MUHAMMAD NAEEM ANWAR, J.-This single judgment in the instant petition shall also decide C.O.C No.71-M/2018 titled "Muhammad Alam Vs. Afsar Biland and another" 'as both these matters are the outcome of the complaint filed by the respondent No.2 u/s 3 of the Illegal Dispossession Act, 2005 against the present petitioners and others.
2. Background of the instant petitions is that Afsar Biland, the respondent No.2, has filed a complaint u/s 3 of the Illegal Dispossession Act, 2005 alleging therein his illegal dispossession on part of the present petitioners alongwith Biland Iqbal and Dil Fayaz from his owned and possessed house situated at Totano Bandai, Kabal, District Swat as properly described 'in the headnote of the complaint, with a prayer that the petitioners alongwith two other culprits be punished in accordance with law. The complaint was filed on 21.04.2015 and on same day, the trial Court i.e., learned Additional Sessions Judge Izafi Zila Qazi, Kabal, Swat directed the S.H.O of Police Station Kabal to inquire into the matter and submit his report, on receipt of the same, notices were issued to the present petitioners and others. On 06.10.2015, charge was framed against the accused including the present petitioners and then the complainant was directed to produce his evidence.
During the course of proceedings, on 04.07.2016, the Charge was amended and on 27.09.2016, an application was moved by the accused/petitioners for dismissal of the complaint on the ground that neither they are qabza group nor they have illegally dispossessed the complainant/ respondent No.2 from the disputed house and that civil and criminal matters are pending adjudication before the Courts between them, thus, the complaint filed by respondent No.2 deserves dismissal, summarily. The learned trial court through its order dated 17.01.2017 dismissed the application of the petitioners with directions to the SHO concerned to ensure the delivery of possession to the complainant. The proceedings were adjourned for complainant's evidence. The order of the learned trial court pertaining to dismissal of their application and interim possession was assailed by the petitioners through W.P No.50-M/2017 before this court. During pending adjudication of the said writ petition, on 15.01.2018, the parties submitted a written compromise before this Court and requested for early hearing of the writ petition. Keeping in view the urgency in the matter, C.M No.67-M/2018 filed for early hearing was allowed on 24.01.2018. Mr. Naeem-ud-Din, Advocate appeared for petitioners whereas; respondent No.2 was represented by Mr. Fazal Rabi, Advocate. It was submitted before this Court that in view of the compromise deed (Mark-A), the then petitioners do not want to pursue their writ petition and as such requested that the matter be remitted to the learned trial Court in light of the terms and conditions so settled between them through Mark-A. In view of the statement made at the bar, W.P No.50-M/2017 was dismissed as not pressed by this Court on 24.01.2018. Accordingly, the parties appeared before the learned trial Court and on 08.05.2018, an application was moved by the present petitioners for their acquittal in the complaint in light of the decision of W.P No.50-M/2017 dated 24.01.2018, however, the complainant alleged before the learned trial Court that the terms and conditions of compromise (Mark-A) have not been fulfilled by the petitioners and thus requested that the complaint may be decided on merits, as such, the learned trial Court through its order dated 10.12.2018 dismissed the application of the petitioners and posted the complaint for further proceedings to 03.01.2019. The order of the learned trial Court dated 10.12.2018 has been assailed by the petitioners through instant petition whereas through connected C.O.C NO.71-M/2018 the petitioner 'Muhammad Alam is seeking the initiation of contempt of Court proceedings against respondent/ complainant for non- fulfilling the terms and conditions of compromise (Mark-A) and the decision of this Court dated 24.01.2018. Since, both the matters are arising out of the complaint filed by respondent No.2, therefore, we propose to decide this and connected C.O.C No.71-M/2018 through this single judgment/ order.
3. Arguments heard and record perused.
4. It appears from the record that on 04.10.2023 when the connected contempt of Court petition was heard, an objection was raised by the learned counsel for respondent No.1 that at the time of compromise respondent was not in attendance before the Court and the statement was made by the counsel for respondent No.1, thus, keeping in view the statement of counsel for respondent No.1 notice was issued for appearance of Mr. Fazal Rabi, Advocate the then counsel for respondent No.1 who is before the Court. It appears form the order dated 24.01.2018 that the parties entered into a settlement which was reduced into writing and placed before the Court as (Mark-A), whereby it was agreed between the parties that the present petitioners had to pay an amount of Rs.1,50,000/- to respondent No.2, and on receipt of same, respondent No.2 and his legal heirs would not claim his/their ownership regarding the property which was the subject matter of complaint. Respondent No.2 alleged non-fulfillment of terms and conditions of the compromise (Mark-A) by the petitioners, thus, on the direction of this Court Mr. Fazal Rabi, Advocate, on whose statement, W.P No.50-M/2017 was disposed of appeared, who admitted at the bar that W.P No.50-M/2017 was disposed of on the basis of compromise deed (Mark-A) with directions to the learned trial Court to decide the complaint as per the terms and conditions so settled between the parties. He also submitted at the bar that in view of his statement alongwith statement of Mr. Naeem-ud-Din, Advocate, the said W.P No.50-M/2017 was dismissed as not pressed. He also deposed that the statement was made by him before the Court on the instruction of his client however, after remand he appeared before the learned trial Court on two/three dates and thereafter respondent No.2 engaged another counsel. From the statement of Mr. Fazal Rabi, Advocate (the then counsel for respondent No.1) it has become clear that the parties entered into settlement through their free will and consent. The questions before this Court through instant petition as well as connected C.O.C application arc that:
(a) Whether the tendering of compromise (Mark-A) in W.P No.50-M/2017 would bound down the parties to the complaint to get it decide in the terms of Mark A?
(b) Whether the learned trial Court in dismissing the application of petitioner has committed an illegality? and
(c) Whether the dispute regarding the fulfillment of terms and conditions of Mark-A would result into the initiation of proceedings under the Contempt of Court Ordinance, 2003?
5. The contents of Mark-A reveal that certain terms and conditions were agreed upon between the parties, on the basis of which, an amount of Rs. 1,50,000/- was to be paid by the petitioners to respondent No.2 (complainant). The petitioners alleged to have paid the said amount to the respondent No.2 whereas he (respondent No.2) disputed it and raised an objection that the petitioners have resiled from the agreed terms' and conditions. In such circumstances, when the fulfillment of the terms and condition were disputed, the matter could be resolved through specific performance of agreement but by the Civil Court and only after recording of evidence, the Court could determine that which party was at fault. Through W.13 No.50-M/ 2017, the interim order pertaining to dismissal of the application for rejection of complaint and direction to the petitioners to hand over the possession of the disputed house during pending adjudication of the complaint were questioned, thus, when the parties settled their dispute and the petitioners opted not to press their writ petition whereas respondent No.2 opted not to get execute the order pertaining to recovery of interim possession, the matter was remanded/ remitted to the learned trial Court with directions to deal with it as per the terms and conditions settled between the parties, in accordance with law.
6. Admittedly, the complainant/ respondent No.2 has never desired to get execute the order of the learned trial Court for interim possession, however, he disputed that the amount settled through mark-A has not been received by him rather contended before the Court that the amount which was received by him, was the rent of the house regarding the period for which the possession remained with the petitioners. In such an eventuality, the matter before the learned trial Court requires resolution of the fate of complaint filed by respondent No.2 alleging therein his illegal dispossession by the petitioners from the disputed house, amounting to a criminal act on part of the present petitioners alongwith two others and the learned trial Court in criminal proceedings could not direct the parties to prove the terms and conditions of the settlement and that which party was at fault. The learned trial Court has rightly allowed the complainant to proceed with his complaint for its logical conclusion.
7. More-so, the agreed terms and conditions before this Court were not conclusive rather it contain certain terms and conditions which were to be fulfilled by the parties, thus, it was an agreement in accordance with the provisions of the Contract Act, 1872. Both the parties have leveled certain allegations against each other: the petitioners intended to get execute it whereas respondent No.2 alleged non-fulfillment of the same on part of the present petitioners. The learned trial Court could not direct the parties either to make the payment before the Court or to decide the relinquishment of the ownership of respondent No.2 with respect of disputed house rather it could only decide the fate of the complaint pending before the learned trial Court. Thus, from the discussion made in the preceding Paras, no illegality could be pointed out by the petitioners in the impugned order of the learned trial Court in dismissing their application.
8. Turning to connected C.O.C No.721-M/2018 submitted by petitioner Muhammad Alain for initiating contempt of Court proceedings against the respondent Afsar Biland. We have before us the Contempt of Court Ordinance, 2003 where in section 2 "contempt" has been defined. When confronted, learned counsel for the petitioners submitted at the bar that the case pertains to non- fulfillment of the terms and conditions made before this Court, hence, respondent/ complainant is liable to be proceeded under the Contempt of Court Ordinance, 2003. Insofar as the "criminal contempt" is concerned, which has been defined u/s 2 (b) of the ibid Ordinance that "means the doing of any act with intent for or having the effect, of obstructing the administration of justice" whereas u/s 2 (c) "Judicial contempt" means "the scandalization of a Court and includes personalized criticism of a judge while holding office". The case of the petitioners does not fall within any of the definitions. Insofar as the sub-clause (iii) of sub-section (a) of section 2 of the Ordinance pertaining to "an undertaking given to, and recorded by a Court" is concerned, as discussed earlier, it was an undertaking but certain conditions which were to be fulfilled by the parties thereafter, which have been disputed by them by alleging the violation thereof against each other. The word "undertaking" has been defined in Black's Law Dictionary in terms that "an under taking is the entrance of two parties into such relationship as that one party, on account of the bare relationship unaided by any agreement, has a new duty to perform towards the other; he undertakes a new duty. The violation of the undertaking is not a tort, properly so called. It is a careful and exact use of legal language to call an undertaking a consensual obligation; it is burden into which the obligator must voluntarily enter" whereas it has been defined in Osborn's Concise Law Dictionary as "A promise, especially a promise in the course of legal proceedings by a party or his counsel, which may be enforced by attachment or otherwise in the same manner as an injunction". In the matter in hand, the terms and conditions so settled between the parties require determination of the fault on the part of a party whereas, the undertaking defined in section 2(a)(iii) of the Ordinance of 2003 is a conclusive statement, leaving nothing for the Court to proceed further and to determine validity, correctness or obligations of the parties to be fulfilled while the term "agreement" requires the fulfillment of the settled terms and conditions from the parties. Thus, it was not an undertaking made before the Court for determination of the complaint rather on the basis of fulfillment of the settled conditions the specific amount was required to paid by the petitioners to respondent/ complainant who in lieu thereof had to relinquish his proprietorship in respect of the house, which has been disputed by them through their respective versions. Hence, the case of the petitioners does not fall under sub-clause (iii) of section 2 (a) of the Contempt of Court Ordinance, 2003 and in such an eventuality, no proceedings could be conducted rather the respondent/ complainant could not be tried and this matter does not require further proceedings through recording of evidence. The Hon'ble Supreme Court in the case of Naveed Nawazish Malik v. Ghulant Rasool Bhattl and another reported as (1997 SCMR 193) has observed that: "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 noncompliance 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."
Indian Supreme Court in the case of Balm Ram Gupta v. Sudhir Bhasin and another (AIR 1979 SC 1528) has held that: "Here the High Court has undoubtedly committed an error of law. There is a clear cut 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."
In the case of Muhammad Nazeer Versus Lahore Development Authority through Director General and 3 others (2007 MLD 3007) it was observed that: "I will leave matters here as they are. To my mind, no violation of any direction or order passed- by this Court upon a reading of the- entire record of these cases stands made out. So far as the said agreement is concerned, it will not be possible to enforce the same in view of the conflicting factual pleas of the parties in proceedings in contempt or the said writ petition. The petitioner may, however, file a properly constituted suit for the performance of the said agreement which suit if, filed shall be dealt with and decided in accordance with law after giving a chance to, both the parties to lead evidence and hearing them. With these, observations, the Cr.0. as well as the writ petition are disposed of."
In case titled Khalid Mumtaz versus Hamid Ali Khan (1991 MLD 2064) it was held that: "Perusal of the compromise indicated that it pertained to the dispute of a civil nature. The parties were striving on certain rights and liabilities arising out of their mutual transactions. The law has not only laid down special provisions but also specific procedure for the enforcement of such a cause. The agreement in question required not only the determination of respective rights and obligations of the parties but also involved various legal issues such as limitation, valuation for stamp duty and court-fee, the excitability or otherwise of the terms of agreement/settlement on legal or equitable premises etc. These and other allied issues could be decided only in civil proceedings by a competent Court after detailed enquiry."
9. Viewing the above facts of the instant petition and the agreement settled between the parties through compromise (Mark-A) in juxtaposition with the definitions as provided in section 2 of the Contempt of Court Ordinance, 2003, the petitioners have not been able to make out a case either for issuance of writ against the respondent/complainant or for initiating the contempt of Court proceedings against him, thus, both the instant petition and connected C.O.C No.71-M/2018, being bereft of merits, are hereby dismissed.