' This revision petition arises out of the order, dated 30th May, 1984 passed by the District Judge, Toba Tek Singh in the respondent's appeal against the order, dated 19th February, 1984 passed by the executing Court whereby it had turned down his request for execution of a decree passed in his favour on 28th September, 1981 for declaration and mandatory injunction. Learned District Judge has, in execution of the decree for mandatory injunction, ordered under Order XXI, rule 32(2), C. P. C.
That- "it is hereby directed that the Chairman of respondent-Committee shall be detained in civil prison at Government expenses in Jhang Jail for such duration till he restores the previous position of the decree-holder, that is to say :-
(a) till he causes the structures/shop reconstructed on the disputed site in accordance with the site plan already got approved by the decree-holder from the Committee at the time of previous construction of his shop and puts him in possession thereof ; or
(b) till the decree-holder re-erects his shop on the disputed site in accordance with the site plan got approved for his previously constructed shop (which was demolished by the respondent) at his own expenses and if he demands compensation, therefor, till the respondent-Committee compensates him (decree-holder) for the expenses incurred by him on such reconstruction according to the satisfaction of this Court.
' The choice between these two alternatives shall rest with the respondent-Committee's Chairman."
2. Learned counsel for the petitioners argued that since the decree (Annex. `C') was passed on consent and is not itself clear in its terms, therefore, its meaning will have to be fixed by referring to the prayer made in the relevant suit instituted on 22nd May, 1980 and that when so read conjunctively therewith, it comes out that on the one part the decree is for a declaration to the effect that the order, dated 18th June, 1973 with respect to cancellation of rent (Tehbazari) of the area measuring 14' x 36' (boundaries detailed) is without lawful authority, void and ineffective against the rights of the plaintiff (now respondent) and on the other part it is a mandate in the form of an injunction that his position as it existed before that date be restored and that the defendant (Municipal Committee) will not transfer the said site on rent or otherwise in favour of anyone else. Learned counsel argued that this decree cannot be so construed as to grant a relief in excess of the prayer made in the suit. Then, with reference to the respondent's application bearing the date 5th October, 1981 for execution of the decree, he pointed out that the statement made in column 10 shows that he has made a three-fold prayer, first, a direction to issue to the judgment- debtor to receive rent from the decree-holder and issue a regular receipt for the same and, second, that the decree-holder being desirous of reconstructing his structure at his own cost, the Court may assist him in that, at the time of reconstruction at the site in dispute, the judgment- debtor or anyone else may not put up obstruction and, third, that two stacks of old bricks lying on the site in dispute be removed and a plant there be cut away. Learned counsel contended that none of these three prayers is open to be sustained upon the decree sought to be executed and that the aforesaid documents do not, by any stretch, bear out that the respondent had either raised any construction on the site in dispute or even that one may ever have been demolished by the petitioners and submitted that learned District Judge has erred in, without any basis, assuming that there may have existed some construction, possibly because the respondent had stated in his execution petition that he wanted to undertake reconstruction at his own cost. He argued that the assumption regarding existence .Of construction being altogether unwarranted in the facts and circumstances of the case, the two alternatives set out para. 9 of the impugned order are baseless and only fanciful. He also laid great emphasis on the fact that in his plaint the respondent decree- holder has neither given any detail of the supposed shops nor filed therewith any order regarding sanction of construction and has not put in even a sanctioned copy of the plan for construction and argued that, as such, it could only be anybody's guess to assume that there existed any construction on the site and submitted that under the circumstances he is at a loss to know as to what may the petitioners have to construct for the respondent or alternatively to pay for, whether a multi-storied building or a mere but ? He also made pointed reference to the conspicuous absence in the plaint of a statement, either express or implied, to the effect that anyone may have ever demolished any shop or other structure existing there and argued, that if either the construction or its demolition could be a fact then it was not anywise a trifling thing to have been ignored by him at the time of institution of the suit, to make a claim in only ambiguous terms for his position before 18th June, 1973 being restored, without anywise indicating as to what may that position be. Learned counsel, next argued with reference to the first part of the mandatory injunction that the only requirement enjoined upon the judgment-debtor in that context was that he may restore his position as existing before 18th June, 1973 which according to him, was only that of an illegal occupant and contended that, in this situation, there can be no conceivable positive act which, could be done by the judgment-debtor for the restoration of that position. To elaborate his argument, learned counsel referred to para. 2 of his written statement bearing the date 23rd July, 1980 and submitted that it had been clearly averred therein that there never existed any regular allotment in his favour and that he had got only a fictitious entry of his name made in the Demand Register. Thus, the learned counsel submitted that the decree really did not enjoin anything to be done by the petitioners and that the order, dated 9th January, 1983 was not anywise in conflict with the decree and that, at any rate, it being the subject-matter of a separate proceeding for the offence of contempt of Court, should be simply left out of consideration so far as the issue involved in this case is concerned. Learned counsel thus contended that proceedings under rule 32 of Order XXI of the C. P. C. Were really uncalled for and so, at least, as far as the Municipal Committee is concerned because it by itself had no means or authority to act in any way and its so-to-say liability can only be derivative because all its authority vests in the Chairman who is its executive head. He submitted in the alternate that the misdeeds, if any, of its Chairman ought not to have been saddled upon the Municipal Committee whereabout learned District Judge had a clearly discretion vested in him for resorting to one of the two processes and, even if the view taken by the learned District Judge regarding the merits of the case may be assumed, without so conceding, to be correct even then he has acted illegally in being oblivious of the discretion vested in him because the action against the Municipal Committee was, not at all necessary to secure obedience of the decree. Learned counsel submitted on the authority of Dhunda v. The Punjab Province (Now Province of West Pakistan) (1) that the order passed by the learned District Judge is amenable to the revisional jurisdiction of the High Court.
(1) PLD 1960 Lah. 786
3. Learned counsel for the respondent referred to Noor Hussain Shah and others v. Mst. Hussain Bibi
(1) and Bukhau Singh and another v. The District Board Ludhiana (2) to submit that in this case since neither the judgment nor the decree is happily worded, therefore, it is permissible to refer not merely to the relief claimed in the suit but also the case as set up by the parties can be considered for ascertaining the meaning and terms of the decree. Then, inviting reference to para. 1 of the plaint, he submitted that even though the number of shops and the other letails of the construction at the site have not been given, yet, it has been clearly stated that the plaintiff had built shops in accordance with the sanction of the Administrator of the Municipal Committee and, by referring to para. 1 of the written statement he argued that the relevant assertion about the construction of shops had not been specifically denied wherefore this part of his case can be deemed to have been admitted. He also submitted that in its para. 2 there was also a clear admission made that his possession on the site had been terminated. Learned counsel contended that in spite of all the shortcomings in his suit, since it had been decreed, therefore, at least his possession on the site deserved to be restored and execution of the decree was rightly sought by the respondent for this purpose. He also referred to an application filed by the petitioners on 1st March, 1983 which is present at page 53 of the executing Court's file. This application was filed for recall of the warrant for delivery of possession which was issued pursuant to the executing Court's order, dated 28th February, 1983 and pointing to para. 3 thereof, he submitted that therein it has been stated on behalf of the petitioners that the decree, dated 28th September, 1981 had become ineffective because of a new order, dated 9th January, 1983 passed thereafter. On this basis he argued that the categorical statement made therein and also the unmistakable conduct exhibited by petitioner No, 1 in his so-called order of 9th January, 1983 has two-fold implications, firstly that, they undoubtedly constitute contempt and disobedience of the lawful authority of the Court and secondly that they clearly manifest a propensity on his part to be adamant in not obeying the aforesaid decree, so much so that the existence of this decree having been clearly brought home to him on the spot, he proceeded to order and hold that no construction can be allowed and even directed the respondent or his attorney not to make any encroachment. Learned counsel argued that the word 'hold' signifies that he was making a determination subsequent to the decree having been brought to his knowledge. He also argued that the words 'allow' and 'direct', contained the ultimate para. Of his order, indicate that there was a request made to him which he was not willing to uphold, whereas the word 'direct' implied a command towards the desired end and submitted that his failure to obey the decree is too manifest to be dwelt upon. He also argued that the order, dated 9th January, 1983 is not liable to be merely left over for liability in the proceedings relating to contempt of Court. Again, learned counsel laid emphasis on the observation made therein that 'the site is not absolutely suitable to be given on Tehbazari or on any other basis', and submitted that there can be no better proof of his failure to obey the decree.
4. After giving my anxious consideration to the contentions of the learned counsel and perusing the record, I have reached the conclusion that there appears substance in the contention of the learned counsel for
(I) AIR 1927 Lah. 476 (2) AIR 1933 Lab. 41 ' the petitioners that the relevant decree is not open to be so construed as to imply any reference to construction or its demolition because there is nothing on the record to conclude that any construction was ever raised by the respondent or that any one was demolished so much so that it is not possible to make out even that if at all there was any shop or shops what could be their number and nature of construction. Even though learned District Judge appears to have been motivated solely by the considerations of justice and administration of law, yet, he has clearly erred in making assumptions without any material available for the purpose. However, laudible his object may have been, he was not entitled to go against the record. It is unthinkable that if the respondent may have ever raised any construction or one may have been pulled down, then the respondent may not have clearly averred so in his plaint and, the than making only an oblique reference to his position prior to 1973, may not have preferred to lay his cards before the Court.
Since he did not choose to even clarify as to what was his position in 1973 which he wanted to get restored, therefore, I am forced to the conclusion that the idea about claiming to reconstruct dawned upon him only in 1981, after more than 8 years of the order complained about had been passed on 18th June, 1973 and is only an after thought. As such, learned District Judge has acted on no material or evidence on the record to be of view that the respondent had ever raised any construction on the site which it could be the liability of the petitioners to either themselves rebuild or permit to be reconstructed and I am constrained to hold that therein he has acted both fancifully and arbitrarily. Therefore, respectfully following the law laid down by their Lordships in Kanwal Nain and others v. Fateh Khan and others (1) it is held that the impugned order being only fanciful and arbitrary is liable to be set aside.
5. As regards, the order, dated 9th January, 1983 even though the learned counsel for the respondent is right in his submission that the same is not entirely irrelevant for the purposes of this case, yet, the correct position is that it is only inconsequential for this case which does not concern with the mental disposition or propensity of a judgment-debtor towards a binding decree but what is material for its purposes is the obedience thereof which involves the doing of some positive act.
Since it cannot be laid down as a proposition that an unminded judgment-debtor cannot be expected to do a positive act, however unwillingly, for obedience of the decree binding on him, therefore, the question at once arises as to what may the judgment-debtors-petitioners in this case be expected to do to provide a touchstone for holding as to whether or not they have obeyed the decree. Unfortunately the judge who was seized of the suit in 1980 did not perform his duty according to law, which does not expect the Judges to sit over the cases as only mute observers and the provisions of Order VII, rule 11 of the C. P. C. Rather enjoin upon them to see that a proper case is made out which, if it were to suffer an ex parte decree, would suffice for the purpose. The Judges are supposed not to pass consent decree only mechanically and not at all in those cases where the plaint does not disclose a case or where there is infringement of some law involved.
Since the decree in this case does not enjoin upon the judgment-debtors to do any positive act and it is of possible to ascertain from the record of the relevant suit as to what exactly may be the position prior to 18th June, 1973 which the decree
(1) PLD 1983 SC 53 ' holder respondent had in 1980 desired to get restored by means of his suit, therefore, the consent decree secured by him is only futile and is not capable of being enforced under Order XXI, rule 32, C. P. C. Upon this view, even the order, dated 9th January, 1983 passed by petitioner No, 1 looses significance and becomes inconsequential for the purposes of this case.
6. The result of the above discussion is that the revision petition is, accepted and the impugned order, dated 30th May, 1984 passed by the F learned District Judge, Toba Tek Singh, is set aside with costs throughout.
7. Learned District Judge has also sent up a query with reference to my interim order, dated 11th June, 1984 wherein, after mentioning the fact that the office of the Municipal Committee with all its belongings present there was sealed on 3rd June, 1984 under his order impugned herein, he has desired to know the effect of my Mder vis-a-vis the attachment already made. In this context, all need say and reaffirm is that I had suspended the operation of his order and even though I do not see as to why the ordinary meaning of the word 'suspended' may have been difficult to be ascertained or even the legal effect thereof may have been regarded as beyond comprehension, yet, in view of the order passed now, his reference has become infructuous.
8. Since, in consequence of the attachment of the Municipal office, all its civic functions would have come to a stand-still, therefore, in view of the impending public holidays it is necessary that the result of this revision petition be conveyed today, through an express telegram at State expense, to the learned District Judge concerned for immediate necessary action.