1988 PLP 230 (CLC)

5. During the pendency of the application under Order XXXIX, Rule 4, CPC. the Plaintiff moved an application under Order XXXIX, Rules 1 and 2 read with Section 151 C.P.C. praying thereon for restoration the possession of the plot in question to the plaintiff, as it had been illegally taken over by the Defendant at the time when the order of status quo passed by the Civil Court was in force. This application bears C.M.A. No. 4201/1987 and is dated 28‑9‑1987.

6. This order will dispose of both these applications. Admittedly the plaintiff was either put in possession by the defendant (as claimed by the Plaintiff) or he took over forcibly possession of the suit land, (as claimed by the Defendant) on 19‑2‑1983. Admittedly the premises were sealed by the learned Magistrate on 2‑3‑1983 and the Defendant was put in possession of the premises under order of the Magistrate on 16‑4‑1984.

7. Mr. Maroof Ali Khan learned counsel for the plaintiff has argued that the application under Order XXXIX, Rule 4, C.P.C. is not maintainable by the trial Court, as order of the trial Court being merged in the order of the Appellate Court and order of this Court in revision, this application should have been moved before the High Court in the revision application whereby the Defendant's revision was dismissed.

8. Admittedly by both these orders the order of injunction passed by the trial Court was confirmed by District Court and by High Court. If it is held that even in such case where the injunction application is either confirmed or is reversed in revision application by the High Court, application under Order XXXIX, Rules 4, C.P.C.. is to be filed before the High Court, it will be stretching too far the interpretation of the word 'Court' used in Rule

4. It may be pointed, that in certain cases the last Court either to affirm or reverse such order can be Supreme Court. The order under Order XXXIX, Rule 4, C.P.C. is appealable by virtue of Order 43, Rule 1 (R), C.P.C., but no appeal can lie against the order of Supreme Court. therefore, the contention that an application under Rule 4 of Order XXXIX, C . P. C . can be filed only before the last Court which affirmed or reversed the order of injunction, is not tenable.

9. The main contention of the learned counsel for the Defendant, Mr. Mohammad Sharif is that the plaintiff is no more in possession since 16‑4‑1984 and the Defendant is in possession since then and, therefore, the injunction issued by the Civil Court is no more workable under the changed circumstances.

10. It is contended by Mr. Maroof Ali Khan learned counsel for the Plaintiff that this order of the learned Magistrate, whereby the Plaintiff was dispossessed, is illegal and therefore, the possession be restored back to the Plaintiff instead of vacating injunction. He has relied upon the case of lmdad Khan and 7 others vs. Syed Mohammad Ilyas and 2 others (1971 S. C . M . R . 581) wherein their Lordships have held, "it appears to us that as the disputes between the parties were subject‑matter of civil suits and ad interim injunction and status quo orders have been passed against the respondents in these suits the criminal Court was not competent to interfere with the possession of the appellants in respect of the property in dispute. On the view taken by the Court in the above‑mentioned case, the order of the criminal Court was without jurisdiction. It was illegal and therefore, is liable to be set aside."

11. In the instant case, no doubt, the Magistrate has taken action under section 145, Cr.P.C. when the suit was pending in the Civil Court and status quo order had also been issued by the Civil Court. But the initial order of the learned Magistrate sealing the premises was challenged in the High Court in the revision application and by the absent order which has been reproduced above, the learned Magistrate was directed to decide the dispute. The learned Magistrate handed over possession to the Defendant after holding enquiry and no appeal has been filed against the said order, thereby allowing the order to attain finality. Mr. Maroof Ali Khan learned counsel for the Plaintiff concedes that he could not find any provisions of law under which the learned Magistrate could reverse his order. Section 145, Cr.P.C. itself does not provide any provision under which the Magistrate can review or reverse his order passed under subsection (6) of section 145.

12. Learned counsel for the Plaintiff has also relied upon 1980 SCMR 89 wherein their Lordships have held; "contravention of injunction orders can be interfered with in exercise of inherent jurisdiction and not under separate suit for the purpose. No party can be allowed to take advantage of his own wrong in spite of orders to contrary passed by the Court. Party violating injunction order not absolved of cognizance penalty even if suit or appeal is subsequently dismissed."

13. Mr. Mohammad Sharif learned counsel for the Defendant, however, submits that in the instant case, no contravention of the order of the Court has been committed by the defendant, but he has obtained the possession of the suit land through process of law viz. under the order of learned Magistrate under section 145, Cr.P.C. It is further contended that the Plaintiff had filed application for contempt of Court for the alleged breach of injunction bearing CMA. No. 1208/ 1986 which was disposed of by this Court on 27‑4‑1987. It was observed by the learned Single Judge in that order that the possession was handed over to the applicant Dr. Mohammad Safdar in pursuance of consent order passed by this Court. The learned Single Judge further observed that "since after passing of the order by the Civil Court much water had flowed under the bridge. After stay had been granted by the Civil Court, the matter went before the Summary Military Court and then before S.D.M., Bin Qasim and after finally reaching this Court it was disposed of by a consent order." He consequently rejected the application moved by the Plaintiff for the contempt of Court against the Defendant. It is further contended by Mr. Mohammad Sharif learned counsel for the defendant that this application moved by the plaintiff under section 151, C.P.C. is not maintainable as under Article 181 of the Limitation Act, it should have been moved within three years from the date, the plaintiff was dispossessed.

14. As already pointed, he was dispossessed on 2‑8‑1983 and possession was given to the defendant on 16‑4‑1984, but this application has been filed on 28‑9‑1978. For the above reasons, at this stage, I do not feel inclined to order restoration of possession.

15. Now the question before the Court is whether this Court can allow an injunction which is being violated for more than three years to remain in force specially when this Court has declined to restore possession of the, premises to the Plaintiff. I have already disagreed with the contentin of the learned counsel for the plaintiff that this application is not maintainable in the trial Court. Mr. Mohammad Sharif learned counsel for the defendant has relied upon A.I.R. 1929 Madras 803 where the question under consideration was as to under what circumstances Order XXXIX, Rule 4, C.P.C. is applicable. It was held by a Division Bench of the said Court as under:‑ "Order XXXIX, Rule 4, is intended to cover two classes of cases: (1) when an urgent order ex parte has been passed under R.3, R.4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside; and (2) when an injunction order already in force has, owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under R.4 to the Court to discharge, vary or set it aside. R.4 is not intended to set at naught the ordinary cursus curias that, once a Court has decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be re‑opened except on the presentation of some new matter not available when the original order was passed." This decision has been followed in cases reported in PLD 1977 Kar. 101 and PLD 1974 Note 54 at p.93

16. It is submitted by Mr. Maroof Ali Khan learned counsel for the plaintiff that in all these three cases, no appeal or revision was filed against the order of the trial Court granting injunction. However I have already considered this argument of Mr. Maroof Ali Khan and have not agreed with him that in case where appeal or revision is filed, the application under Order XXXIX, Rule 4, C.P.C. is not maintainable before the trial Court. Mr. Maroof Ali Khan has relied upon P.L.D. 1976 Kar. 865 wherein it is observed "from the above provision, it is clear that an order for injunction could be discharged or varied or set aside by the Court which passed it and not by the revisional or the appellate Court unless a revision or an appeal was preferred from such an order". Even in this case it is not held that in case an appeal or revision is preferred, such an application is not maintainable before the original Court. It will be advantageous to refer to the provisions of section 38, C.P.C. which provides that "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution." A decree passed by the Civil Court, even when appeal is preferred, is usually executed by the Civil Court, which originally passed the decree and not by the appellate Court.

17. Keeping all these facts in view in my opinion this Court as trial Court has got power under Order XXXIX, Rule 4, C.P.C. to amend or to discharge, vary or set aside order of injunction issued by it under the aforesaid changed circumstances and Rule 4 of Order XXXIX, C.P.C. is applicable in the present case. I, therefore, set aside the order of this Court under which injunction was issued. However, this order would not affect the rights of the parties in the suit which will be determined by final decision in the suit. The application was disposed of by a short order and the above are the reasons for that short order. M.Y.H./N‑294/K Application allowed.