JAWAD HASSAN, J.---Through this Appeal, filed under Section 3 of the Law Reforms Ordinance, 1972, the Appellant has called in question the order passed in Crl. Orgl. No,316- W/2012 dated 29.02.2016 by the learned Single Judge (the "Impugned Order"), whereby he has passed the following order: "By consent, order dated 07.06.2014 is set-aside and matter is remitted to Respondent No,1, with direction to decide it afresh, after hearing the Petitioner and all concerned. through a speaking order, within four weeks, from the date of receipt of this order, under intimation to this Court through Deputy Registrar (Judicial)
2. Disposed of.
2. Brief, the Respondent No,1 filed contempt Petition (Crl. Orgl. No,316-W/2012) against the Tehsildar and others for violation of order dated 13.12.2011 passed by this Court in W.P. No,15408/2010 praying therein that the Respondents be summoned to appear in the Court and they be punished for violating the directions of this Court and they be again directed to implement the orders without delay in the best interest of justice and fair play, whereupon the learned Single Judge has passed the above reproduced order. Hence, this Appeal.
3. Learned counsel for the Appellant has submitted that the learned Single Judge has granted the relief which has never been sought by the Respondent No,1 in the petition; that the contempt petition was filed in the year 2012 whereas the order dated 07.06.2014 was passed in the year 2014 by the Commissioner who was not party to the contempt petition, as such the impugned order suffers from legal infirmity; that the Respondents were not party to the writ petition against which the contempt petition was filed; that the material facts were concealed by the Respondent No,1 from this Court and obtained the impugned order which shows his mala fide; that the order dated 07.06.2014 was passed by the Commission after hearing the Appellant and the Respondent No,1 but the same was never challenged before any forum and was attained finality, as such remanding the same in contempt petition is in sheer violation of law.
4. On the other hand, learned counsel for the Respondent No,1 submitted that the impugned order has been passed with the consent of the parties and there appears no illegality in the same, therefore, does not call for any interference.
5. We have heard the arguments of the learned counsel for the parties and have perused the record.
6. From the perusal of record it reveals that the litigation between the parties starts when vide order dated 03.08.2001 correction was made in the revenue record by the Additional Deputy Commissioner (General) Headquarters with the power of Collector. Feeling aggrieved thereby the Respondent No,1 filed W.P. No,20935/2001 which was disposed of with the advise to the Respondent No,1 to avail the remedy of Appeal. Whereupon the Respondent No,1 filed Appeal which was dismissed vide order dated 17.04.2002 and thereafter Revision Petition as well as Review Petition were also dismissed vide orders dated 03.06.2003 and 24.08.2004 respectively. The Respondent No,1 then filed civil suit which too was dismissed vide order dated 18.05.2005 and Appeal there- against was also dismissed on 15.12.2009. Despite availing the remedy further, the Respondent No,1 filed Writ Petition No,15408/2010 without assailing the all previous orders. In pursuance of order dated 13.12.2011 passed in the said writ petition, the Commissioner, Lahore Division passed order dated 07.06.2014.
7. The impugned order was passed in the Crl. Orgl. No,316-W/ 2012 filed by the Respondent No,1 against the Tehsildar and others in which the order dated 07.06.2014 passed by the Commissioner, was set aside. The contempt petition is filed under Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") which provides as follows: "204. Contempt of Court.----(1) In this Article, "Court" means the Supreme Court or High Court.
(2) A Court shall have power to punish any person who,-
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court."
8. From the above Article, it is very much clear that the exercise of the power conferred on this Court by the said Article may be regulated by law and, subject to law, by rules made by the Court.
The contempt petition is between the Court and the contemnor but the learned Single Judge has passed the order which was not the subject matter before it. The Apex Court has consistently held that the Courts cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish a particular irregularity/illegality. There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them.
Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the Court for its consideration.
The Court cannot exercise discretion of ordering to set aside any order which is not before it as a subject matter. It is now well-settled principle of law that the relief given beyond the pleadings or at variance with the pleadings would not be admissible.
9. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the Respondent No,1 has no opportunity to resist or oppose such a relief, if the Court considers and grants such a relief, it will lead to miscarriage of justice. Thus, it is said that no amount of material, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
10. In the instant matter the learned Single Judge has ignored the aforesaid principles relating to the object and necessity of pleadings/ prayer. Even though setting aside of order dated 07.06.2014 was not pleaded or claimed by the Respondent No,
1. It is held that a prayer not specifically made cannot be considered by the Court. Where neither the party puts forth such a contention, the Court cannot obviously make out such a case not pleaded, suo motu.
11. The prayer clause of the contempt petition explicitly reveals that the order dated 07.06.2014 which has been set aside by the learned Single Judge was not the subject matter before it. The impugned order shows that although the same has been passed with the consent of the parties yet it was not required under the law to be passed in the contempt petition rather, the remedy for setting aside the order dated 07.06.2014 should be strictly in accordance with law. Hence, the impugned order is unconstitutional and does not have any legal sanctity and value in the eye of law. The learned Single Judge was not obliged to pass the impugned order by going beyond its powers/jurisdiction vested in it under the said Article as the delegatee could not go beyond the powers delegated to him. This Court in case titled Mrs. Razia Yaqub v. Malik Mohammad Ashiq and 2 others (PLD 2003 Lahore 486) has held as under:
5. The provisions of section 4 of the Contempt of Court Act 1976 as well as the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 provide that a contemnor can be convicted by the Court and can be sentenced with imprisonment and fine to the extent provided in the said provisions. No further jurisdiction has been conferred by the said provisions upon a Court seized of such a matter. According to Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. In the cases of Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lahore 623, Darbari Ram and another v. Ghulam Farid-Fazal Karim and others AIR 1930 Lahore 858 and Sukhdeo Rai and others v. Ram Narain Rai and another AIR 1930 Allahabad 387 it had clearly been held that a sale of property brought about in violation or disregard of a prohibitory order issued by a Court cannot be invalidate through contempt proceedings. However, the cases of Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 and Muhammad Sharif and others v. Lahore Development Authority, etc. 1989 MLD 95 relied upon by the learned counsel for respondent No, 1 had struck as we are respectfully bound by the above mentioned judgment of the Hon'ble Supreme Court of Pakistan in this respect and, therefore, we have no reason to doubt the competence and jurisdiction of the learned Judge-in Chamber to invalidate the registered sale deed in the present case. Be that as it may the question of propriety and advisability or otherwise of adoption of that course by the learned Judge-in Chamber in the present case remains to be examined by us in the present appeal.
12. From the above, it is obvious that under the contempt laws no further jurisdiction has been conferred to the Court except to punish the contemnor and to sentence him with imprisonment and fine or otherwise. However, the Court has not been bestowed with the jurisdiction to set aside an order in contempt petition which is not the subject matter before it.
13. In view of the proposition mentioned below, we suffice it to say that the learned Single Judge has not passed the impugned order in accordance with law and therefore, the same is liable to be set aside: No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset."
14. For what has been discussed above, the impugned order is not sustainable and calls for interference by this Division Bench; consequently the instant Intra Court Appeal is hereby allowed and the impugned order dated 29.02.2016 being without jurisdiction, is hereby set aside.