CM No.1 of 2017.
By virtue of Intra Court Appeal, the appellant has called-in-question the validity of contempt proceedings initiated by the learned Judge-in-Chamber on the application of respondent No.1 and the interim order passed in the following terms:- "Notice for the above said date. Needless to mention, that the learned Arbitrator is supposed to act strictly in terms of paragraph No.58 of the order dated 18.04.2017, passed by the learned Civil Judge Ist class, Lahore, if the order still holds the field".
2. On last date of hearing i.e. 29.05.2017 considering contentions of the appellant prima facie reasonable pre- admission notice was issued to the respondents who were on watching brief, hence accepted the notice, therefore, no temporary injunction was issued with this understanding that today the parties will argue the case, however, verbally it was made clear that if the parties will not be in attendance on the date fixed, the Court will decide the fate of CM No.1 of 2017. Today, the Deputy Attorney General who was in attendance on last date of hearing has sent a request for adjournment on account of his engagement in another case fixed before the Peshawar High Court and the present incumbent shown his inability to argue the case, therefore, this Court has no option except to hear the parties in order to decide the application for grant of temporary injunction.
3. We have heard the learned counsel for the parties and examined record of the case. It is expedient to reproduce the order of the learned Civil Court allege d to have been violated/disobeyed by the parties of suit. It is pertinent to note that the name of Arbitrator who was not party to the suit was also included in the array of the respondents in the Crl. Original filed by respondent No.1 to initiate contempt proceedings:- "In view of above discussion, the plaintif f has made out a prima facie arguable case in its favour , balance of inconvenience also lies in its favour and if the injunction is not granted, the plaintif f shall suffer irreparable loss.
Resultantly , the application for temporary injunction is hereby accepted and ad-interim injunction already granted is hereby confirmed till the final decision of the case and operation of the impugned notice dated 26.08.2016 is hereby suspended and respondents are restrained from proceeding with, taking any step and participating in the said Arbitration Proceedings in any manner whatsoever on the basis of impugned Expert Determination. However, it is made clear that IPP and NTDC being party to the Power Purchase Agreement can resolve their dispute through any of the mode mentioned in Article 18 of the Power Purchase Agreement but not by impleading GOLP in these proceedings and by not relying upon impugned Expert determination".
It is imperative to mention here that the present appellants being dissatisfied challenged the vires of order of the learned Civil Judge in appeal before the learned District Judge which is pending adjudication; therefore, it is not appropriate to adjudge the validity of the said order. Even otherwise this question is not before us. It is necessary to reproduce the relevant part of the order of learned Judge-in-Chamber giving grievance to the appellant to file this appeal:- "Notice for the above said date.Needless to mention, that the learned Arbitrator is supposed to act strictly in terms of paragraph No.58 of the order dated 18.04.2017, passed by the learned Civil Judge Ist class, Lahore, if the order still holds the field".
4. Contention of learned counsel for the appellant is that the Arbitrator was not a party before the learned trial Court nor any relief had been sought against him by the parties of the suit rather the parties were allowed to avail the remedy provided under Article 18 of the agreement-Arbitration proceedings, therefore, the learned Judge-in-Chamber travelled beyond his jurisdiction while issuing direction to the Arbitrator. Even otherwise the contempt petition before this Court qua violation of order of the learned trial Court is not amenable, hence liable to be quashed. No direction of any nature, negative or positive, can be passed by a Court while exercising jurisdiction under Contempt of Court Ordinance, 2003. This Court is not competent to take cognizance of civil contempt committed in respect of an order of Civil Court passed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908. Reliance is placed on Syed Yousaf Raza Gillani, Prime Minister of Pakistan v.
Assistant Registrar, Supreme Court of Pakistan and another (PLD 2012 SC 466), Justice Hasnat Ahmad Khan and others v. Federation of Pakistan/State (PLD 2011 SC 680), Dr. M. O. Ghani, Vice-Chancellor, University of Dacca v. Dr. A.N. M. Mahmood (PLD 1966 SC 802), Muhammad Siddique v. Mr. Basit, Additional Director, K.D.A. and 2 others 1991 MLD 1832 (Karachi), Bimal Chandra Sen v. Kamla Mathur and Anr 1983 CriLJ 495), Rudraiah v. State of Karnataka and Ors. AIR 1982 Kant 182, Dalib Singh v. Ram Nath and Anr. 2003 CriLJ 2984, Shiv Nath Prasad Khandelwal v. Ram Kuma, District Magistrate and Anr.
2003 CriLJ 1853, Dr. Nazeer Saeed v. Muhammad Javaid and 16 others (PLD 2014 Lahore 660), Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore PLD 1960 (W.P.) Lahore 751, Prithawi Nath Ram, v. State of Jharkhand and others AIR 2004 SC 4277, State of Bihar and others v. Rajendra Singh and another, AIR 2004 SC 4419, K.G. Derasari and another v. Union of India and others (2001) 10 Supreme Court Cases 496, Muhammad Swaleh and another v. Messers United Grain & Fodder Agencies (PLD 1964 SC 97), Mian Sultan Ali Naghiana v. Mian Nur Hussain (PLD 1949 Lahore 301), S.M. Waseem Ashraf v.
Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others (2013 SCMR 338) and Abdul Haleem v . Raja Qurban Hussian and others PLD 1965 (W .P.) Lahore 570.
It is expedient to reproduce the nutshell of the judgment reported as Dr. Nazeer Saeed v. Muhammad Javaid and 16 others (PLD 2014 Lahore 660 ), last in series in this regard:- "Upon going through the above cited law and the judgments on the subject, it becomes crystal clear that while exercising jurisdiction under Article 204 of the Constitution or under the provisions of Contempt of Courts Ordinance 2003, the Court can only "PUNISH" the contemnor and no more. Even if, for a while, this is presumed that the Court could look into the vires of an order passed in pursuance to its direction, it can only do the same with the perspective of punishing the contemnor".
Examining of record reveals that the learned Civil Judge has permitted the parties to avail remedy provided under Article 18 of the agreement and in this regard parties have no objection to approac h the Arbitrator and proceedings being done by him except the condition imposed in the last two lines, validity of which is questioned before the learned District Judge, therefore, we will refrain ourselves to comment on any part of the order of the learned Civil Judge, hence confining ourselves to this extent to elaborate/clarify that the learned Civil Judge has permitted the parties to avail the remedy provided under Article 18 of the agreement which is with regard to resolution of matter through the Arbitrator. Since the learned Civil Judge has granted permission to the parties to avail the remedy of arbitration provided under Article 18 of the agreement between the parties, therefore, proceedings pending before the Arbitrator could not be considered violation of the order of learned Civil Judge, however the condition imposed by the learned Civil Judge in last two lines of his order viz "however, it is made clear that IPP and NTDC being party to the Power Purchase Agreement can resolve their dispute through any of the mode mentioned in Article 18 of the Power Purchase Agreement but not by impleading GOP in these proceedings and by not relying upon impugned Expert determination" (underline supplied) must have been followed by the parties in letter and spirit till it holds field as the matter in this regard is pending before the learned District Judge which shall be decided without being prejudiced from any observation of this Court. Since the order of the learned Civil Judge is self-explanatory, therefore parties are under legal obligation to act accordingly. By permitting the parties to avail the remedy of Arbitration the impleadment of GOP (Govt. of Pakistan) has been restrained; meaning thereby, remedy of Arbitration against Govt. of Pakistan has been restrained. Likewise impugned Expert Determination which was under challenge before the learned Civil Court has also been excluded from consideration in Arbitration proceedings. In such eventuality, being in agreement with law laid down by this Court based upon the dictum of Hon'ble Supreme Court, we are of the view that the learned Judge- in-Chamber has travelled beyond his jurisdiction while passing the impugned direction as there was no occasion for respondent No.1 to file application for initiating contempt proceedings against the appellants and the respondents because the parties were allowed to adopt/avail the remedy of Arbitration as envisaged under Article 18 of the agreement and participation in the proceedings of the Arbitration does not constitute any contempt unless violation is proved by leading cogent evidence and in that case except punishment to the contemnor no executory relief can be granted as the same would be within the domain of the Court. Moreover question of maintainability of Criminal Original is also under challenge in view of law laid down by Hon'ble Supreme Court referred ibid, therefore, we have no hesitation to suspend the operation of the impugned order.
MAIN CASE.
5. To come up for final arguments on 08.06.2017.