Brief facts are that the petitioner filed a suit for permanent injunction against respondents/defendants seeking for a restraint order against illegal and forcible dispossession of the petitioner from the suit property. Alongwith the plaint, the petitioners filed an application for grant of temporary injunction. The learned trial Court issued the interim injunction to the effect that the petitioners be not dispossessed otherwise through due process of law.
2. The respondents entered appearance on 27.2.2002 and stated that the petitioners shall not be dispossessed illegally. However, the petitioner/ plaintiff who was licencee under the respondents, the latter reserved their right to proceed in accordance with law. In view of statement the suit of the petitioner was dismissed as having become infructuous:
3. The grievance of the petitioner as disclosed in his application filed under the Contempt of Court's Act 1976 is that on 4.3.2002 at about 11:00 a.m. the respondents in violation of the undertaking made before the Civil Court, forcibly dispossessed the petitioner and his family members from the suit shops. Other details of violatory behaviour was also given. It was prayed that in view of the, violation, proceedings for contempt be initiated against the alleged contemners and that a reference in terms of Section 5 of the Contempt of Court's Act, 1976 be submitted to this Court.
4. The respondents resisted the said application and denied the commission of any contempt as alleged.
5, The learned trial Court, from the divergent pleadings of the parties in the matter of contempt framed the following issues:- ISSUES
1. Whether the respondents have violated any order of the Court in any way and if so what is its effect? OPA
2. Relief.
6. The case was then posted for evidence of the petitioner.
7. Sardar Abdul Raziq Khan, Advocate for petitioner contends that as the suit had been disposed of, no application under Order XXXIX Rule 2(3) CPC was competent. It is also submitted that the respondents had violated their own undertaking and soon thereafter committed the Contempt of Court by illegally dispossessing the petitioner. It is submitted that as the alleged act amounted to Contempt of Court under Section 3 and Section 4 of the Contempt of Court's Act, 1976 and as no suit was pending before the learned trial Court, it was incumbent for the trial Court, to have laid the said information before the High Court under Section 5 ibid and in fact this was the prayer which was made in the application. The learned trial Court instead of acting upon the said provision of law proceeded to frame the issues and directed the parties to produce evidence thereupon. The learned counsel for the petitioner has placed reliance upon the case of Said Muhammad vs. Sultan Ahmed and 7 others 2000 CLC 387 to contend that in the cited case as the suit had been disposed of in the light of the undertaking given by the opposite party, the learned Civil Judge lacked the jurisdiction to try the contempt petition and was directed by this Court to make reference to the High Court under Section 5 of the Contempt of Court's Act, 1976.
8. On the other hand, it has been contended by the learned counsel appearing for the respondents that the trial Court had followed the correct procedure in first framing the issues to determine whether or not any contempt has been committed. It is submitted that question of reference of the matter to the High Court under Section 5 would arise only when the trial Court itself, before whom the application was filed prima-facie comes to the conclusion that some contempt has indeed been committed.
9. Arguments have been heard and record perused.
10.As the matter can be disposed of upon the legal proposition raised and on the basis of available record, this Criminal Miscellaneous is being disposed of as a regular case.
11.The basic features of the case are not disputed. The suit for permanent/injunction was filed by the petitioner and an interim order restraining the respondents from dispossessing the petitioner otherwise than in due process of law was issued on 20.2.2002. The respondents put in appearance through a counsel on 27.2.2002 and made a statement that they shall not dispossess the petitioner otherwise than in due course of law. It was nonetheless stated that the status of the petitioner was that of a licencee and that the respondents reserved their right to proceed against him in accordance with law. It was in view of this statement that the suit was dismissed as having become infructuous on 27.2.2002.
12.Admittedly, there was no suit pending after 27.2.2002 and a party which sought to claim the relief in respect of violation of undertaking given by respondents could have availed of the provision of Order 39(2)(3) CPC. There is also no cavil with the proposition that wilful breach of a valid undertaking given to a Court also amounts to Contempt of Court under Section 3 of the Contempt of Court's Act, 1976. What, however, is to be decided is the stage at which the reference to the High Court is to be made by the trial Court within the meaning of Section 5 of the Contempt of Courts Act. The learned trial Court in view of the claim of one party and its denial of the other that any wilful contempt has taken place, passed the following order on 26.2.2003: "After perusal of the record and hearing of arguments, I am of the opinion that this application (under Sections 3, 4 and 5 of Contempt of Court Act) -cannot be decided without recording of evidence. Hence the following issues are hereby framed."
13.After framing the necessary issues as herein before stated the parties were directed to produce the evidence. The jurisdiction which is contemplated in Section 5 of the Contempt of Courts Act, 1976 regarding this Court or the Hon'ble Supreme Court is to be exercised either on its own information or as laid before it by any person and it shall be thereafter that the concerned High Court may exercise the jurisdiction in respect of Contempt of Courts subordinate to it as it exercises in respect of contempt of itself.
14.Admittedly, no information has been directly brought to the notice of this Court in respect of the alleged contempt of the subordinate Court of the concerned Civil Judge Rawalpindi. The petitioner had filed the application under Sections 3, 4 and 5 of the Contempt of Court Act, 1976 before the trial Court and the trial Court in order to satisfy whether any contempt has indeed been committed, proceeded to frame the issues and record the evidence. It shall be after recording such evidence, if the trial Court comes to the conclusion that any prima-facie case of contempt is established that the question of making a reference to this Court shall arise. The learned trial Court appears to be conscious of this provision of law as is reflected from Issue No, 1 which has been framed by it. After coming to the conclusion if at-all, that the order of that Court has been violated, it has been further subjected to the legal course to be taken thereafter. A plane reading of Issue No, 1 would show that the petitioner has to establish if the respondents have violated any order of the Court in any way and it is only when this is established the trial Court shall determine its effect.
15.In my view the stage when the reference may be filed by the Court shall be after recording a positive finding in favour of the petitioner in respect of the alleged contempt.
16.The rule laid down in the case of Said Muhammad vs. Sultan Ahmed and 7 others 2000 CLC 387 proceeds on its own facts as in that case the trial Court had proceeded under the Provision of Order XXXIX, Rule 2(3) and had also convicted the respondents for committing the Contempt of Court although the suit stood disposed of. In the present case no Such situation has arisen as the learned trial Court shall not be dealing with an application under Order XXXIX, Rule 2(3). Admittedly, the petition filed before the trial Court was under Sections 3, 4 and 5 of the Contempt of Courts Act, 1976.
17.In view of the fore-going the impugned order and proceedings of the trial Court do not suffer from any illegality. The criminal miscellaneous is dismissed. The learned trial Court however is directed to invoke the provisions of Section 5 of the Contempt of Courts Act, 1976, if it comes to the conclusion upon Issue No, 1 that the respondents indeed violated any undertaking given by them before the said Court. Parties to bear their own costs.