' SHAHID WAHEED, J.- This appeal is directed against the judgment dated 31.10.2008 whereby the learned Addl. District Judge, Sialkot accepted the application filed by the respondent No, 2 under Order XXXIX, Rule 2(3), C.P.C. And the appellant was directed to be detained in civil prison for a period of 6 months.
2. Briefly, the facts of the case are that in the year, 1998 the Government of Punjab launched City Development Project for Sialkot city. The District Administration surveyed various roads in the town and prepared a list of encroachments. Chief Corporation Officer, Municipal Corporation, Sialkot on receipt of encroachment report issued notices to the encroachers to remove the encroachments.
Frontier Works Organization (FWO) was entrusted with development work by the Commissioner, Gujranwala and the funds were provided by the Punjab Government. The respondent No, 2, Professor Abdul Hameed Akhtar, on receipt of demolition notice of property No, 30/236 consisting of a house and a shop at Church Road, Sialkot instituted a suit for permanent injunction. Along with plaint an application under XXXIX, Rules 1 & 2, C.P.C. Was also filed for grant of interim injunction.
This application was dismissed by the learned Trial Court vide order dated 21.2.2001. Feeling aggrieved, the respondent No, 2 filed an appeal before the learned Addl. District Judge, Sialkot.
Notice of the appeal was issued to the other side vide order dated 23.2.2001.On the next date of hearing i.e, 24.2.2001 the respondents of the appeal entered appearance before the learned first Appellate Court. After hearing preliminary arguments, the learned Duty Judge (Addl. District Judge) restrained the respondents of the appeal from demolishing the disputed premises till the next date of hearing. The case was adjourned to 28.2.2001. On the said date the respondent No, 2 moved an application for appointment of local commission. During pendency of application for appointment of local commission, the respondent No, 2 on 15.6.2001 moved an application under Order XXXIX, Rule 2(3), C.P.C. For initiation of proceedings against (i) Administrator Municipal Corporation, Sialkot, (ii) Frontier Works Organization through Officer Incharge of FWO, (iii) Municipal Magistrate, Sialkot; and (iv) Mr. Nadeem Sarwar, Magistrate 1st Class, District Courts, Sialkot (hereinafter called the "defendants"). Before proceedings further it is worth mentioning here that the present appellant relinquished the charge of the post of Administrator, Municipal Corporation, Sialkot on 15.6.2001. In response to notice issued by the learned Addl. District Judge, the Municipal Corporation through Tehsil Nazim, Sialkot submitted reply to the contempt application/ application filed under Order XXXIX, Rule 2(3), C.P.C. The learned Addl. District Judge vide order dated 3.6.2002 framed the following, issues:- "1 Whether the respondent in violation of injunction order dated 24.2.2001 demolished a part of the house of the petitioner, if so, to what effect? OPP
2. Relief."
' The respondent No, 2 appeared before the learned Addl. District Judge as AW-3 and in support of his claim produced Irfan Bashir (AW-1) and lqbal (AW-2). Vide order dated 16.7.2003 right of the defendants was closed and the matter was fixed for final arguments. From 18.7.2003 till 01.02.2008 the matter remained pending for hearing of final arguments. The learned Addl. District Judge, Sialkot vide order dated 8.2.2008 issued notice to the Tehsil Nazim, Sialkot directing him to intimate the court about the present place of posting of the defendants. After getting addresses, the learned Addl. District Judge, Sialkot vide order dated 14.2.2008 summoned the defendants. On 28.5.2008 the present appellant entered appearance before the learned Addl. District Judge and sought an adjournment for preparation of his arguments. Thereafter, on 15.7.2008 the present appellant submitted his reply to the application filed under Order XXXIX, Rule 2(3), C.P.C. After having received the reply, the learned Addl. District Judge, Sialkot vide order dated 31.10.2008, accepted the application filed by respondent No, 2 under Order XXXIX, Rule 2(3), C.P.C. And directed that the appellant be detained in civil prison for a period of 6 months.
3. The appellant through this appeal has called in question the order dated 31.10.2008 passed by the learned Addl. District Judge Sialkot on the grounds: that he was not allowed to lead evidence in support of his claim; that entire evidence was recorded in his absence whereas the contempt proceedings are of a criminal nature and the presence of the contemnor was necessary during the proceedings; that the findings of the learned Addl. District Judge are not based on record and were totally extraneous to the facts of the case; that evidence produced by respondent No, 2 does not make out any case of violation of any injunction; that contempt application was moved against three other persons but the impugned judgment does not make any mention of remaining three persons; that contempt proceedings are always initiated against the person who violates the injunctive order and not against the institution like Corporation; and, that he being an old man who had a serious paralysis attack cannot serve punishment.
4. Name of the learned counsel for respondent No, 2 has appeared in the cause-list and despite this fact none has entered appearance on behalf of the respondent No, 2 and resultantly he is proceeded against ex parte.
5. I have heard the appellant and perused the record.
6. The questions which fall for determination in this appeal are as to whether the proceedings conducted by the learned Addl. District Judge were in accordance with law; and, that as to whether in the given facts and circumstances of the case the appellant could be punished under Order XXXIX, Rule 2(3), C.P.C. The answer to the first question hinges upon the appraisal of proceedings conducted by the learned Addl. District Judge. The respondent No, 2 instituted a suit for permanent injunction against: (i) the Municipal Corporation through Administrator; and, (ii) Chief Corporation Officer, Sialkot. The learned Trial Court vide order dated 21.2.2001 refused to grant interim injunction to respondent No,
2. The respondent No,2 assailed the above said order before the learned Addl.
District Judge, Sialkot who on 24.2.2001 passed order that "in the meanwhile, the respondents are restrained from demolishing the disputed premises till the next date of hearing." The respondent No,2 on 15.6.2001, filed an application under Order XXXIX, Rule 2(3), C.P.C. There were four respondents of this application (which hereinbefore have been called as the defendants) i.e, Administrator, Municipal Corporation Sialkot, (ii) Frontier Works Organization through Incharge Officer of FWO (iii) Municipal Registrar, Sialkot and (iv) Mr. Nadeem Sarwar, Magistrate 1st Class, District Courts, Sialkot. Before proceeding further it is pertinent to mention here that contempt proceedings are always initiated against a person who A violates the injunctive order and not against the institution/organization and its offices. The learned Addl. District Judge without realizing the above stated legal position issued notices to the above said defendants. The Municipal Corporation, Sialkot through Tehsil Nazim submitted reply to the application. After getting reply the learned Addl. District Judge vide order dated 3.6.2002 framed issues. The respondent No,2 in support of his claim led evidence but right of the defendants to lead evidence stood closed vide order date 16.7.2003. The resume of afore-stated proceedings of the lower court shows that till the closure of right of defendants to lead evidence the appellant was not in attendance before the learned Addl. District Judge for the reason that no notice was issued to him and he had relinquished the charge of the post of Administrator, Municipal Corporation on 15.6.2001. The whole proceedings were conducted in his absence. The learned Addl. District Judge also did not take any step to ascertain the name of the incumbents of the posts of Administrator, Municipal Corporation, In-charge Officer of FWO and Municipal Magistrate (who were arrayed as respondents Nos. 1, 2 and 3 in the application). After closing the right of the defendants to lead evidences, the learned Addl.
District Judge initiated the proceedings to procure the attendance of the appellant and other officers. After securing the presence of officers including the present appellant, the learned Addl.
District Judge neither afforded them an opportunity, to lead evidence but instead heard the arguments; accepted the application filed by respondent No,2 under Order XXXIX, Rule 2(3), C.P.C.; directed to detain the appellant in civil prison; and, passed no order with regard to other defendants/officers. The proceedings conducted by the learned Addl. District Judge were neither fair nor in accordance with law. The learned Addl. District Judge was required: firstly, to check as to whether the respondents/ defendants were impleaded by name; secondly, to get reply of all the alleged contemners; thirdly, to frame issues in the light of application and reply of alleged contemners; fourthly, to allow the applicant as well as the alleged contemners to lead evidence; and, fifthly, after hearing arguments to pass an order according to the conduct of each alleged contemner. The proceedings were not conducted in the above stated manner; and, thus it is clear that the learned Addl. District Judge had exercised his jurisdiction illegally and with material irregularity.
7. Leaving aside the afore-stated material irregularities committed by the learned Addl. District Judge, the evidence led by the respondent No,2 does not make out any case of contempt of court or violation of temporary injunction as it does not show any intentional disobedience of the order by the present appellant. In order to constitute punishable contempt the disobedience must be willful [see Pitrus Lahara, v. R. V. Dalal, (AIR 1953 Nag 179); and, Radhamohan Rana and others v.
Gobinda Gopalananda (AIR 1951 Orissa 230). The mere unintentional disobedience to judgment, order or process of court amounts to contempt in theory only and does not render a person liable to punishment. In this regard reference may be made to the case of State of Bihar v. Rani Sonabati ,Kumari, (AIR 1954 Patna 513) and N. Baksi v. O.K. Ghosh (AIR 1957 Patna 528). It goes without saying that penal provisions of law are always required to be applied with due care and caution, especially when the question of sentence of imprisonment and liberty of a citizen is involved. Before convicting and sentencing someone, the court must, besides the violation of any order, satisfy itself that the violator of the stay order had intention to challenge the authority of the court; and, it was not an act under some misunderstanding or misapplication. Existence or mens rea on the part of violator of injunctive order' is essentially required to be explored and established beyond doubt. I am afraid the above said principles escaped from the consideration of learned Addl. District Judge who by misreading and non-reading of evidence passed the impugned judgment. The statements of the witnesses who appeared on behalf of the respondent No, 2 do not show that the present appellant violated the injunctive order of the court deliberately/intentionally or that he had challenged the authority of the court. The observation regarding the conduct of the appellant as recorded by the learned Addl. District Judge in the impugned judgment does not find support from the record. Thus, the sentence awarded to the appellant is not sustainable.
8. In view of above, this appeal is allowed and judgment dated 31.10.2008 passed by the learned Addl. District Judge, Sialkot is set aside and the application filed by respondent No, 2 under Order XXXIX, Rule 2(3), C.P.C. Is dismissed with no order as to cost.