By invoking the revisional jurisdiction of this Court, Ghulam Sarwar the petitioner herein has called into question the order of the learned Civil Judge, Mansehra dated 7-3-1989 whereby the petitioner was convicted and sentenced to undergo two months S.I. For committing contempt of Court and respondent No.2 was ordered to deposit the compensation received by him within 15 days and which order was maintained by the learned District Judge, Mansehra vide his impugned order dated 29-11-1990.
2.Briefly stated the facts giving rise to this petition are that Ghulam Rabbani, respondent No.l herein, instituted a civil suit seeking a declaration that he is a co-sharer to the extent of 8/9th share in the land bearing Khasra No.140 and measuring 46 Kanals 3 Marlas situated in the revenue estate of Village Khushala on the ground that Mufti Mohammad ldris, who is a co-- sharer to the extent of 1/9th share in the unpartitioned but jointly owned land, is not entitled to sell the land to the petitioner or to the District Education Officer respondent No.3 herein; by giving out a Tatima without the consent of plaintiff-respondent No.l herein. Seeking the second relief in the suit was a prayer for the issuance of permanent injunction. An application for issuance of temporary injunction was also submitted along with the plaint.
3.An ad interim order of maintaining status quo was, however, issued on 15-6-1988. The petitioner appeared not in person but through his Advocate Mr. Mohammad Asif on 29-6-1988 on which date the proceedings were adjourned for want of service on the rest of the defendants. It was on 16-7- 1988 that respondent No.2 also appeared through Mr. Mohammad Asif Advocate and the Collector.
Respondent No.3 herein applied for the vacation of the status qua order. Due to vacation of the Presiding Officer, the case was taken up next on 13-9-1988. The matter lingered on till 18-12-1988 when after hearing the arguments on the application while the learned Trial Court allowed the application in terms of refraining respondent No.2 herein from alienating his land or receiving compensation therefor, the petitioner as well as respondent No.3 were ordered not to take possession of the suit land and respondent No.4 was ordered not to pay any compensation.
4. It was vide the same order No.i3 of the even date that the Trial Court took cognizance of the matter to the effect that the petitioner was issued a notice under Order 39, rule 2, C.P.C. And, finally on 7-3-1989, found the petitioner wilfully and intentionally violating the orders of the Court and committed a contempt, of Court. Consequently he was convicted and awarded two months, S.I.
Respondent No.2, however, was ordered to deposit the compensation amount received by him in the Court within 15 days of the order.
5. The petitioner preferred an appeal against the aforesaid order before the learned District Judge, Mansehra who rejected the same vide his order dated 29-11-1990, but suspended the sentence under section 151, C.P.C. On the ground that the petitioner intended to approach this Court. Hence the instant petition.
6. Another petition Civil Revision No.124 of 1990 is filed by Mufti Mohammad Idris, the respondent No.2 herein. Since both these petitions arise out of the same case I would dispose them of by this single order.
7. It is contended on behalf of the petitioner that the' impugned orders are without jurisdiction and of no legal effect and cannot be sustained in that the very suit was not competent and any order arising therefrom will have no legal entity. In the wake of this, the learned counsel submitted that under Order 1, Rule 3, C.P,C. Only juristic persons can be sued as defendants and neither the Head Master, which office the petitioner was then holding, nor D.E.O. (Males) Department of Education District Mansehra, defendants Nos.2 and 3 respectively in the plaint could be sued as visualized under Order 1, Rule 3 ibid. In such a situation in a suit not maintainable in its. Present form, any order, interlocutory or final, if passed, shall be without jurisdiction. He, therefore, submitted that on parity of reasoning the order under Order 39, Rule 2 can only be issued against a named person as equity acts in personam. In this regard he finally urged that the notice issued under Order 39, Rule 2 by a Court, being without jurisdiction, is as such void ab initio and of no legal effect.
8. Supplementing his point of lack of jurisdiction, the learned counsel contended that notification under section 4 of the Land Acquisition Act having been issued on 20-3-1988, no suit could be instituted with-respect to any action done under the Act for the reason that the Land Acquisition Act while itself creates rights, it correspondingly provides remedies and the Civil Courts are not competent to interfere with the acquisition proceedings. Learned counsel for the petitioner also alleged non-compliance of the provision of the section 52 of the Land Acquisition Act which would render the impugned orders a nullity.
9. He also contended with measure of vehemence that Order 39, Rule 2 is punitive provision of law and although no procedure is laid down to enforce it yet the procedure prescribed by the Code of Criminal Procedure is to be followed and, since the learned Trial Court has failed to do so, both the impugned orders are untenable.
10. On factual premises the learned counsel for the petitioner argued that it was even before the institution of the suit on 15-6-1988 that in response to the notification under section 4 of the Land Acquisition Act issued on 20-3-1988 respondent No.2 had already entered into an agreement with the petitioner to transfer his share of the land in the acquired Khasra number at the rate of Rs.
25,000 per Kanal compensation as is evident from a copy of duly registered deed of the even date, as a consequence whereof a mutation No.1177 was entered and a Tatima was prepared. Therefore, it cannot be said that it was violative of the ad interim injunction issued against the petitioner and the respondent No.2, the learned counsel concluded.
11. As against this it is submitted on behalf of the respondent No.l that the petitioner thas admitted in his evidence recorded during the contempt proceedings that he had written the letter dated 15- 8-1988 addressed to Acquisition Collector Mansehra, which shows that the possession of the suit land duly demarcated by Patwari Halqa has been taken over and he had asked the Acquisition Collector to make the payment of compensation to respondent No.2. It is thus argued that having appeared through his counsel on 16-7-1988; he was presumed to have acquired the knowledge of the order of status quo. In this regard the learned counsel stated that his plea of ignorance was rightly repelled by the learned trial Court while convicting him for contempt of Court vide the impugned order. It was also submitted that the status quo order has been extended from date to date in the presence of their learned counsel and as such they cannot be absolved of the liability of disobedience of the said order. Similarly, the payment of compensation was made to the respondent No.2 on 8-10-1988 which would show that the whole payment of the amount and the delivery of possession was violative of the order passed under Rule 2 of Order 39, C.P.C. He, therefore, urged that the impugned orders having been passed by the competent Courts of law after taking into consideration all the legal and factual aspects of the case are lawful and cannot be questioned in the revisional jurisdiction of this Court.
12. Syed Abdus Salam Sarwar, Advocate who appeared on behalf of respondent No.2 in the instant petition, and on behalf of the petitioner in the connected revision, adopted the arguments of the learned counsel for the petitioner.
13. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
14. A reference to the record---reveals that the petitioner and respondent N0.3 were sued as per plaint filed by respondent No.l not by name but in their official capacities. Similarly, the learned trial Court passed an ad interim order of status quo on 15-6-1988 and issued the same against the defendant petitioner and the defendant-respondent No.3 in their official designations. It is an uncontroverted proposition of law that a person with legal entity can only be' sued as defendant in terms of Order 1, rule 3, C.P.C. Inasmuch as when no Statute provides that a public person holding a public office can be sued with his official designation or what is called in legal parlance "corporate sole", the suit shall be bad in form and not maintainable. In a case of Indian jurisdiction Manahem.
S.Yeshoova v. Union of India (AIR 1960 Bombay 197) it was held that:-- "the Collector of Customs. Is not a legal entity but merely an office occupied by several persons from time to time as appointed by the authorities: On prima facie grounds a suit cannot b.: filed against any one who is not a legal entity."
In another case reported as AIR 1962 Calcutta 283 the rule laid down is:-- "Where a Statute provides that a public officer shall be corporation sole and can be sued in his corporate name, the officer may be sued in that name. In the absence of such provision, the ordinary law applicable to suits must apply. There is no provision, either in the Calcutta Municipal Act, 1951 or in any other Statute that the person occupying the offices of the Commissioner, or the Chief Executive Officer and of the City Architect are corporation soles or that they or any of them may sue or be sued by their official titles. From time to time different persons occupy those offices.
Therefore, under Order. VII, rule 1(c), if the plaintiff intends to sue the persons who for the time being occupy those offices he must implead those persons by their individual names. In the eye of the law the so-called Chief Executive Officer and City Architect, without the individual names of the persons occupying those posts given in the suit title, are not really on the record of the case."
Similarly in the case reported as PLD 1971 Kar. 525, the view expressed in the aforesaid authorities was adopted and duly endorsed.
15. The learned counsel for the respondent could not offer any contra argument on this score and I feel that neither he could advance any against the proposition so consistently adhered to by the superior Courts. I have, therefore, no hesitation in holding that the suit of the respondent brought against the Official designations was bad in form and could not be entertained by the learned trial Court.
16. The controversy thus seems to have narrowed down to the effect ac to whether an order could be passed in any ancillary matter connected with or arising from a suit which is not maintainable in law. The answer cannot but be in negative. In fact I will go to the extent that in such a situation the petitioner could not be proceeded against for the contempt of Court proceedings, for, in my considered opinion, under Order 39, rule 1, C.P.C., a temporary injunction could neither be issued to, nor in case of its alleged violation, an order could be passed against a person in his official capacity unless he has been specifically named as such. In the case of Khawaja Mohammad Sharif v. Sahibcada Abdul Baqi (PLD 1954 Peshawar 72),_ it is laid down:-- "So far as the order under Order XXIX, Rule 2, C.P.C. Against the Assistant Political Officer is concerned, I think that legally it cannot be passed at all. An injunction can only be issued against a named person. Equity acts in personam, and if an injunction has got to be addressed to any person, then it has to be addressed to that person by name. The Asstt. Political Officer is not an individual. It is merely a convenient nomenclature to describe the person, who is one of the officers, who manages the affairs of an Agency on behalf of the Agent to the Governor-General, and is directly responsible for the administration of the Agency. He has no legal existence at all."
And it is held:-- "I am consequently of the opinion that no interim or temporary injunction can be granted against the Assistant Political Officer."
17. Viewed in the perspective of the foregoing discourse, I am clear in my mind that besides the suit by itself being not maintainable, and the learned trial Court as such having no jurisdiction, the injunction exconsequenti issued by the learned Civil Judge, Mansehra had no binding effect on the petitioner nor for that matter on respondent No.2. I sought further strength from a decision of Full Bench of Lahore High Court (PLD 1918 Lahore 8). In this case the High Court, in exercise of its powers under section 115, C.P.C., had stayed the proceedings before the Election Commission and contempt proceedings were initiated for disobedience of the order of the High Court. The majority of the learned Judges of. The Bench, however, held that the order staying the proceedings before the Commission, being without jurisdiction, was void and that being so, no contempt of High Court was committed by disobeying it.
18. There is yet another aspect which needs to be attended to in that the penalties involved in contempt proceedings are of a criminal nature and accordingly have to be conducted in as nearly with the mode prescribed for dispensing justice in a criminal case as possible failing which, the order of conviction and sentence shall be regarded as untenable. It is held in case of Hatim v. Shah Nazir (PLD 1952 Lahore 77):-- "It is true that the present case lies in civil jurisdiction but penalties involved are clearly of a criminal nature, and, notwithstanding that no procedure has been laid down, it is expected that any Court which, feels called upon to impose these penalties should proceed as nearly as possible in the same manner as a Criminal Court would proceed; in other words, that at the earliest opportunity, when it has formed the opinion that facts exist which may require the imposition of the penalties, the Court shall put the person at fault by framing a question or an issue which should embody all the elements of a charge under the criminal jurisdiction. The facts should be briefly stated, as they are alleged to stand against the defaulter, and there should be a precise reference to the law under which the Court proposes to punish him, unless he shows cause against such punishment:'
19. A perusal of the impugned order of the learned trial Court reveals that it is not in accordance with the afore-quoted principle of law and as such suffers from such infirmities as cannot be cured in any manner. In this context of the matter. It is not possible for me to uphold the impugned orders of conviction and sentencing the petitioner. .
20. Resultantly, I allow this petition, set aside the impugned orders. Of both the learned lower Courts. The petitioner stands acquitted. He is on bail and is discharged of the liability of the bond.
21. Similarly I allow the Revision Petition No.124/90 and set aside the impugned orders of the learned Civil Judge and the learned Addl. District Judge, Mansehra in so far as concerns the order directing the petitioner to return the compensation amount, he has received. In the circumstances of the case, the parties are directed to bear their own costs.