2016 PLP 2269 (YLR)

YAHYA AFRIDI, J.

Through this single judgment, this Court proposes to dispose of two Appeals, as both the appeals have been filed against the judgment and order dated 15.12.2012, passed by the learned Additional District Judge-III, Nowshera. The particulars of the appeals are as under;

1. F.A.O. No.75-P/2012. Aamir Masood Khan, Ex-Executive Officer v. Ellahi Bakhsh and Zaheer-ud-Din).

2. R.F.A. No.18-P/2013. (Zaheer-ud-Din v. Ellahi Bakhsh and Aamir Masood Khan).

2. Some of the essential facts, which require attention in deciding these appeals, are that Zaheeruddin, (the appellant of RFA No.18-P/2013), filed a suit against Elahi Bakhsh (present respondent No.1), seeking, inter alia, possession of House Nos.151, 152, 153, 198, 199 and 200 at R.A. Bazar, Nowshera Cantt. ("the disputed houses") ("Suit No.1"). The trial Court finally passed a decree dated 14.2.2010, in favour of Zaheeruddin and against Elahi Bakhsh. Feeling aggrieved, Elahi Bakhsh impugned the same in appeal. Armed with a decree, Zaheeruddin, the then decree holder, on 23.8.2010, moved SNGP and PESCO for disconnection of sui gas and electricity connections to the disputed houses, respectively, and also the Cantonment Board, Nowshera, for demolition of the disputed houses for construction thereon, as per new approved plans.

3. This move by Zaheeruddin led to, inter alia, notice for demolition of the disputed property being served upon Elahi Bakhsh by the Cantonment Board, Nowshera, which in turn prompted Elahi Bakhsh to file a suit against the Cantonment Board, Nowshera, seeking, inter alia, declaration of the notices issued under section 185 of the Cantonment Board Act, 1924, ("Act") to be illegal and also injunctive relief against the demolition of the disputed houses ("Suit No.II").

4. What is crucial to note that suit No.II, filed on 28.10.2010, by Elahi Bakhsh against the Cantonment Board, challenging the demolition notice served under section 185 of the Act, was dismissed by the worthy trial Court, declaring the same to be not maintainable, vide decision dated 18.12.2010. Feeling aggrieved, Elahi Bakhsh impugned the same in appeal on 20.12.2010, before the District Judge, Nowshera. The said appeal was admitted and notices were issued to the Cantonment Board, but there was no interim injunction granted in favour of Elahi Bakhsh, or restraining the Cantonment Board in proceeding with the notices issued for demolition of the disputed houses.

5. Ellahi Bakhsh being aggrieved of the decision of the trial Court in Suit No.1 challenged the same in appeal, wherein the appellate Court, on 4.10.2010, passed a status quo order in favour of Elahi Bakhsh, the then appellant, in the said appeal. It is also in evidence that the said order was communicated to the Cantonment Board, Nowshera, with a covering letter of Elahi Bakhsh on the same day, vide Ex.PW3/R-2 and Ex. PW 5/4. Finally, the appeal of Elahi Bakhsh was accepted vide decision dated 22.10.2011.

6. It was in this background, that the impugned demolition of the disputed property took place on 30.12.2010, against which Elahi Bakhsh had filed petition for initiating contempt of Court proceedings against Aamir Masood, the then Executive Officer, Cantonment Board, Nowshera and Zaheeruddin, who on being summoned, contested the petition by submitting their respective replies and the divergent contentions of the parties were reduced into the following issues:-

1. Whether petitioner has got a cause of action?

2. Whether petitioner has got locus standi to file the petition?

3. Whether the petition is based on mala fide and liable to be dismissed?

4. Whether the petition is based on mala fide and liable to be dismissed?

5. Whether this Court had issued status quo in appeal titled "Elahi Bakhsh v. Aamir Masood etc." and respondents were in knowledge thereof?

6. Whether respondents violated the status quo order and demolished illegally the houses of petitioner comprising Nos.151, 152, 198 and 199 situated at R.A. Bazar, Nowshera Cantt., and illegally disconnected the electricity, water and gas connections and also dismantled the gas meter thereof?

7. Whether respondents have committed contempt of Court?

8. Relief.

7. After hearing the learned counsel for the parties and going through the evidence, the learned Additional District Judge-III, Nowshera, while accepting the petition for initiating contempt of Court proceedings, passed the following order:- "Resultantly, the instant petition stands accepted and the respondents be proceeded under Contempt of Court proceedings in accordance with law. Separate file be opened and respondents are directed to appear before the Court on 10.01.2013 with further direction to submit bail bonds to the tune of Rs.100,000/- each, with two sureties each to the satisfaction of this Court on or before the date fixed. Record be returned to the quarter concerned along with copy of this judgment, while file of this Court be consigned to the Record Room after its necessary completion and compilation." Hence, the present appeals.

8. The worthy counsel for appellant Aamir Masood, argued that no contempt of Court was committed, as no status quo was ordered by the appellate Court in Suit No.II against the Cantonment Board, Nowshera and that the status quo ordered by the appellate Court, was in a different proceedings, in which Cantonment Board, Nowshera was not a party. Reliance was placed on Abubakar's case (1984 CLC 2110), Abdul Majid's case (1988 CLC 1370) and Gaman's case (PLD 1995 Supreme Court 572).

9. The worthy counsel for Zaheeruddin contended that he had applied to the Cantonment Board on being armed with the decree against Elahi Bakhsh granted by a competent Court of law and that the applications to PESCO, SNGPL and Cantonment Board, Nowshera, were made before any injunction order was passed by the appellate Court and thus his actions could not constitute contempt of Court.

10. The respondent Elahi Bakhsh appeared in person and insisted on pleading his claim himself despite being offered pro bono legal assistance. He vehemently rebutted the contentions of the worthy counsel for appellants and contended that contempt of Court can be committed a person, even if he is not a party to the lis, and relied upon Dr. A.N.M. Mahmood's case (PLD 1967 Dacca 67), Emirates Bank International Limited's case (1993 CLC 489), Naveed Nawazish Malik's case (1997 SCMR 193), Muhammad Mukhtar's case (2006 YLR 2758) and Baz Muhammad Kakar's case (PLD 2012 Supreme Court 923).

11. Let us first start with the appeal of Zaheeruddin. The finding recorded against him are that he along with Aamir Masood, the then Cantonment Executive Officer, in violation of the status quo orders passed by the Appellate Court on 4.10.2010, demolished the disputed houses of the respondent Elahi Bakhsh and disconnected the Sui gas and electricity supply thereto.

12. The evidence on record is very clear that Zaheeruddin vide application dated 23.08.2010 moved the Cantonment Board, Nowshera, for demolition of the disputed houses. What is crucial to note is that this application was moved by Zaheeruddin after a valid decree was passed in his favour by a competent Court of law and at that particular stage no status quo had been passed by the Appellate Court.

13. Similarly, SNGPL and PESCO were also moved before any injunction order of the Appellate Court. This being the position, the role of Zaheeruddin is only to the extent of filing applications and that too when he had in his favour a decree passed by a competent Court. What emanated thereafter, were the administrative consequences, which were taken by the Cantonment Board, Nowshera, PESCO and SNGPL, for which Zaheeruddin cannot be held responsible. Accordingly, this Court is of the view that no contempt of Court was committed by Zaheeruddin by filing the application, which led to the demolition of the disputed houses.

14. Now, this Court will move on to the appeal of Aamir Masood, the then Executive Officer of Cantonment Board, Nowshera. This Court is not in consonance with the submissions of the worthy counsel for the appellant Aamir Masood that he, not being a party to the suit No.I, which led to the status quo order by the Appellate Court on 4.10.2010, would therefore, not be bound by the said injunction order. Order of the competent Court, interim or final, when communicated to any person, how high so ever, in the rung of Governmental position, is legally bound to abide by it, and in case of any disobedience on his part, would surely expose him to penal consequences including contempt of Court, as provided under Sub-Rule-3 of Rule-2 of Order XXXIX of Civil Procedure Code, 1908, which provides; "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 prison for a term not exceeding six months, unless in the meantime the Court directs his release."

15. The bare reading of the aforestated rule provides the word person, and not a party. This being the position, the intent of the said rule is clear. Had the said rule expressly restricted to a party, then the stance taken by the worthy counsel for the appellant would have been legally palatable.

16. Now, when we review the evidence, it is noted that the status quo order passed by the Appellate Court on 4.10.2010 was duly submitted to the Cantonment Board, Nowshera, on the same day with the covering letter of Elahi Bakhsh vide Exh.PW 3/R-2 and Exh.PW 5/4, respectively.

17. What is to be adjudged is whether the order passed by the Appellate Court dated 4.10.2010 admittedly submitted in the Cantonment Board, Nowshera, would constitute knowledge of Aamir Masood, the then Cantonment Executive Officer of the said Board, and thus his action of proceeding with the demolition of the disputed houses would constitute a contempt of Court or otherwise.

18. Before this Court proceeds further in the matter, it would be appropriate to review the orders passed by the Appellate Court on 4.10.2010 which read that; "Appellant submitted application for status quo, which is placed on file. Status quo be maintained till the date fixed." Passing of such orders by Courts of competent jurisdiction have not been taken well by the Apex Court in Gaman's case (PLD 1995 SC 572), wherein in similar circumstances, the Apex Court struck down the claim for initiating contempt of Court proceedings against the Revenue Officer, who according to the complaint had violated the status quo order of a Civil Court. While doing so, the Apex Court also rendered guidelines to the Courts in terms that; "So for the guidance of the subordinate Courts, it is hereby laid down; "(i) Before issuing stay/injunction orders, Courts must carefully examine and consider the documents relied upon by the parties in proof of title, possession etc, of the property in dispute. In case of doubt, the Court may appoint Commission for verification of actual position at site. A little care on the part of the Civil Courts would save citizens from untold hardships and also help maintaining public peace and tranquility. (ii) Status quo orders should not be passed in vague and general terms. It should clearly state as to what extent does it operate. Whether it prohibits interference in one's possession or alienation of property by a party, raising of construction on the property, or change in the status and character of the property pending, decision of case. The stay/injunction must be unequivocal and clear leaving no room for any ambiguity thereby providing an excuse for its misuse by parties. (iii) Government officials in contempt proceedings initiated at the instance of litigants under Order XXXIX, Rule 2(3), C.P.C. should not be summoned if they were not arrayed as party in the suit or against whom no stay/injunction was issued. The summoning of Government officials in Courts creates problems for the Department concerned, not only the official work suffers but also the Government Officials are unnecessarily dragged in the Courts. Needless to say that these guidelines are binding on all the Courts under Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973, and serious view of violation thereof shall be taken."

19. Keeping in view the ratio decidendi of the aforementioned judgment of the Apex Court and the guidance rendered therein, it is but clear that the order passed by the Appellate Court dated 4.10.2010 did not qualify the test for requiring the government official to restrain from proceeding in a particular matter.

20. Even otherwise, what is important to note is that suit No.II, which precisely related to the demolition of the disputed houses, was dismissed by the trial Court and in the appeal filed by Elahi Bakhsh, the Appellate Court did not consider it appropriate to pass any restraining order directing the Cantonment Board, Nowshera, not to proceed in the matter of demolition of the disputed houses.

21. A case of contempt could have been made out against Aamir Masood, the then Cantonment Executive Officer, Nowshera, had Elahi Bakhsh not filed suit No.II, specifically against the demolition of the disputed houses. When there was a specific case against the Cantonment Board for not carrying out the demolition of the disputed houses and the same had been dismissed by the trial Court, and there being no restraining order by the Appellate Court, the actions taken by the Cantonment Board, even if stretched of its limits be can come within the scope of contempt of Court of the order dated 4.10.2010 passed by the Appellate Court in appeal, emanating from Suit No.I, wherein Cantonment Board, Nowshera, was not a party.

22. Before parting with this judgment, it would be important to note that no prescribed procedure provided in C.P.C. for proceeding with the contempt proceedings under Sub-Rule-3 of Rule-2 of Order XXXIX. However, what is important that, due care and caution has to be taken by the said Court in adopting the procedure, so that no prejudice is caused to the parties. In this regard, the decision of the Sindh High Court in Muhammad Khalid's case (2004 YLR 2050) is very illustrative, wherein in regard to the procedure to be adopted, it was observed that; "Under Order XXXIX, C.P.C. Courts regulate the conduct of the parties during pendency of the proceedings may also order interim sale, detention, preservation or inspection of subject matter of the suit, direct deposit of money. On application, Court may discharge, vary or set aside the Injunctive Order. In case of disobedience or of breach of any term of injunctive Order Court may also attach property of the person guilty of such disobedience and may also detain such person for a term not exceeding six months. Thus the Order XXXIX, C.P.C. is a complete code, regulating grant, discharge, enforcement as well as penal consequences for the disobedience. In presence of such specific provision, ordinarily provision of Contempt of Court Act, 1976, or for that matter Article 204 of the Constitution, 1973 should not be invoked. (See case of M.O. Ghani PLD 1966 SC 802 at page 811, followed in Emirates Bank Ltd. 1993 CLC 489 at page 499) Code of Civil Procedure, does not lay down any precise procedure for the trial of the persons guilty for the disobedience of the injunctive order passed by the Civil Courts in terms of Order XXXIX, Rules 1 and 2, C.P.C. Looking at the gravity and nature of the disobedience, Court may evolve its own procedure, such procedure, however, must commensurate with minimum standard of principle of natural justice. Since the injunctive order is visited by penal consequences of attachment as well as detention, alleged Contemner must at least be given a notice to answer the charges of disobedience and as far as possible, as observed above, minimum standard of principle of natural justice are to be adhered. By adherence to minimum standard of principle of natural justice, it does not necessarily mean that, Court should inevitably embark on full fledged trial with elaborate enquiry and record detail evidence. In some case, matter could be decided on affidavit, counter-affidavits, and rejoinder and admitted material, if any brought on record. In some cases, site inspection and commissioner's report may be conductive, and in appropriate cases, even evidence may also be recorded. No universal formula could be prescribed. The Court may adopt and follow such procedure in it discretion as the circumstances of each case demand." In the instant case, it is noted that the Court did proceed with the contempt proceedings adhering to the principle of natural justice. However, the appreciation of the evidence, as stated hereinabove, was not in accord with the laid down principles of safe administration of dispensation of justice, hence the decision therein has been set aside. Accordingly, for the reasons stated hereinabove, both the appeals are accepted and the impugned decisions of the Appellate Court, being devoid of any force, are set aside. ZC/235/P Appeal allowed.