1998 PLP 692 (MLD)

TARIQ PERVEZ, J.

This order will dispose of Criminal Miscellaneous No. 312 of 1992 whereby the petitioner has prayed for initiating contempt of Court proceedings against the respondents for violation of this Court judgment in First Appeal from Order No. 6 of 1990 captioned as Haji Mir Alam Khan Khalil v. Commissioner, Peshawar Division, Peshawar which was confirmed by Supreme Court. Although ostensibly this application is for contempt proceedings for awarding punishment to the respondents under Contempt of Court Act but from the tenor and contents of the application and the arguments addressed at the Bar it in fact transpired that the petitioner is interested to direct the respondents to give effect to the judgment of this Court in case of the petitioner se as to enhance the rate of lease regarding his share in the leased out land.

2. The facts relevant for the disposal of this application have been richly incorporated in the judgment of this Court delivered on 18-11-1990 and of the Supreme Court of Pakistan dated 4-5-1991. However, certain facts materially relevant for the disposal of this application are, that, an area measuring 5161 acres situated in Mouza Shahi, Regi Lalma and Sufaid Sang was leased out to the Federal Government, Ministry of Defence for the use of Air Force on 13-9-1944 which lease was renewed from time to time. Ultimately the Federal Government intended to acquire the land on the basis of permanent lease, as such, litigation started between the lessee and the lessor over the lease amount. The matter was referred for arbitration and finally it culminated in an award given by the Commissioner, Peshawar Division, Peshawar vide order dated 15-3-1990 wherein the rate of land per Jarib was fixed at Rs. 200.

3. The said award was challenged by way of appeal before Peshawar High Court, Peshawar by some of the landowners. It is pertinent to note here that the total land given in the preceding paragraph was owned by different landowners and during the arbitration proceedings the representatives of the landowner were appearing before the concerned quarters. The High Court while accepting the appeal of the landowners enhanced the lease amount from Rs. 200 to Rs. 246 per Jarib per annum.

4. The order of the High Court was challenged by the-Federal Government as well as by the landowners before the august Supreme Court of Pakistan where both the appeals, that of the Federal Government and the landowners were dismissed vide judgment dated 4-5-1991 and judgment of the High Court was maintained. No change was brought in lease amount as determined by the High Court.

5. The dispute between the applicant arose when the respondents started disbursement of the lease amount at the rate as fixed by the High' Court of Peshawar only amongst the landowners, who had filed appeal in the High Court and subsequently before the Supreme Court of Pakistan and refused payment at the enhanced rate to the petitioner.

6. We heard the learned counsel for the petitioner and learned counsel appearing for respondents. It was argued by the petitioner's counsel that the respondents have committed contempt of this Court and of the Supreme Court of Pakistan by withholding the payment at enhanced rate of lease money to the applicant who is a landowner of the leased land because in his view notwithstanding the fact whether or not the applicant was a party in appeal he was entitled to the same relief which was extended to the appellants by the High Court. The learned counsel for the petitioner relied on a judgment recorded in Sultan Muhammad Salahuddin Khan and another v. Land Acquisition Collector (PLD 1988 Peshawar 71) wherein it was held that:-- "Landowners not being satisfied of award filed objections against such award

District Judge on reference, enhanced value of land

One land owner filed appeal before High Court against assessment of District Judge while others did not

High Court further increased value of acquired land

Landowner who had not filed appeal against finding of District Judge whether could get advantage out of the decree passed in favour of landlord who had filed appeal

Findings of High Court showed that instead of word 'appellant', word 'objectors' had been used and matter for consideration was not just that land owned by appellant objector but related to whole area acquired by Government including that belonging to objector who had not filed appeal against finding of District Judge

Appellate Court had power to pass any decree and make any order which ought to have been passed or to pass such further order or decree as the case required

Such power could be exercised by Court notwithstanding that appeal was as to part only of the decree, and same could be exercised in favour of all or any of the parties although such parties had not filed any appeal or objection

Decree of District Judge would be deemed to have been modified in respect of all the objectors

Person not filing appeal against finding of District Judge being one of the objectors could take benefit out of decree passed in favour of other landowner. "

7. On the other hand, the learned counsel for the respondents have taken up the stand that the applicant being not a party in appeal is not entitled to any relief qua enhanced rate of lease money and secondly, if at all he has any claim he should move the executing court/agency instead of coming to this Court.

8. We are mindful of the fact that the non-redress of the grievance of the petitioner by the respondents does not fall within the mischief of Contempt of Court Act as the petitioner was not a party in appeal, moreso the respondents are implementing the judgment of this Court and the Supreme Court of Pakistan / under the assumption that only the landowners who have appealed are entitled to the enhanced rate.

9. We understand that the petitioner can claim the enhanced rate notwithstanding the fact that he is not party to the appeal on the ground that he is a landowner in the said land which was initially pursued by the representatives of the landowners before the arbitrator, a reference is made to paras. 5 and 6 of the judgment of the High Court dated 18-11-1990.

10. Order 41, rule 33 empowers the Court of appeal to extend relief to a person who is not party to the proceedings in order to do justice, equity and application of good conscience. The order referred to above and the rule appear to be an exception to the general rule and the purpose of insertion of an exception to the general rule is with a view to do complete justice and the citizens should not be deprived of their due rights on the ground of technicalities as in the instant case.

11. In view of the above legal position we direct the respondents to pay the petitioner the lease amount as determined by the High Court, at enhanced rate alongwith interest permissible under the law, in respect of his share in the disputed land. However we dismiss the application regarding initiating contempt of Court proceedings against the respondents as we find have not intentionally disobeyed the order of this Court. H.B.T./2160/P Order accordingly.