Facts collected from record and narrated by both the learned counsel for the parties, forming the background of this civil revision are the one Noor Muhammad, respondent of the instant revision, had filed a suit for grant of permanent injunction against the Province of Punjab through District Collector (defendant No.1) and the present petitioner, namely, Muhammad Zafar Iqbal (defendant No.2), in the Court of learned Senior Civil Judge, Vehari on 8-4-1989 seeking an injunctive order of permanent nature, restraining the defendants from interfering into possession of the plaintiff upon the lands in dispute, measuring 96 Kanals and situated in Chak No.88/W.B., Tehsil Mailsi, District Vehari. Learned counsel for defendant No.2, undertook by getting recorded his statement that plaintiff would not be ejected from the lands in dispute without due course of law. This statement was recorded on 16-5-1989. But on the same day, Noor Muhammad was got apprehended in criminal proceedings under sections 107/151 of the Cr.P.C. And ejected forcibly from the lands in dispute. This high-handedness forced the plaintiffs to file an application before the learned Senior Civil Judge through which initiation of proceedings under contempt and for restoration of possession of the plaintiffs as was existing at the site before 16-5-1989 was prayed. This application was contested by the present petitioner, as he filed reply to it and got the issues framed from the learned Senior Civil Judge. The parties were granted opportunity to produce their evidence which they did produce it. After the evidence was brought on the record, the learned Senior Civil Judge accepted the application after evaluating and appraisal of the evidence of the parties. The judgment/order, in which present petitioner was sentenced to undergo six months simple imprisonment with fine of Rs.5,000 or in default of payment of fine to suffer further S.I. Of one month, was announced on 10-12-1991. He was also directed to hand over the possession to the plaintiff with payment of Rs.2,00,000 as compensation to Noor Muhammad, plaintiff. This order dated 10-12-1991 was challenged before the learned Additional District Judge by the revision petitioner in the appellate jurisdiction, who accepted the appeal on 20-2-1993 and remanded the case to learned Senior Civil Judge by holding and deciding issue No.1-D and 1-E with regard to maintainability and jurisdiction of the Court against Noor Muhammad and in favour of defendant/appellant. This order was assailed by Noor Muhammad in C.R. No.197 of 1993 in this Court, which was decided on 22-3- 2000 by my learned brother Mr. Justice Jawwad S. Khawaja. The order dated 22-3-2000 was further tried to be upset by revision petitioner through Review Petition No.115 of 2000, which too was dismissed on 15-5-2000. No further appeal/revision or any other step to get it reversed in the Hon'ble Supreme Court of Pakistan were taken by the present petitioner against that judgment/order dated 22-3-2000 passed in C.R. No.197 of 1993, or against the order dated 15-5- 2003 pronounced in Review Petition No.115 of 2000. Thus the above-referred orders attained finality.
My learned brother Mr. Justice Jawwad S. Khawaja remanded the case to District Court for rendering the decision on merits upon other issues because the learned brother Judge had found the petition for contempt as well as suit maintainable and jurisdiction very well available, and vesting with the lower Court. The matter was once again taken up by the learned District Judge, who maintained the sentence, the imposition of fine, the payment of compensation and the direction for return of possession on 13-12-2000. Aggrieved from that judgment/order, the present civil revision has been filed by Zafar Iqbal, the convict/contemner/contenderor.
2. Learned counsel appearing on behalf of petitioner submits that the suit as framed for grant of permanent injunction was not maintainable in the Civil Court, therefore, undertaking given, was void and its violation could not be mulcted with fine and punishment, and it was, therefore, not sustainable in the eye of law as it was without jurisdiction. He has referred to section 77 of the Punjab Tenancy Act, 1887. In this regard, he has referred to 1981 SCMR 46 (Ghulam Nabi and others v. Bahsir Ahmad and others) to support his contention. He has further argued that the Court which had no jurisdiction to entertain the suit, the order passed in such a suit was illegal and without lawful authority, and its violation cannot be visited with any imposition of sentence, and penalty of fine, compensation or restoration of possession. He has referred for this purpose a citation reported in PLD 1997 SC 351 (Province of Punjab v. Dr. S. Muhammad Zafar Bukhari). It has also been submitted by the learned counsel that the learned Court has wrongly ordered the attachment of whole of the property of the petitioner. This order is also liable to be set aside. It has also been agitated by the learned counsel that the injunction granted during the pendency of the suit, if violated can be proceeded with under Order XXXIX, rule 2(3) of the C.P.C., by the learned trial Court below, otherwise proceedings at the most could be initiated under Contempt of Court Act, which was in force.
3. On the other hand, the learned counsel for the respondents submits that the petitioner has not only suppressed the real facts but has reiterated the same arguments and points, which were canvassed by petitioner and decided in C.R. No.197 of 1993 on 22-3-2000 and in Review Petition No.115 of 2000 on 15-5-2000. The civil revision is accordingly not competent and is liable to be dismissed on this ground only. Learned counsel has stated that the order passed upon an undertaking given before a Court is like a stay order/injunction passed during the proceedings of a suit, and its violation can be taken note of and proceeded against under Order XXXIX, rule 2 (3) of the C.P.C. He has referred to PLD 1982 Lahore 459 (Muhammad Ashiq alias Ashiq Ali v. Razia Begum and others). He has also agitated that the provisions of sections 3/4 of the Contempt of Court Act are also attracted to the case in hand which would be in addition and not in derogation of the proceedings for violation of injunctive order.
4. The arguments of both the learned counsel and the scanning of the record has brought to light the facts that the complete case upon which the learned counsel for the petitioner has weaven the web is shattered and is torn into pieces when the plaint filed by Noor Muhammad, plaintiff/respondent is carefully and minutely perused and examined. In Para No.1 of the plaint, (Exh.A-3) he asserts that ownership of the disputed lands vesting with the Provincial Government and claims tenancy of the Government. Nowhere in the plaint, he has admitted himself the tenant of petitioner/defendant No.2 or defendant No.2 to be his landlord or owner of the disputed lands. He has denied categorically any right of petitioner (defendant No.2) with regard to the land. There was no question of landlord and tenancy raised between plaintiff and defendant No.2 in that suit.
Therefore, the assertion and version as envisioned by petitioner that suit was not maintainable in the Civil Court due to exclusive jurisdiction vesting with the Revenue Court, being trumpeted by him by referring to section 77 of the Punjab Tenancy Act, 1887 loses its significance and proves to be a fallacious argument. As relationship of landlord/owner. And tenant between the plaintiff and defendant No.2 was not entered into the contents of the plaint, therefore, the Civil Court had got the jurisdiction. The law is also settled on this point that at the initial stage, the facts as narrated in the plaint are the determinative factors for commencement of proceedings upon a suit instituted.
These serve the foundational basis to decide the question of jurisdiction of a Court. Upon these averments, the Court has to take initiative and decide as to whether it has to proceed or to reject the plaint under Order VII, rule 11, C.P.C. The other party when enters into Court by its appearance in the suit has been granted right to raise the objection with regard to jurisdiction of the Court and to proceed with the suit by filing a written statement and if it be in connection with the place of suing under section 21 of the C.P.C. But the petitioner instead of putting resistance to the suit on this jurisdictional ground gave the undertaking that he would not dispossess the plaintiff without due course Of law. In these circumstances, he had in fact admitted the jurisdiction of Civil Court. It is noteworthy to note that question of tenancy and objection to jurisdiction of Civil Court has been conceived by defendant No.2 (present petitioner) in reply to application of contempt and to the proceedings to it.
5. The learned counsel for the respondent has rightly pointed out that the objection to jurisdiction and the question of maintainability which were shaped into Issues No.l-D and 1-E were decided by this Court in C.R. No.197 of 1993 on 22-3-2000. In Para No.4 of the judgment delivered by my leaned brother Mr. Justice Jawwad S. Khawaja, he had set aside the finding of learned Additional District Judge upon those issues which were passed in favour of petitioner vide the following para:-- "In the foregoing circumstances, this revision petition is allowed and, as a consequence, the decision of the learned Additional District Judge, Vehari, on Issue No.1-D and 1-E (which are the only issues decided by him) is set aside. The case is remanded to the learned District Judge, Vehari, for decision afresh on the remaining issues.
' The petitioner, present in Court, is directed to appear before the leaned District Judge, Vehari, on 10-4-2000".
6. Issues Nos.1-D and 1-E are reproduced for immediate examination: ' ISSUE NO.1-D: ' Whether this Court has no jurisdiction to pass the order dated 16-5-1989 or to record the statement of the respondent? (under objections of petitioners counsel).
' ISSUE NO.1-E: ' Whether this Court has no jurisdiction to try this petition?
7. Accordingly, these issues which were comprehensive, and covering all the objections, now being raised, were decided in favour of Noor Muhammad, respondent in the earlier C.R. No.197 of 1993 on 22-3-2000 as noted above. Review Petition filed to get it set aside was also dismissed on 15-5- 2000. Thus, this order had attained finality, as no party to the proceedings had approached the Hon'ble Supreme Court. Due to non-filing of further proceeding in the apex Court, present petitioner had admitted by his own act and conduct, the order to be legal and valid one. It may be noted here that a party cannot be allowed to approbate and reprobate because the order, which had attained the finality now cannot be assailed in the same litigation again. The decision in the above-mentioned civil revision and in review has in fact closed the chapter of maintainability and jurisdiction questions to be raised anymore, at least in this Court as well as in the lower Court.
8. The learned counsel has also rightly referred to PLD 1982 Lahore 459 (Muhammad Ashiq alias Ashiq Ali v. Razia Begum and others) by maintaining that the undertaking given to Court, is like an injunction issued during the proceedings of a suit and the party cannot be allowed to flout that injunction order/undertaking. In my view an undertaking is an earnest plight to a Court, which when made, the other party is relieved and the responsibility of the Court is brought into action. The Court by this act is given a word by the party who has asked to believe the statement to be a sincere promise. The Court by this action is drifted to another discretion. The atmosphere of trust is created between the Court and the promisee. The other party has also been offered to believe the statement, to be true promise made by a party in a judicial proceedings. That person, if afterwards violates on the pretext of the Court having no jurisdiction. It would be playing a fraud with the Court and ridiculing the authority of the Court. It is an act by which breach of trust is committed by the promisee. Therefore, it has been considered in judicial system and parlance, an act of gravest kind of breach of injunction as well as of the commission of contempt. The violator cannot be permitted to take defence on the plea of maintainability of the suit or the petition being incompetent under Order XXXIX, rule 2(3) or it would be only capable of being filed under the Contempt of Court Act.
Avoidance cannot be allowed on these hyper-technical objections. The Court before whom the undertaking/ statement was given would be well advised and within its competence to punish the violator/ridiculer of its authority under Order XXXIX rule 2(3) of the C.P.C. Because the undertaking to the Court, if accepted by the Court, would take the force and be considered an injunctive order passed during the course of proceedings. In the Full Bench decision reported in PLD 1976 Lahore 580 (Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others), this High Court has authoritatively decided that undertaking given to Court by a party or his counsel is like an order of injunction granted by the Court. In 1980 SCMR 89 (Bakhtawar and others v. Amin and others), the Hon'ble Supreme Court of Pakistan has clearly held that contravention of injunction order can be interfered with in exercise of inherent jurisdiction. It has also been ruled that no party can be allowed to take advantage of his own wrong. In 1968 SCMR 557 (Muhammad Salim Khan Yusufzai v.
K. Muhammad Din), it was held that in violation of undertaking, imposition of sentence to party for six weeks to serve it out in civil Jail under Order XXXIX, rule 2(3) of the C.P.C. Was valid.
9. Therefore, I do not see any merit in this civil revision, which is dismissed, by maintaining the order for delivery of possession and the grant of compensation as ordered/directed by the learned Appellate Court below.