Injunction granted against municipal Corporation, held, would bind all its officers although they may not be parties to suit in which order passed‑‑Any disobedience by such officers with knowledge of injunction would render them liable for contempt even if order had not been served on them. Naimuddin, J.‑‑ This appeal under section 3 of Law Reforms Ordinance, 1972 read with section 15 of Ordinance X of 1980 is from the order of a learned Single Judge of this Court, dated 20th March,1984, discharging the notice of the application under Order XXXIX, rule 2(3), C.P.C. in the following circumstances. The appellants filed a suit, being Suit No.46/1984, on the original side of this Court praying for perpetual injunction restraining Karachi Municipal Corporation, Municipal Commissioner, Karachi Municipal Corporation, their servants, contractors etc. from committing any act of trespass: on the plot of land bearing Survey No.135, Deh Digh, Tapo Malir, Taluka and District Karachi, situated in between the boundary wall of Hockey Stadium and public road, Opp. Natha Khan Goth, Karachi (herein after called the plot of land). Alongwith the suit, the appellants also filed an application under Order XXXIX, rules 1 and 2, C.P.C. for interim injunction restraining the respondents from committing any act of trespass on the plot of land. On 24th January,1984, the learned Single Judge ordered notice of the application for 26th January,1984 and meanwhile directed the maintenance of status quo as to the property. It is the case of the appellants that on 25th February,1984, in disobedience of the order of the status quo, the staff of the respondents came at the site alongwith labour and necessary equipment and started construction of the fencing on and around the plot of land which action led to the filing of an application under Order XXXIX, rule 2(3), C.P.C. On 27th February,1984, the said application came up for hearing. Nazir was appointed as Commissioner to inspect the plot of land and submit factual report about the position of the plot of land. In reply to the application, counter‑affidavit of Abdul Waheed, Executive Engineer, Malir Division, Karachi Municipal Corporation, was filed and the statement was also made on behalf of the respondents that the fencing was erected on 25th February,1984 and partly on 26th February, 1984 as the Executive Engineer concerned had no knowledge of the status quo order. However, on 12th March,1984, when the application came up for hearing, the learned Single Judge directed the respondents to remove the fencing so as to put the plot of land in the same condition as it was on the date of passing of the status quo order and adjourned the hearing of the application to 20th March, 1984. When the application accordingly came up for hearing, the learned Single Judge finding that the fencing had already been removed did not consider it proper to take any further action on the contempt application and consequently discharged the notice of the same. Aggrieved by the order the appellants, as already stated, have filed this appeal. We have heard Mr. Khalil‑ur‑Rehman Advocate. Learned counsel for the appellants submitted that under the circum stances, the learned Single Judge ought not to have discharged the notice and should have taken action against the respondents for violating the adinterim order of status quo. It appears to us that in discharging the notice, learned Single Judge was influenced by the facts that Executive Engineer who had erected the fencing and removed the rubbish from the plot of land had not knowledge of the order of the status quo as his office was situated in Drigh Colony and that the fencing had already been removed. Learned Single Judge also noticed the claim of the counsel for the appellants that the appellants were in possession of the plot of land at the time of passing of the order and also of the counsel for the respondents that the plot of land was lying vacant and was encroached by the certain persons and that factually the appellants were not in possession and had left controversy to be resolved subsequently. In order to constitute punishable contempt the disobedience must be wilful. See Pitrus Lahara v. R. V. Dalal A I R 1953 Nag. 179 and Radhamohan Rana v. Govinda Gopalananda A I R 1951 Orissa

230. The mere unintentional disobedience to judgment, order or process of Court amounts to a contempt in theory only and does not render the respondent' liable to punishment. See State of Bihar v. Rani Sonabati Kumari A I R 1954 Pat 513 and N. Baksi v.

0. K. Ghosh A I R 1957 Pat.

528. Knowledge of the order of Court and the deliberate disregard of it are essential to constitute contempt. See Mushtaq Hussain v. Editor Daily "Dawn" English and others P L D 1964 (W.P) Kar.367, P. S. Tulja Ram Rao v. Sir James Taylor, Governor of Reserve Bank of India and others A I R 1939 Mad.257, Tarafatullah Mandal v. S. N. Mattra A I R 1952 Ca1.919, Ram Chandra v. Debi Dayal Dubey A I R 1955 All. 483, Thakur Bhawani Singh v. Sugan Charan I L R 1953 Raj. 85 and Narain Singh v. S. Hardayal Singh Harika A I R 1958 Punj.

180. In The State v. Muhammad Pinyal P L D 1967 Kar. 652, it was observed by A.S. Faruqui, J. at page 660 of the report as follows:‑ "The proceedings in contempt are in the nature of criminal proceedings and where the facts are disputed the Court has to be satisfied beyond any reasonable doubt that those facts have been established upon which finding of contempt can be based." In the present case, the learned Judge was influenced by the fact that the Executive Engineer had not knowledge of the order of status quo as his office was situated at Drigh Colony and by the further fact' that the respondents had made amends by removing the fencing and restoring the property in the position as it was before the passing of the order. In view of the principles stated above and the facts of the case, it could not be said that the learned Single Judge has acted improperly in discharging the notice. We may however, caution that an injunction granted) again a Municipal Corporation or a Corporation binds all its officers although they may not to be the parties to the suit in which order is passed. Any disobedience by them with the knowledge of the injunction would render them liable for contempt even if the order had not been served on them. We therefore, dismiss this appeal in limine.‑ M.Y.H. Appeal dismissed.