' MUHAMMAD JUNAID GHAFFAR,J.---Through instant appeal the appellant has impugned order dated 1-10-2014 in Suit No,5 of 1998, whereby, the learned Single Judge of this Court has directed the appellant to comply with the order dated 6-3-2013 within 3 days, failing which contempt proceedings shall commence against the appellant.
2. Briefly, the facts of the case are that the respondent No,1 has filed a Suit against the appellant as well as respondents Nos. 2 and 3 for Declaration, Cancellation of Documents, Possession, Permanent Injunction and Mesne Profit as there appears to be a dispute between the parties regarding the ownership of House No, R-107, Sector 15-A/5, KDA Scheme Buffer Zone North Karachi Township, Karachi admeasuring 120 square yards. It appears that evidence has been recorded in the matter and the Suit is now being fixed for final arguments before learned Single Judge of this Court. On 6-3-2013 following order was passed:-- ' For final arguments.
6-3-2013 ' S. M. Gharib Nawaz, Advocate for plaintiff.
' Plaintiff is present in Court.
' Mr. Hakim Ali, Advocate for defendant.
' One of legal heirs of defendant Mst. Saeeda Nighat is present in ' Court.
' Yesterday, the parties requested for time to resolve the dispute and at their request, the matter was adjourned for today. Now the parties have agreed to resolve the dispute. Mst. Saeeda Nighat present in court, agrees that the property in question may be sold out through Nazir of this court and Rs,25,00,000/- may be paid to the plaintiff from the sale proceed and remaining amount shall be paid to her. Let in the first instance, Nazir is appointed commissioner to evaluate the property in question and obtain bids and submit the same in Court for approval. Mst.Saeed Nighat agrees to deposit Rs,30,000/- tentatively with Nazir of this Court for publication charges within three days positively. It is clarified that entire expense including publication charges and Nazir fee will be deducted from the sale proceed and will be adjusted in shares of parties. Nazir may also contact estate agents for valuation of property and submit highest bid in court for approval.. Adjourned to 21-3-2014 to be taken up in 1.00 p.m."
3. Thereafter, the appellant did not comply with the aforesaid order and instead withdrew the Vakalatnama of the Counsel representing the appellant and filed an application bearing C.M.A.
No,2899/2013 in person for modification of the order dated 6-3-2013. Thereafter the appellant engaged another Counsel and submitted before the Court that the appellant intends to withdraw the application bearing C.M.A. No,2899/2013 and also filed applications bearing C.M.A. No,6333/2013 under section 114, C.P.C. And C.M.A. No,9255/2013 under section .4 of the Limitation Act, seeking review/recalling of the order dated 6-3-2013. Learned Single Judge of the Court vide order dated 21-2-2014 decided all these applications and held that the order dated 6-3-2013 passed by the learned Single Judge was a consent order, hence cannot be reviewed. The appellant thereafter filed High Court. Appeal No,72/2014 impugning the order dated 21-2-2014 which was withdrawn by the appellant and thereafter a Civil Petition for Leave to Appeal bearing No,142-K/2014 was filed by the appellant before the Hon'ble Supreme Court which was also withdrawn by stating that the appellant would seek other legal remedies available under the law. Subsequently the appellant has filed an application bearing C.M.A. No,11404/2014 which is pending, whereas, the respondent No,1 has filed an application under section 3 of the Contempt of Court Act [Ordinance] bearing C.M.A. No,12555/2014 on which order dated 1-10-2014 has been passed by a learned Single Judge of this Court which has been impugned through instant appeal.
4. Mr. Moulvi Iqbal Haider learned Counsel for the appellant contended that the learned Single Judge was not justified in passing the impugned order, whereby, the appellant has been directed to comply with the order dated 6-3-2013 failing which contempt proceedings would be initiated against the appellant, as the appellant after withdrawing the High Court Appeal as well as Civil Petition for Leave to Appeal before Hon'ble Supreme Court, which were preferred against the orders dated 6-3-2013 and 21-2-2014 passed by the learned Single Judge of this Court, has filed an application bearing C.M.A. No,11404/2014, which is still pending and should have been decided prior to passing of any orders on the contempt application preferred on behalf of respondent No,1.
Learned. Counsel further contended that the order dated 6.3-2013 was not a consent order amongst all the parties and the appellant had not given any such consent, whereas, the Counsel then appearing on behalf of the appellant, due to some confusion had given consent before the Court on behalf of the appellant, whereas no such instructions were given by the appellant.
Learned Counsel further contended that the appellant cannot be penalized for an act of her Counsel for which no authority or permission was accorded by the appellant. Learned Counsel further contended that since order dated 64-2013 was not made an order of the Court, whereas, no judgment or decree has been passed in the matter till date, therefore, initiation of contempt proceedings and directions to the appellant to comply with the order dated 6-3-2013 is illegal and not justified in the instant case.
5. Conversely Mr. Gharib Nawaz Daccawala learned Counsel appearing on behalf of respondent No,1, contended that after dismissal of the Review Application preferred by the appellant against order dated 6-3-2013 and withdrawal of High Court Appeal as well as Civil Petition for Leave to Appeal before the Hon'ble Supreme Court, the appellant is once again trying to agitate the same controversy which has already been decided by the learned Single Judge through a well reasoned order dated 21-2-2014. Learned Counsel further contended that the appellant cannot resile from the consent recorded in the order dated 6-3-2013, hence, instant appeal is frivolous and misconceived, whereas the learned Single Judge has correctly initiated the contempt proceedings for violation of the order dated 6-3-2013.
6. We have heard both the learned Counsel and perused the record. Since a short controversy is involved, by consent of the learned Counsel for the parties, instant High Court Appeal is being heard and disposed of at Katcha peshi stage.
7. It appears from the record that respondent No, 1 has filed a Suit bearing No,5 of 1998 against the appellant as well as respondents Nos.2 and 3 in which the evidence of the parties has been recorded and the matter is now being listed for final arguments before learned Single Judge of this Court. It further appears that on 6-3-2013 when the matter was fixed for final arguments before the Court, some consent on behalf of the appellant was recorded by the Court from which the appellant was aggrieved, and thereafter filed applications bearing C.M.A. No,2899/2013, 6333/2013 and 9255/2013, seeking review of the order dated 6-3-2013. A learned Single Judge of this Court vide order dated 21-2-2014 was pleased to dismiss the review application bearing C.M.A.
No,6333/2013 filed under section 114, C.P.C. And C.M.A. No,9255/2013 filed under section 14 of the Limitation Act, whereas, office vas directed to fix C.M.A. No,2899/2013 in Court for hearing. Being aggrieved with the order dated 21-2-2014, the appellant preferred High Court Appeal bearing No,72/2014 which was later on withdrawn and thereafter, the appellant preferred a Civil Petition for Leave to Appeal bearing No,142-K/2014 before the Hon'ble Supreme Court which was also withdrawn by stating that the appellant would avail other legal remedies as available under the law. On 5-3-2014 the appellant also withdrew the application bearing C.M.A. No,2899/2013. After withdrawal of the High Court Appeal as well as Civil Petition for Leave to Appeal from the Hon'ble Supreme Court, the appellant preferred another application bearing C.M.A. No,11404/2014 under section 151, C.P.C. Which is pending, whereas, on 1-10-2014, when contempt application bearing C.M.A. No,12555/2014 filed on behalf of respondent No,1, was fixed before the learned Single Judge, the impugned order has been passed whereby the appellant No, 1 has been directed to deposit a sum of Rs,30,000/- with the Nazir of this Court within 3 days for compliance of the order dated 6-3- 2013, failing which contempt proceedings shall commence against her.
8. On perusal and examination of the record placed before us, it appears that insofar as instant appeal is concerned, primary grievance of the appellant is only to the effect that whether or not, contempt proceedings can be initiated against the appellant for the alleged violation of order dated 6-3-2013 in which some consent has been recorded on behalf of the appellant with regard to settlement of dispute between the parties. Though the leaned Counsel for the appellant has also tried to argue the case on merits of the order dated 6-3-2013, however, in view of the record and the proceedings in the instant matter, we are of the opinion that since the appellant herself chose to file a review application against the order dated 6-3-2013 and after its dismissal filed an appeal before this Court, and after withdrawing it, filed a Civil Petition for Leave to Appeal before the Hon'ble Supreme Court and again withdrew the same as well, therefore, the appellant cannot be allowed to re- agitate the merits of such order by filing application for review etc. However, the grievance expressed through instant appeal against the impugned order dated 1-10-2014 to the extent that as to whether, contempt proceedings initiated on behalf of the respondent No,1 could be entertained by the learned Single Judge and as to whether, the order dated 1-10-2104 has been correctly passed by the learned Single Judge, would be examined by this Court in the instant appeal. On perusal of the order dated 6-3-2013, it has been noticed that though it is mentioned in the order that the appellant No, 1 had agreed for selling the property in question through Nazir of this Court and for payment of Rs,25,00,000/- to the plaintiff, however, we may observe that such consent, if any, was not made part of the Court's order dated 6-3-2013 specifically, and rather on such proposal / consent of the appellant the Court at the first instance issued directions for appointment of Nazir of this Court as Commissioner, to evaluate the property in question and obtain bids for its approval from the Court. It has nowhere been observed by the learned Single Judge that such consent of the appellant is made an order of the Court, nor it has been recorded that the respondents have agreed to such proposal of the appellant. It is further noticed that the said order was passed on verbal submissions of some of the parties and not all the contesting parties, whereas, no formal application for settlement or compromise was on record in this regard.
This observation finds further support from perusal of Para 11 of the order dated 21-2-2014 passed by the learned Single Judge, while deciding the review application of the appellant, which reads as under:-- "Though the review application is not maintainable and liable to be' dismissed but in the interest of justice an important aspect cannot be ignored that on 6-3-2013 consent was recorded but in view of the consent, neither the suit was decreed nor it was disposed of in terms of compromise but after recording the consent further steps were to be taken including the depositing of publication charges, valuation of property and invitation of bids. So for all intent and purposes, the suit was not disposed of in terms of compromise and even if the review application is dismissed, this Court has to pass the orders for disposing of the suit in terms of consent order. Despite filing review application it is categorically clear from the statement of Mst. Syeda Nighat Naqvi which she made in her additional affidavit and C.M.A. No,2899/2013 that she sought the permission to sell out the property by her own and pay off the plaintiff. In the additional affidavit she stated that she was under the impression to pay off 10 to 15 lacs to the plaintiff. These statements do not show the compete departure from the consent order but made in order to achieve slight variance. The case-laws cited by Mr. Iqbal Haider are distinguishable and not germane to the facts and circumstances of the present case." (Emphasis supplied)
9. From perusal of the above observations of the learned Single Judge, it appears that the learned Single Judge himself came to the conclusion that despite the fact that the review application is not maintainable and liable to be dismissed but in the interest of justice, there is an important aspect of the case which cannot be ignored by the Court, that on 6-3-2013, though consent was recorded, but in view of the consent, neither the Suit was decreed nor it was disposed of in terms of the compromise, whereas, after recording of the consent, further steps were required to be taken including the deposit of publication charges, valuation of property and invitation of bids. It has been further observed by the learned Single Judge that for all intent and purposes the suit was not disposed of in terms of the compromise and even on dismissal of the review application, the Court is further required to pass orders for disposal of the suit in terms of the consent order. Therefore, once the learned Single Judge himself came to the conclusion that such consent of the appellant has not been finally taken as an order of the Court, whereby the suit could be decreed and disposed of, therefore, insofar as initiation of contempt proceedings for alleged non-compliance of consent order dated 6-3-2013 are not justified under the facts and circumstances of this case We may observe that even if the purported consent recorded on 6-3-2013 had been made part of the Court's order and a compromise decree would have been passed, still the proper course in law would be to seek execution of the judgment / decree through execution proceedings and not by filing a contempt application. Whereas, in the instant matter, it appears that the respondent No,1 is trying to seek enforcement of the order dated 6-3-2013 as if the Suit has been decided in her favor by such order, which is not the case. Therefore, even otherwise no case for initiation of contempt of Court is made out on behalf of respondent No,1.
10. In cases of compromise/settlement of disputes, if any contempt proceedings are required to be initiated against a delinquent party, then there must be an undertaking and or promise to the Court and not to the other party, in clear and specific terms, whereas, the Court must also have passed some orders which must have been based on such A offer/undertaking. Mere recording of an undertaking or consent which otherwise has been accepted by the other party, wherein no order has been passed by the Court pursuant to such consent, and when such consent is not to the Court , rather it is to the other party, then any breach of such consent would not amount to contempt of Court. In the instant matter, on perusal of the order dated 6-3-2013 and the order dated 21-2-2014 passed on the Review Application filed on behalf of the appellant, the only inference which we have been able to draw is, that even the learned Single Judge did not came to the conclusion with certainty, that any final order has been passed in the matter, whereby, the consent recorded on 6-3-2013 has either been made an order of the Court, or even to the extent that such consent has been accepted by all the parties to the proceedings, otherwise, the learned Single Judge while passing the order 21-2-2014 would not have made such observations as stated in Para 11 of the order reproduced hereinabove. Therefore, in our opinion, when neither the consent has been shown to have been accepted by all the respondents, nor such consent has been made as part of the Court's order, whereby, on the basis of which no final order, judgment or decree has been passed, no proceedings for contempt could be initiated for such violation. Reliance in this regard may be placed in the case of Naveed Nawazish Malik v. Ghulant Rasool Bhatti and another reported as (1997 SCM R 193) wherein, the honourable Supreme Court has observed as follows:-- "The consensus principle which emerges from a review of these authorities is the law recognizes distinction between an undertaking given to party and undertaking given to a Court. In the former case the Court record compromise between the parties and passes a decree/order and it does not amount to an undertaking to Court. Therefore, if in such a case breach is committed by any of the parties it will not amount to contempt of Court. But a party promise to the Court or gives an undertaking to the Court which is recorded or on the basis of such undertaking order is passed then breach of such undertaking shall be contempt of Court. We may however clarify that if on the basis of any compromise application of consent statement of the parties any direction or order is issued by the Court then the parries are bound to comply with it and breach of such an order will amount to contempt of Court. Mere non compliance with a consent order or compromise decree will not amount to contempt of Court unless such consent or compromise has been recorded by the Court and on that basis direction has been given in the order." (Emphasis supplied)
11. Similar view has been taken by the Indian Supreme Court in the case of Babu Ram Gupta v.
Sudhir Bhasin and another reported in (AIR 1979 SC 1528) which reads as follows:- "7. Coming to the first point, the contention of Mr. Asthana was that there was no undertaking given by the appellant to the Court at all. Our attention has not been drawn by counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can given an undertaking in two ways: (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court or (2) by a clear and express oral undertaking given by the contemnor and incorporated by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemnor, we are unable to find any material oh record which contains such undertakings. It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking given by the appellant. Here the High Court has undoubtedly committed an error of law. There is a clearcut distinction between a compromise arrived at between the parties or a consent order passed by the court at the instance of the parties and a clear and categorical undertaking given by any of the parties In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by their executing the order or getting an injunction from the court.
10. These are the tests laid down by this Court in order to determine whether a contempt of Court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would cooperate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemnor to carry out the directions contained in the order. With due respect, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs,10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A. He has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of A would be not to pray for the drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that noncompliance of a compromise decree or consent order amounts to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of cleary undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said to a consent order or a compromise decree where the fraud, if any is practiced by the person concerned not on the court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceedings for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemnor or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.
11. For these reasons, therefore, we are of the opinion that however improper or reprehensible the conduct of the appellant may be yet the act of the appellant in not complying with the terms of the consent order does not amount to an offence under S.2(b) of the Act and his conviction and order of detention in civil prison for four months is wholly unwarranted by law. The appeal is accordingly allowed. The judgment of the High Court is set aside and the order passed by the High Court directing the appellant to be detained in civil prison for four months is hereby quashed and the appellant is acquitted under S.2(b) of the Act."
12. Similarly in the case of Nisha Kanto v. Saroj Bashini reported in AIR (35) 1948.Calcutta 294 following observations of the learned Division Bench of the Calcutta High Court are relevant and read as follows:--
120. Gentle J. Followed a single Judge decision of this Court in 42 C.W.N.
208. In that case the word "undertake" was used in a paragraph in a compromise, although there was nothing to suggest that the undertaking was to a Court. The compromise was made a rule of Court, and Panckridge J. Came to the conclusion that the undertaking mentioned in the compromise was an undertaking to the Court. The learned Judge gives no reasons for so holding beyond the fact that the word "undertake" was used. But as I have stated the mere user of the word "undertake" does not mean a promise to a Court. It merely means a solemn promise to someone and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously undertakes to B, and not to a Court. In Building and Land Trust (India) Ltd. v. Tilok Chand Surana (unreported) decided on 22-5-1916, Clough J. Arrived at the same conclusion as that arrived at by Panckridge J. In the case I have cited and Gentle J. In the present case. The learned Judge appears to have thought that once the facts are borne in mind that the parties intended the agreement to be submitted to Court and that a decree was passed in terms of it, the word "undertake "when used in a compromise must mean an agreement by one of the parties to give an undertaking to the Court. I cannot accept that reason. It appears to me that each case must be decided on its particular facts and upon the precise words in the compromise under discussion and cases are not very helpful unless the words are precisely similar. In the present case, it appears to me, on a true construction of para 6 of the compromise, that there was nothing more than a solemn promise by the defendant to the plaintiff and the nature of that promise or undertaking could never be changed by reason of the compromise being accepted by the Court and a decree passed in its terms."
13. In view of hereinabove facts and circumstances of the instant case, wherein the learned Single Judge while dismissing the Review Application vide order dated 21-2-2014 has himself observed that despite there being recording of consent in the order, neither the suit was decreed, nor it was disposed of in terms of the compromise and merely further steps were directed to be initiated by the Court; hence, we are of the view that in such an eventuality, mere non-compliance of the Order dated -6-3-2013, would not attract contempt of Court proceedings. Accordingly, the impugned order dated 1-10-2014 is hereby set aside, with the directions to the learned Single Judge to proceed further in the matter and dispose of the Suit on merits in accordance with law.
14. Instant appeal stands allowed in the above terms.