This order will dispose of Criminal Original No.] 12-C/80 whereby the petitioner wishes this Court to proceed against respondent, Mr. Mahmood Khalid, who is a Civil Judge, under Article 204 of the Constitution of Islamic. Republic of Pakistan 1973 and Section 3 of the Contempt of Court Act, 1976.
2. The circumstances in which this petition has been filed are that an application under Order 33 of the Code of Civil Procedure was filed by the petitioner for permission to sue as a pauper for recovery of Rs.8,36,981. This petition was entrusted to the respondent who was serving as Civil Judge, 1st Class. Lahore, who dismissed it on 23rd of November, 1978 after holding that it was barred by limitation under Article 22 of the Limitation Act, 1908. This order was challenged by the petitioner in Civil Revision 212 of 1979 which was accepted by a learn, d Single Judge of this Court on 10th of July, 1979 and permission for sue in forma pauperis was granted. In post remand proceedings, the plaint was rejected under Order 7 rule 11 by the respondent, on 10th of July, 1979 who held the suit to be barred by time under Article 22 of the Limitation Act. The grievance of the petitioner in the present petition is that this Court had already held the suit to be within time in its judgment, dated 10th of July, 1979 and by holding it to be barred by time, the respondent wilfully disobeyed and flouted the order of this Court and as such committed contempt of this Court.
3. In order to complete the narration of facts it may be mentioned that against the order of rejection of plaint, the petitioner had filed R.F.A. No.42 of 1980 which was accepted by Division Bench of this Court on 11-10-1980 and the suit was remanded for its trail in accordance with law. It further appears that thereafter the suit was dismissed by Mr. Sher Zaheer Ahmad Khan, Civil Judge 1st Class, Lahore, on merits. A Regular First Appeal against this judgment was also rejected by this Court.
4. The question which falls for determination in the present case, is as to whether the respondent by rejecting the plaint under Order 7 rule 11, C.P.C. On 11th of December, 1979 has acted in defiance of the order passed by this Court on 10th of July, 1979 in Civil Revision No.212 of 1979. 1n the parawise comments filed by the respondent he has stated that he construed the order, dated 7th of October, 1979 of this Court as not having finally decided the question of limitation especially in view of the fact that the Civil Revision was directed against the rejection of application to sue as a pauper.
5. I have heard Mr. Tariq Masood who has appeared for the petitioner and Haji Sh. Ghias Muhammad, Advocate for the respondent. From a perusal of the order passed by this Court in Civil Revision No.212/79 it is evident that the matter in controversy before this Court was as to whether or not the application for permission to sue as pauper had been rejected in accordance with law by the trial Court. The Civil Judge had while dismissing the said application, held it to be barred by time under Article 22 of the Limitation Act. This Court while setting aside this order relied upon a judgment of the Supreme Court in Kohinoor Industries Ltd. v. Abdul Majid Butt 1970 SCM R 77 wherein it was observed that where it is doubtful whether the case is covered by one Article of the Limitation Act and the other, the application to sue in forma pauperis cannot be disallowed In para. 5 of the judgment of this Court, it was observed that in these circumstances, the matter is covered by the principle laid down in the Supreme Court case that where it is doubtful as to which Article of the Limitation Act would apply, the Court should not disallow the application to sue in forma pauperis."
The operative portion of the order reads as under:- "I, therefore, allow this petition with costs, set aside the orders of the learned trial Court and grant the application to sue in forma pauperis. The learned trial Court shall register the suit and proceed with it in accordance with law."
From the perusal of the above, it is obvious that the question of limitation was not finally decided by this Court but the revision was accepted on the ground that the question being doubtful, the application for forma pauperis should have been granted. This conclusion finds support from the fact that while setting aside the order of rejection of plaint passed by the respondent, subsequently, the Division Bench of this Court in its judgment. Dated 11th of October, 1980 observed that the provisions of Order 7 rule 11 were not applicable and limitation was a question of law arising out of facts to be placed on record, and could not be decided without being specifically raised in the pleading and an issue Framed in that behalf. It is thus obvious that even the Division Bench did not consider that the question of limitation stood foreclosed by the decision of this Court in Civil Revision No.212 of 1979.
6. Be that as it may, it is well-settled that proceedings in the nature of contempt can only be taken if it is shown that the contemner has wilfully disobeyed or disregarded same order of the Court. As observed by the Supreme Court in S.M. Yousuf v. S.K. Rahim and others PLD 1969 SC 77 the jurisdiction of the superior Courts to take action for contempt of their own authority which undoubtedly belongs to them should be jealously guarded but sparingly exercised. It was further observed that "in proceedings for contempt where the conduct of a person who has apparently defied the orders of the Court leaves room for doubt with regard to his intention and a belief is possible that he has acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him." Consequently even if the view taken by the Civil Judge was based upon wrong interpretation of the order of this Court, it r would not be a ground for holding him to be in contempt unless it is shown that he acted wilfully or that the view taken by him was perverse and arbitrary and it could lead to an inference of contumacious and wilful conduct on his part. In the, present case I have not been persuaded to hold that by rejecting the plaint, the respondent acted in such a manner. In Muhammad Nasim Ahmed Khan v. Central Board of Revenue and another 1975 SCM R 505 it was observed that whether the case, at worst, was one of difference of opinion as to the interpretation of judgment of the Court, the respondent could not be said to have been guilty of any contumacious or deliberate disregard of the judgment.
7. The learned counsel for the petitioner has relied upon Abdul Hayee Khan v. The State and another PLD 1958 SC 161, Nisar Ahmad Khawaja v. Muhammad Usman Muhammad Khan Wasan 1980 SCMR 72 3. Malik Amanat All v. S.H.O. Police Station of Shah Gharib Shakargarh 1957 PCr.LJ 229 and The State v. Atta Muhammad Zafar (Magistrate) 1985 PCr.LJ 2810. These precedents have no applicability to the present case at all.
8. In this view of the matter, this Criminal Original is dismissed and the notice issued to the respondent is discharged.
S.A./N-246/L