' MUHAMMAD IQBAL KALHORO, J.---This order shall dispose of C.M.A. No, 3243/2014 filed under section 94 read with section 151, C.P.C. And C.M.A. No,3244/2014 filed under Article 204 of the Constitution of Islamic Republic of Pakistan read with Order XXXIX, Rule 2(3), and section 151, C.P.C.
And sections 4, 5 and 6 of the Contempt of Court Ordinance 2003 and 2004. In the first application (3243/2014) the plaintiff has prayed that he may be allowed to raise remaining protective boundary wall over the suit plot, and in second one (3244/2014) he has prayed to punish the alleged contemnors for disobeying order of this Court dated 10.3.2014.
2. The background of these two applications is the claim of the plaintiff that he is owner and is in possession of a piece of land measuring 16 Guntas (1936 sq. Yards) situated in Survey No, 157 Safoora Goth, Malir Halt, Karachi. According to him, he purchased that land from one M/s. Eddul Jee Dinsha Ltd., Limited, Karachi against the consideration of Rs,4,800,000/- through a registered sale- deed dated 04.02.2011. His case is that the defendants are not allowing him to construct the boundary wall around his plot; and he apprehends that defendants will forcibly occupy his said plot. Being aggrieved by such a situation, he has filed the suit for declaration, direction and injunction as well as recovery of mesne profit and damages. His application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. For grant of interim injunction was disposed of vide order dated 18.5.2015 whereby defendant No,1 was restrained from raising any construction on the suit land and from utilizing or bringing the same in its occupation till the disposal of the case. The plaintiff has tried to construct the boundary wall around his said plot but due to defendants, his efforts have born no fruit. On 12.3.2014 when the plaintiff, after filing of the above suit and getting ad interim restraining order dated 10.03.2014 against the defendants from interfering with his lawful possession of the suit land, went to the said land to raise protective boundary wall, the defendants in defiance of the restraining order did not allow him to do so and manhandled his staff including the contractor and his laborers.
3. I heard the counsel on these two applications and perused the relevant record with their assistance. Mr. Khawaja Shamsul Islam, advocate for the plaintiff referred to the order dated 18.5.2015 passed on the injunction application. He read out the entire order with a particular reference to paras 6, 7, 8 and 9 thereof to emphasize that the plaintiff was in possession of the subject land; and defendant No,1 was specifically ordered therein not to interfere with his possession. He also made a reference to the documents submitted along with the plaint to establish claim of the plaintiff over the suit land and his possession whereof. Learned counsel in his arguments also read out the order dated 10.03.2014 and pointed out that very specifically the defendants were restrained from interfering with the plaintiff's possession of the said land. He then maintained that defendants despite being in knowledge of such order committed defiance thereof by hindering the plaintiff from constructing the boundary wall over the said plot and by beating the laborers and others, hired for such work, on 12.03.2014.
4. Zia ul Haq Makhdoom, learned counsel for the defendants seriously disputed the contentions of the plaintiff. His argument was that the possession of the subject land was with defendant No,1 for the last many decades, which was even evident from the plaintiff's own pleadings filed by him under the Illegal Dispossession Act, 2005 against the defendants. His case is that defendant No,1 is the owner of the said plot and in this respect he referred to some notifications to establish his point.
5. Mr. Salman Talibuddin, learned Additional Attorney General spoke on behalf of the alleged contemnors. His trail of arguments was that the alleged contemnors were not party in the suit and were not aware of any restraining order. They were government servants working on senior positions with defendant No,
1. He said that question of possession of the said land was a disputed one and unless finally it was decided, the charges of contempt could not be brought against the contemnors. He emphasized that on that particular day (12.03.2014) it was the plaintiff who tried illegally to dispossess the defendants.
6. The plaintiff in his first prayer in the suit has sought a declaration to the effect that he is the owner of the suit land. In his second prayer what he has asked for, among others, is a declaration that the defendants' action of stopping him by force from raising the boundary wall or any other nature of construction on the suit plot is illegal and it amounts to a criminal breach of trust and misuse of authority. It is obvious from the plaintiff's own pleadings that he is seeking a declaration qua his ownership of the said plot and further to stop the defendants from putting any hindrance in his way to raise the boundary wall over the said plot. The reason to make such request by the plaint appears to be the counter claim of ownership and possession of the said plot by the defendants, which they have specifically iterated in their written statement. Apparently the issue of construction of boundary wall around the said plot is seriously contested by the parties, thus, in my view it cannot be dealt with in summary manner. The reliefs, being sought for by the plaintiff, which are hotly contested by the other side in the suit, can be granted to him only after the final adjudication of the -matter in his favour. If the plaintiff is declared to be owner of the suit land in terms of his first prayer and his possession is also established as per his pleadings, then along with these main reliefs, the consequential reliefs asked for by him would also be granted to him through the judgment and final decree. His prayer in the application (3243/2014) that pending the suit he may be allowed to raise boundary wall over the said plot, in my view, is a premature one and cannot be entertained at this stage. Learned counsel's reference to the order dated 18.05.2015 passed on injunction application is of no help either to the plaintiff in this regard. For, the observations made therein are tentative in nature, and the relief in terms of these orders is always granted by considering the prima facie arguability and an apparent nature of case in favour of the plaintiff. As per provisions of Civil Procedure Code, the rights of the parties in respect of any matter in controversy are conclusively determined only through judgment and decree. The order dated 18.5.2015 was passed in the Context of prayers raised in the injunction application. A perusal thereof indicates that the plaintiff was seeking a restraining order against the defendants, or any persons acting on their behalf, from parking any vehicles and using the suit plot or raising any construction thereon, in addition to praying for protection against the harassment and dispossession from the suit land at the hands of defendants. And this court in the order (dated 18.5.2015) has restrained the defendants from raising any construction over the suit land and from utilizing or bringing the same under its occupation till disposal of the case. This observation has been made to protect the status of the suit plot as it is till the final adjudication of the matter and will not be read by any stretch of imagination to have conclusively determined the rights of the plaintiff over the suit plot; or allowing him to raise the construction thereon.
7. As regards CMA No, 3244/2014 filed by the plaintiff to punish the alleged contemnors for violating this court's order dated 10.3.2014 whereby they were restrained from interfering with his possession of the suit land, it will suffice to say that the said order was passed without issuing notice to the defendants on the assertions of the plaintiff that he was in possession of the suit land. But subsequently, it so turned out, that the defendants have seriously disputed this fact through their written statement, The contemnors in their counter-affidavits have not denied the arrival of the plaintiff at the spot on the given day, however, their stance is that plaintiff tried to dispossess them of the land they are in possession of for the last many decades, And they only resisted the plaintiff's efforts by taking recourse to a legal remedy namely registration of FIR against him. Because of these peculiar circumstances; and particularly when still issues on all these contentious points between the parties are to be framed and evidence led to finally and conclusively determine rights of the parties, no finding can be given with regard to the fact that alleged contemnors have committed contempt of the above order. In the said context, it does not appear to be of any importance that whether the contemnors were in knowledge of the above order of this court or not.
Because the violation of the said order at the hands of the alleged contemnors would be deemed to have occurred only when it is unequivocally established that plaintiff was in possession of the said plot on the relevant date or it is so admitted by the alleged contemnors. As discussed above and in view of the counter claims made by the parties, the factum of possession coupled with the issue of ownership of the said plot is yet to be determined in the trial. Merely by looking at the documents submitted by the parties in support of their respective claims in the pleadings, which are yet to be produced in evidence and examined in accordance with the law, no conclusion in favour of either party can be drawn.
8. For what has been discussed above I see no merits in these applications that are dismissed accordingly.