According to the learned counsel appearing for Jamshed Ali Khan Mirza, respondent No. 1, his brother M.A. Aziz Khan filed a suit saying that Housing and Physical Planning Authorities, Sargodha could not issue a title deed in favour of respondent No. 1. In this suit, an order of status quo was passed by the learned trial Court on 18-12-1977. According to the allegation of the then plaintiff notwithstanding the service and communication of the stay order, the Deputy Director, Housing and Physical Planning, Sargodha issued on 27-12-1977 the title deed in favour of respondent No. 1.
The plaintiff M.A. Aziz Khan filed an application for contempt bearing Criminal Original No. 7/C of 1978 against the Deputy Director, Housing and Physical Planning, Jamshed Ali Khan, respondent No. 1 and two clerks of the office of the Deputy Director. When this application came up for hearing, it was observed that "respondent No. 4 (Deputy Director) having been informed of the order of the Court should have refrained himself from intermeddling in the matter and if he had any intention of taking any action should have applied to the Court and obtained an order or clarification of the earlier order. However, his issuance of title deed during the pendency of the civil" suit is of no effect and it is subject to the result of the suit as the law is. The petitioner's possession admittedly has not been interfered with. In all the circumstances of the case, no action is called for under the Contempt of Court Act and this application is disposed of subject to the above observations." This is vide order, dated 22-1-1978. Now, in this application Jamshed Ali Khan Mirza, respondent No. 1's counsel has contended that the status quo order passed on 18-12-1977 was not communicated either to respondent No. 1 (Jamshed Ali Khan) or to the Deputy Director `before the former was given the title deed on 27-12-1977. Therefore, the observations made in the order, dated 21-1-1978 quoted above, may "be reviewed and true facts as mentioned by the petitioner-respondent may very kindly be incorporated therein or any other order as may deem fit to this Hon'ble Court be passed and justice be done to the petitioner --respondent".
2. Learned counsel for the petitioner has vehemently contended that a stay order issued under Order XXXIX, rule 1, C.P.C. Operates only when it is communicated or intimated. It is otherwise when an order has been passed under Order XLI, rule 5, which becomes operative the moment that is made notwithstanding non-service on the other side. He has relied on Karamat Ali and others v.
Raja and others PLD 1949 Lah. 100, Syed Nazir Ahmad v. Syed Muhammad Saeed and another PLD 1955 Lah. 34, Abdul Rashid Khan and 2 others v. Mst Nasim Akhtar 1974 SCMR 509, Messrs Hakimuddin Harmushi & Sons v. Messrs Ghafoor Textile Mills PLD 1978 Kar. 152.
3. In the judgments quoted by the learned counsel for the petitioner the facts were that the stay order was issued by the appellate Court under Order XLI, rule 5. C.P.C. Nowhere in these judgments it was laid down that a status quo order passed by a civil Court will not be operative when it was made until its communication to the defendants. As regards the case PLD 1978 Kar. 152, it was observed therein that'' "I am clearly of the opinion that the Court which entertains an application under section 33 has the power to order stay of the proceedings before the arbitrator and such an order would partake of the nature of a stay A as commonly understood and as distinguished from an order of injunction. The nature and incidents of an order of stay as understood in our Judicial system is that it is addressed and binds a subordinate Court or Tribunal. Whereas an injunction is essentially directed against and enjoins a party to the proceeding from doing or from omitting to do certain acts. The former binds the subordinate Court or Tribunal from proceeding further in a pending proceeding or from executing an order passed by itself. In the latter case the effect of injunction is to bind the parties. This essential distinction has assumed great importance in relation to the operation of the two types of orders. The judicial consensus holds that an order of stay takes effect immediately on being passed even if it is not brought to the notice of the subordinate Court or Tribunal. Where as an injunction order becomes operative upon being served on the party against which it is directed".
From this quotation it would be quite clear that a stay order will take effect immediately on being passed even if it is not brought to the notice of the subordinate Court or Tribunal. In the case in hand, even if the contention of the learned counsel for the petitioner be correct that the Deputy Director was not informed of the stay order, nonetheless the order will have its effect from the moment it was made. Non-intimation would only have the effect that the tribunal or the person against whom the order of status quo was passed, will not be punished for its violation. And this is so because a person is not normally punishable when he has no mens rea. But this does not mean that if a Court passes an order that does not become operative the moment it is made. An example will suffice. If a person files a suit that his house is going to be pulled down by the defendant and a Court grants an order of status quo, it cannot be said that the status quo order would not be operative the moment it was made and the defendant would be free to pull down until that is communicated to him. Communication may be delayed by the ministerial staff of the Court or avoided by the defendant. The order becomes operative the moment it is made. For its violation, the wrongdoer may not be punished if he was not aware of the order. The distinction sought to be drawn by the learned counsel for the petitioner under Order XXXIX, rule 1 and Order XLI rule 5, C . P. C . Is too subtle and specious substituting substance with imagacy.
4. In view of what has been stated above, it is quite clear that when M.A. Aziz Khan, the petitioner brought an application for initiating action under the Contempt of Courts Act against Jamshed Ali Khan, the present applicant and others on the ground that the latter had been informed of the status quo order and nonetheless they had issued title deed contrary thereto, it was observed that the title deed need not have been issued after the issuance of the status quo order and that will be subject to the result of the civil suit. It was not deemed necessary to initiate criminal proceedings against the applicant or the officer and his clerks who had issued the title deed.
For the reasons given above, the present application to review the previous order is misconceived.
It is accordingly dismissed.