SALEEM AKHTAR, J: --This petition seeks leave of the Court to challenge the judgment of the Division Bench of the High Court which confirmed the order of the learned Single Judge whereby for committing breach of the order passed under Order XXXIX, Rules 1 and 2, . C.P.C. The disputed property was attached and the appellant was committed to civil prison for a period of one week.
2. Briefly the facts are that the appellant filed suit against the respondent for specific performance of agreement in respect of plot of land bearing No.SB 36, Block No.13-B, measuring 400 sq. Yds.
Situated in Gulshan Iqbal, KDA Scheme No.24, Karachi. He also filed an application for injunction under Order 39, Rules 1 and 2 C.P.C. On 29-8-1979 while passing an ex parte order of interim injunction that the respondents were restrained from dispossessing the appellant from the plot of land if he was in possession. A notice was issued for 3-9-1979. After service of notice on 15-9-1979 the Court ordered: "both the parties will maintain status quo as obtaining today."
On another application Mr. Zaheer, Advocate, was appointed as Commissioner to inspect the site on 16-9-1979 and to submit the report. The Commissioner submitted his report along with the photographs showing position as it existed on 13-9-1979, the correctness of which was disputed by the learned counsel for the appellant. The Court therefore, with the consent of the parties appointed 'Nazir' of the High Court as Commissioner to take photographs of the construction as they existed on the date of order namely 6-10-1979. After the `Nazir' submitted his report on 10-10-1979 the following order was passed:- "It is clarified that the order of maintaining status quo passed on 15-9-1979 will apply not only to the question of possession and transfer but also to construction."
Again on 9-8-1980 while hearing the injunction application it was finally ordered as follows:- "I would accordingly order the parties to maintain status quo till the final disposal of the suit. I may clarify that the parties shall maintain the property as it existed today. None of them will be entitled to make any change in its character or status in any manner."
On 3rd February, 1985, the respondent filed an application under Order 39, Rule 2(3), C.P.C. Alleging that the appellant in violation of the orders passed by the Court started raising `Pucca' construction on the plot in question and has, thus, violated the order, dated 9-8-1980 and is liable to action under Order 39, Rule 2(3), C.P.C. On 4-2-1985 the High Court issued notice to the appellant and appointed Deputy Registrar (Judicial) as Commissioner to inspect the site after informing the Advocate for the plaintiff on telephone. He v s directed to submit his report about the construction carried out at the site in dispute and he was also permitted to engage photographer. On 6-2-1985 the report of the Commissioner, was placed before the Court along with the photographs taken at the site. At the request of Advocate for the appellant the hearing was adjourned. The appellant filed counter-affidavit and stated as follows:- "That I am in possession of the property in dispute and my wooden articles are lying thereon. In order to protect it from rain and water plywood and wooden legs are used. This was also not done by me but my employees and workers sometime in August, 1983, in my absence when I was detained under MLO 78, and remained under detention for two months. I was detained on the complaint of the defendant No.2, who applied to Deputy Martial Law Administrator for possession of the plot in dispute. The defendant's men in my absence also attempted to take forcibly possession which was resisted by my employees. In order to avoid such a situation doors were fixed by my employees and workers. This was done bona fidcly to protect the possession and damage being caused to the articles. I have evidence available to this effect and am prepared to adduce the same.
That there is no RCC construction or pucca construction. The walls are not of plaintiff, but of adjoining plots."
The learned Single Judge after hearing the Advocates for the parties passed the order in which he recounted the alleged breach which was ascertained with the help of the reports of the Commissioners and photographs which were available on record.
After discussing the facts and case-law cited at the Bar the order was passed, operative part of which reads as follows:- "In the circumstances particularly in view of the threatened action and preparations of the plaintiff to raise more and more construction it future, it is necessary to arrest the mischief at this stage. I would no order demolition of the construction, but I feel that it would be necessary to pass the following orders:-
(1) That the property in suit should be attached and the control of the property should be taken by the Nazir of this Court. It should be sealed in the first instance after preparing an inventory of the good: lying in the unauthorisedly constructed showrooms and godowns it presence of the parties.
The plaintiff would be at liberty to remove and articles from the premises if he so desires.
(2) The plaintiff should be committed to civil prison for a period of one week to ensure that no further violations are committed and he doe: not enjoy an advantageous position over the defendants and the order of the Court for keeping status quo on the property is honoured as far as possible even after the construction has been raised.
With these observations this application is disposed of."
The petitioner filed a High Court Appeal before a Division Bench which was dismissed by the impugned judgment dated 21-10-1985 in limine after hearing the Advocates for both the parties.
3. From the record it transpires that on 19-10-1985 the appellant submitted an apology before the learned Single Judge in the suit proceedings but the honourable Judge refused to accept by order, dated 28-10-1985. Leave to appeal was granted to consider whether Order passed under order 39, Rule 2(3), C.P.C. Was beyond the scope of sub-rule 2(3).
4. Mr. Fakhruddin G. Ebrahim, the learned Advocate for the petitioner, has vehemently argued that in the facts and circumstances of the case apology ought to have been accepted by the learned Single Judge. He further submitted that even now the appellant is tendering unconditional apology to this Court and the same may be accepted.
5. From the statement -of facts on record it is clear that when the application under Order 39, Rule 2(3) was filed the appellant chose to contest and filed a counter-affidavit justifying the construction raised during the currency of the order of status quo. He did not show any repentance or offered any apology. Nor he stated that he was prepared to demolish the structure. The application was contested to the end and after the order, dated 10-10-1985 was passed he filed the High Court appeal and even at that time he did not submit an apology. He had applied for stay of the order which was granted by the Division Bench on 17-10-1985. Then wisdom dawned upon him and on 19-10-1985 an application was submitted before the learned Single Judge praying as follows:- "It is prayed that the plaintiff throws himself at the mercy of this honourable Court, and craves for recalling the order, dated 10-10-1985 in view of the circumstances mentioned in the accompanying affidavit."
In the affidavit the appellant recounted the facts leading to the passing of the order, filing of the appeal and grant of stay by the Division Bench and stated as follows:- "However, their Lordships were pleased to observe that instead of tendering an unconditional apologv before the Division Bench of this Court by taking the same as one of the grounds of the said High Court Appeal, I should appear before this honourable Court i.e. Mr. Justice Ibadat Yar Khan and should tender my apology and crave honourable Court.
That 'l say that I undertake before this hon'ble Court to comply with any order passed henceforth and am sorry for my earlier acts and, therefore, I would urge that this hon'ble Court may be pleased to recall the orders passed on 10-10-1985 in terms of an expression of mercy upon me."
The application was rejected by an exhaustive order, dated 28-10-1985 after the Division Bench had dismissed the appeal on.21-10-1985.
6. From the aforestated quoted portion of the affidavit it seems that the apology before the learned Single Judge was filed only in view of the observation made by the learned Judges of the Division Bench. This also indicates the absence of voluntariness and intentional subjugation before the learned Single Judge. Such attitude can hardly justify and prove the genuineness and sincerity in offering the apology. At no stage the appellant had sincerely and duly offered an apology by way of repentance as was indicated in the judgments referred by the learned counsel for the appellant.
7. In contempt matters apology should be offered immediately and as soon as possible. An apology after contesting the case and justifying the offending act and having been held guilty and convicted, does not demonstrate repentance and sincerity. Such apology would not necessarily purge the contempt. An apology does not provide the contemner with an absolute excuse for committing contempt by violating the order of the Court and he cannot claim discharge as a matter of right. Reference can be made to Arif Nizami : in re PLD 1971 SC 72. It may, depending on the facts, be taken into consideration in mitigating the offence of contempt. The factors to be considered in accepting apology have been enumerated in Yousuf Ali Khan v. The State PLD 1971 SC
508. The appellant's conduct seems to be more obstinate than apologetic, otherwise on the very first day he would have tendered the apology and perhaps the learned Single Judge may have accepted it. Mr. Nizam Ahmed, the learned counsel for the respondent, has pointed out that the apology at appellate stage was rightly rejected by the learned Single Judge.
8. Mr. Fakhruddin G.Ebrahim, the learned counsel for the appellant, has referred to Raja Munawwar and others v. The State 1990 SCMR 215, where the police officers who had beaten the bailiff and detained him for six hours were convicted under section 3 of the Contempt of Court Act and sentenced to three months' 00.1. By a Di.Ision Bench of the High Court. In appeal before the Supreme Court the appellants tendered unconditional apology and threw themselves at. The mercy of the Court. `The appellants themselves did the same'. The Court accepted the apology with the following observation:- "We were not inclined to accept the apology but for the fact that the appellants have realized that no one is above law irrespective of his status, office and position in life and that even the time factor cannot defeat the due process of law. They were really ashamed of what they did. They felt sorry. They bowed their heads with shame. Their unconditional apology was genuine and sincere."
In the present case the apology was tendered in this Court by the Advocate for the appellant orally and unlike in the case of Raja Munawwar and others (supra), the appellant did not do the same, nor threw himself at the mercy of the Court, nor felt ashamed of the breach of the order committed by him. In the referred case as apology was accepted by the Supreme Court, the entire facts were not discussed and it is not clear whether the appellants had contested the case before the High Court and whether apology was tendered there before the order wa:- passed. Where the contemner justifies the act, contests the action initiated against him and on being unsuccessful files apology after the conviction unless some special reasons are made out, the Court will be slow to accept the apology at the late stage. No apology of any nature was filed in writing by the appellant in this Court. It was orally mentioned by the learned counsel for the appellant which we are not prepared to accept.
9. The learned counsel then contended that at least opportunity should have been given to the appellant to rectify the mistakes and if he would have not complied with the order then action may have been considered against him. Reference was made to Bakhtawar etc. v. Amin etc. 1980 SCMR 89 where the petitioner in spite of undertaking had not restored the watercourse and when this violation was brought to the notice of the Court on his subsequent further undertaking he was again given a chance to comply with the order. However, due to non-compliance he was ordered to be detained under Order 39, Rule 2(3), C.P.C., the petition for leave to appeal was dismissed. The Darned counsel, however, pointed out that the Court had given two chances for complying with the undertaking but in the present case action was taken straightaway on an application by the respondent. The facts of that case are completely distinguishable. There the petitioner had given an additional undertaking and also taken the plea that being an illiterate man he could not understand the contents of the order passed. In the present case the appellant has justified his action and has never come forward to give an undertaking to demolish the offending construction raised by him after the order of status quo was passed.
10. The learned counsel also referred to Muhammad Salim v. Mohiuddin 1968 SCMR 557. In this case the petitioner was ordered to be detained in civil jail for six weeks for deliberate contravention of undertaking and the order of status quo passed by the Court. On appreciation of evidence the order was maintained by the Supreme Court and petition for leave to appeal was dismissed. This case does not improve the appellant's case any further. The learned counsel then referred to Hatim v. Shah Din PLD 1952 Lah. 77, where it wis observed that any proceedings under Order 39, Rules 2 and 3, C.P.C. Which are of a criminal nature and although no precise procedure has been laid down the Court should proceed in the same manner as criminal trial and 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 question or issues which, embody all the elements of a charge under the criminal jurisdiction. According to the learned counsel such procedure was not adopted by the learned Single Judge. In thi; regard we will refer to Ch. Zahoor Ellahi v. Mr. Zulfikar Ali Bhutto PLD 1975 SC 383, where at page 394 it was observed: "We have given our anxious consideration to the arguments advanced by the learned counsel. We cannot, in the first place, agree with him that the nature of a proceeding for committal for contempt of Court partakes necessarily of the nature of a criminal proceeding as this Court has already had occasion to consider this aspect of the matter and to take a contrary view in the case of Saadat Khialy v. State PLD 1962 SC 457. It will be enough to point out that this Court has held that contempt of Court proceedings, were sui generic in nature ', partaking of some of the elements of both civil and criminal proceedings but really constituting neither, that there was no fixed formula for contempt proceedings and that technical accuracies were not required, nor were we bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings; but nevertheless, being Court of the Justice, we would normally follow the, fundamental rules for the ascertainment of the truth by giving the fullest opportunity to the person accused of defending himself and of putting forward his case with as much, if not more, fairness than we would in an ordinary trial before us."
11. The learned counsel for the appellant while referring to the closing part of the impugned order of the learned Single Judge, dated 5-10-1985 contended that the object of proceedings under Order 39, Rule 2(3), C.P.C. Is to punish the person who has violated the order of the Court. It is not in the nature of a preventive action. He further contended that from this part of the order, it seems that the learned Single Judge has exercised the power for purpose of restraining the appellant from committing further breach in the matter. It is true that before the operative part of the order by which punishment has been imposed and attachment has been ordered it has been stated that: "in the circumstances particularly in view of the threatened action and preparation of plaintiff to raise more and more construction in future it is necessary to arrest the mischief at this stage."
Prior to this observation the learned Judge had recounted all the events leading to the breach committed by the appellant. Apprehension was also shown that he will continue to commit the breach and raise construction which would be in violation of the order. Such action should be stopped and party should be restrained with a view to obey the order of the Court and also punishment should be inflicted on such breach. The order was never intended to be passed for preventive purposes. It has clearly been passed for committing breach of the order. This contention also cannot be accepted. The learned counsel then contended that the appellant was detained under Martial Law Order 78 and remained under detention for two months. It was pleaded by the appellant that the construction was raised in his absence by his servants and agents. The photographs taken by the Commissioner appointed by the Court clearl; show nature of the construction which may have cost a huge amount. Such construction cannot be made without the consent of the owner and moreover as the order of status quo was within the knowledge of the appellant merely because it was raised by his employees or agent cannot be a defence for committing breach of that order. It is pertinent to note that none of the employees or agent of the appellant had filed any affidavit in support of the appellant's plea. The learned Single Judge as well as the learned Bench in appeal have rightly observed that the construction raised could not be made by the employees at their own expense and without approval of the appellant. It was further observed that the appellant has not shown what action he had taken after coming out from the jail for demolition of the offending construction. In fact he has started utilizing it and as the respondent had alleged, opened a showroom. These facts clearly establish that the plea taken by the appellant is not sustainable. '
12. In these circumstances we dismiss the appeal with the modification that the appellant is sentenced till the rising of the Court on the condition that within 10 days from today he will remove the entire offending structure which was raised after the order of status quo had been passed. If he fails to remove the said structure he will have to serve the sentence as passed by the learned Single Judge.