NASIR-UL-MULK, J. --- The petitioner, Hakim Ali, has filed this petition for initiating proceedings against nine respondents for committing contempt of Court alleging that they in violation of the judgment and order bf this Court dated 25.2.2008 had illegally dispossessed the petitioner from Shop No. 13 situated at Shahra-e-Liaquat, 'Karachi. After hearing the petitioner this Court by order dated 17.8.2009 issued show-cause notice to the respondents which also gives some account of the petitioner's case:- "We have heard the petitioner and learned counsel appearing for the respondents No. 1 to 3 and 5 and have gone through the relevant record. According to judgment of this Court dated 25.2.2008, the respondents were to seek ejectment of the subject-matter 'of the shops No 1 and 4. Facing towards Altaf Hussain Road, the specific details of that property find mention in the report dated 16.3.1989 submitted .By Official Assignee in pursuance of order of the High Court of Sindh, Karachi in Suit No. 403 of 1997 It may be noted that in pursuance of order dated 2nd March, 1999, passed by High Court of Sindh, the Official Assignee had engaged Muhammad Iqbal Engineer for his assistance the matter being of technical nature and the Engineer had filed his report on 15.3.1999 which was relied by the Official Assignee in his afore-referred report. Learned counsel for the respondents has referred this document in his arguments.
(2) Case of the petitioner is that possession of his shop bearing No. 13 has also been taken over in the garb of the same was subject-matter of the proceedings before this Court as well; whereas according to him, respondents were entitled to the possession of the shops No. 1 and 4 only. Prima facie, we are of the opinion that for above reasons, the respondents. Named above alongwith official respondents, who are not in attendance, are required to be proceeded against for violating the order of this Court. Therefore, show-cause notice be issued to them to explain as to why-they should not be punished for the Contempt of Court.'
(3) It is informed that the construction is being carried out on the portion of shop No. 13 as well.
Respondents are, therefore, directed not to raise any further construction pending decision of this petition. The Nazir of the High Court of Sindh is directed to inspect the disputed property, prepare sketch of the same with the assistance of any Revenue Officer/City Surveyor of the City Government of Karachi and submit his report in respect of the compliance of this Order. At this stage, learned counsel for respondents No. 1, 3 and 5 requests that Nazir may be directed to appoint at the cost of the respondents a Chowkidar who will ensure that no further construction on the area covered by shop No 13 is carried out in order to avoid any complication in this behalf.
Order accordingly. The case is adjourned to a date in office during the 3rd week of September, 2009 "
Four of the respondents, Muhammad Hanif, Muhammad Farooq, Saqib All and Muhammad Rafique filed their concise statement 'and after going through the same as well as report of the local commissioner this Court decided to frame charge and accordingly on 15.4.2010 the above said four respondents were charged as follows:--- "that you have wilfully disobeyed/disregarded the order/direction and process of the Courts, especially of this Court in Civil Petitions No. 445-K to 447K/2006, by dispossessing Noorani Travellers from Shop No. 13, which is claimed to be a separate and distinct premises from tenement bearing No. Office and godown No. 1 and Office No. 4 on plot S.R. 6/3 and 4, Shahrah-e-Liaquat/Frere Road, Karachi, and for which (property other than Shop No. 13) an ejectment order has been passed with intent to divert the course of justice and committed Contempt of Court under Section 3, punishable under Section 5 and other relevant provisions of the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 and Supreme Court Rules, 1980.
And we call upon you to explain as to why you should not be tried and punished for the above offences.
AND WHEREAS, the afore-mentioned offences are within the cognizance of this Court and it is hereby directed that you all be tried by this Court.
Certified that the above charge has been read over and explained to the accused persons."
2. The respondents/contemnors pleaded not guilty. After framing the charge the Court directed the Sessions Judge, Karachi (South) to record evidence of the parties and to place the same before this Court for further proceedings. Accordingly the petitioner as well as the respondents/contemnors had their respective evidence recorded. As ordered the Sessions Judge was duly assisted by the Mrs. Akhter Rehana, Additional Prosecutor-General in recording of evidence.
3. The petitioner appeared in person had filed a number of civil miscellaneous applications, most of the said applications contained written arguments of the petitioner. In one such application (C.M.A.
No. 328 of 2011) the petitioner had objected to the appearance of Mr. Rashid A. Rizvi, Senior Advocate Supreme Court, on behalf of respondent No. 1, on the ground that he at one stage had passed two orders dated 19.12.1997 and 24.12.1997 as Judge of the High Court of Sindh in Suit No. 403 of 1997, the subject-matter of which related to the same property that is the subject-matter of the present proceedings. The said suit was filed by five persons including the petitioner against the present respondents, wherein Mr. Rashid A. Rizvi as Judge of the High Court of Sindh had passed an interim order in favour of the plaintiffs including the petitioner by issuing injunction restraining the defendants/respondents from demolition of the building. We do not see how the appearance of the learned counsel for one of the parties now has caused any prejudice to the case of the petitioner. There is no rule preventing a counsel from appearing on behalf of the other party in a case in which he had at some earlier stage passed an order as a Judge. This application is therefore misconceived and accordingly dismissed.
4. The case has a chequered history and for disposal of the present contempt matter we need not narrate details of the various litigations and the decisions given therein by different Courts. The substance of the charge against the respondent is that the order of ejectment was passed in favour of the respondents/contemnors regarding Plot Nos, SR-6/3 and SR-6/4 (statedly Shop Nos.
1-4) and under its garb while getting the decree for ejectment executed the respondents dispossessed the petitioner from Shop No. 13, which was not the subject-matter of the said proceedings. In support of the charge the petitioner referred to a plan prepared by Muhammad Iqbal, witness for the defence who had referred to his earlier report (Exh.1/60/1) dated 15.3.1999. In the report he had given details of the shops occupied by different persons including Messrs Noorani Travels, of which the petitioner is a partner, mentioning it as office No. 5/13. He also prepared the sketch annexed with report Exh.1/60/4. He had clarified that the report and the,sketch were prepared while he had conducted survey of the building alongwith the official assignee in an earlier litigation. The petitioner submitted that the said report was also signed by the defendants.
He further referred to his own statement recorded by the Sessions Judge stating that his Shop No. 13 is situated on Shahrah-e-Liaquat whereas Shop Nos. 1-4 regarding which the respondents had filed ejectment petition is on Altaf Hussain Road New Challi.
5. Mr. Rashid A. Rizvi, learned Senior Advocate Supreme Court for respondent No. 1 submitted that plea of the petitioner that the shop occupied by him was separate and independent from the others regarding which order of ejectment has been passed was taken up by the petitioner in Civil Petition No. 445-K of 2006 which was rejected by this Court in the judgment dated 25.2.2008, out of which the present contempt proceedings have arisen. That in the application earlier submitted during trial of the ejectment proceedings for impleadment as intervener the petitioner had admitted that he was in occupation of shop included in SR-6/3 and SR-6/4; that he had never ever pleaded of being in occupation of shop No. 13. Clarifying the assignment of numbers of the shops the learned counsel submitted that the reports shows that in fact none of the shops were numbered but the official assignee of the High Court of Sindh in the earlier .Suit No 403 filed by the petitioner had for convenience assigned numbers to the shops. The learned counsel referred to application made on behalf of Messrs Noorani Travels under Section..10(3) of the SRPO, 1979 praying for deposit of rent, water and betterment tax in Court, wherein the premises No. 3/4 Plot SR- 6, Shahrah-Liaqat was mentioned to be in their possession. He further contended that there was no allegation of any violation or disobedience or non-compliance of the orders of this Court.
That in order to hold the respondents for contempt of Court the petitioner/complainant is to establish such violation. Reliance was placed on Qadeer Ahmad v. Punjab Labour Appellate Tribunal (PLD 1990 SC 787) and Facto Belarus Tractor Limited v. Government of Pakistan (PLD 2005 SC 605). Mr. Mansoor-ul-Arfin. Learned Advocate Supreme Court for respondent Nos. 2-3 adopted the arguments of Mr. Rashid A. Rzvi, and cited Ch Rafiq Ahmad Shad v. The Punjab Road Transport Board (1,985 SCMR 1919) and Pakistan State Oil Company Ltd. v Pirjee Muhammad Naqi (2001 SCM R 1140) to contend that in the absence of any Allegation of disobedience of the Court orders the contempt proceedings be dropped. That the Supreme Court had by order dated 25.2.2008 simply dismissed the petitioner's petition and thus these proceedings based on such judgment are misconceived.
6. Two questions need to be addressed. Firstly, whether the respondents have violated any order of this Court and secondly, whether the ejectment proceedings that had culminated in favour of the respondents and the order of eviction duly executed covered the premises in occupation of the petitioner. The allegation of the landlords/respondents was that the premises were tenanted _ to one Taj Muhammad, who had sublet the same to others including the petitioner. On the other hand the case of the petitioner is that the said Taj Muhammad vas not tenant of the respondents but was only authorized to collect rent from the tenants on their behalf. It may -be stated that the petitioner had made application for being impleaded as party which was dismissed. Be that as it may, the record shows that the ejectment proceedings were related to The entire constructed area on Plot S.R-6/3 and 4, Shahrah-e-Liaquat/Frere Road, Karachi. The petitioner also does not dispute it but reads that his shop No. 13 does not fall within the said are. The record belies this plea. The first document in this context is the petitioners own application under Order I, Rule 10, C.P.C. Submitted by him as intervenor in the Rent Case No. 1631 of 1992. In paragraph No. 2 whereof he stated that:- "the building on Plot No. SR-6/3 and 4 is a huge multi-tenement building comprising around forty different tenements occupied by separate business firms and individuals."
He goes on to state in paragraph No. 5 that:- "the Intervenors are in occupation of a portion of the tenement on Plot No. SR-6/3 and 4 in their own right and have been paying rent to the Rent Collector i.e. The Opponent and are entitled to retain the occupation as authorized tenants under Law."
It was the petitioner's own case that he had occupied a portion of the tenement of Plots No. SR-6/3 and 4. The plea that the premises in occupation of the petitioner is separate and independent of that covered by the ejectment proceedings was raised by the petitioner before this Court in Civil Petitions Nos. 445-K to 447-K of 2006, which was addressed and rejected in the judgment of 25th February, 2008 on the basis of which the petitioner has filed the present application for contempt.
In Paragraph No. 3 of the judgment the petitioner's contention that he was necessary party to the rent case as well as in the execution application as he was in possession of the rented premises in his capacity as a lawful tenant since 1979 was mentioned. Further argument was advanced that the ejectment order could not have operated against the petitioner as it was passed regarding tenements No. 1 and 4 while the petitioner was in as it was passed regarding tenements No. 1 and 4 while the petitioner was in possession of a distinct and separate property. This argument was rejected and it was held:--- .............................. While the petitioner is in possession of a distinct and separate property, it may be mentioned here that the stand taken by the petitioner before the Courts below as well as this Court is highly inconsistent, inasmuch as on one hand it is being pleaded that since the petitioners are occupying a different premises and the eviction application filed by respondents No. 1 to 3 against respondent No. 4 is in respect of tenements No. 1 and 4, therefore decree passed in favour of respondents No. 1 to 3 cannot affect his rights and on the other it is solicited that since the respondent No. 4 was authorized to sublet the premises in question by its original owner, therefore, the petitioner being "authorized sub-tenant" cannot be evicted in execution of the decree/order obtained against respondent No. 4."
7. All the three petitions of the petitioner were dismissed. The petitioner had heavily relied upon the sketch prepared by the official assignee in the earlier litigation. It is true that the said application does mention shop No. 13 but it appears that the sketch was prepared only for the sake of clarity so as to pinpoint the exact location of the shop in occupation of the petitioner and other tenants. The report by Engineer Muhammad Iqbal also shows that upon visit of the site the premises were not numbered. There. Is rho official record to show that the .Premise in occupation of the petitioner- was assigned any number. It thus emerges from the above discussion that not only the petitioner's premise was included in SR-6/3 and 4 but the plea taken by him to the contrary has already been rejected by this Court.
8. We also fail to understand as to what order of this Court has been violated by the respondents. In fact the petitioner's petitions were dismissed. A person aggrieved of violation of an order of the Court has to show that the same has been violated before any action for contempt of Court is initiated against the alleged delinquents. This principle is not only clear from Section 2 read with Section 3 of the Contempt of Court Ordinance, 2003 but declared in a number of pronouncements of this Court. In Facto Belarus Tractor Limited v. Government of Pakistan (ibid) this Court held:- "If a contravention of an order is to be visited with penalties of a criminal nature that. Order must be in clear and precise terms,. Setting out the obligations resting upon the person affected in 'clear and unmistakable language., The obligation must not rest upon any implication to be derived from and words - used in respect of other matters by the Court; it must be couched in express terms and must be brought directIy to the notice of the party.
9. In view of the above discussion, it is not possible to hold that the respondents had committed.
Any Contempt of Court as there is no evidence that they had violated any order of the Court.
Consequently, the charge against the respondents has not been established. They are , acquitted and Criminal Original Petition No.' 67' of 2009 stands dismissed.