' This is an application under Order 39, Rule 2(3) read with section 151, C.P.C. And sections 3 and 4 of the Contempt of Court Act, 1976. It has been prayed inter alia that the property of the defendant No, 1 included Plot No, 27, Sheet No,SB No,5, Saddar Bazar and the building/project constructed thereon (hereinafter mentioned as a "project") be attached. The construction carried on and being carried on be demolished, all the concerned directors/officers of the defendant No, 1 be detained in prison for disobedience of the order of this Court dated 7-5-1995. The case set out by the plaintiff/applicant is that the plaintiffs are owners of Plot No, 26/9, Sheet No SB-5, Saddar Bazar, Karachi, and the plot structure raised thereon popularly known as Oosman ChambeRs, The defendant No, 1 are the owners of the 'adjacent plot No, 27 (project) and are raising construction on the aforesaid plot in violation of the requirement of law and the building plan. The plaintiffs' easement rights are being affected through such illegal construction. The plaintiffs filed this suit praying for several reliefs in the form of declaration and injunction and also submitted Civil Miscellaneous Application No, 2653 of 1995 seeking inter alia to restrain the defendants from affecting any further construction during pendency of the suit.
2. This Court issued notice of the application to the defendants and by order dated 7-5-1995 directed that the defendants shall not raise any further construction within distance of 10 feet from the plaintiffs' building. According to Mr. Munib Akhtar Khan the order was duly served on the defendants, who have also been appearing in the Court to contest the suit and the application for interim relief. However, in blantant-violation of the interim order passed by this Court, the defendants resumed construction actively during the night between 16th and 17th April, 1997. The plaintiffs further aver the workers involved in the construction activities were told that such constructions was in violation of the order of this Court. Nevertheless, one Maqbool Ellahi, a Director of the defendant No, 1 explicitly directed them to carry on with such work and used threatening and abusive language. Hence this application.
3. In support of this application, Mr. Munib Akhtar contended that any person to whom in interim order of the Court was directed, was required to comply with its terms irrespective of its legality or right of the defendants to call it in question in proper proceedings, he relied upon inter alia a judgment of Lord Denning in the Court of Appeal, in the case of Hadkinson v. Hadkinson, reported in 1952 AER 567.
4. Mr. G.H. Abbasi, learned counsel for the defendants did not seriously demur the factual basis of the plaintiffs assertion. He nevertheless, contended that in terms of the amendment in Order 39, C.O.C., effected through the Civil Law (Reform) Act, 1994, and an interim order passed in the absence of the defendant ceased to have effected after 15 days, and therefore, no order of the Court was operative when impugned construction was raised.
5. In order to appreciate Mr. G.H. Abbasi's contention, it may be appropriate to refer to the amendment whereby Rules 2-A and 2-B were inserted in Order 39, C.P.C. Which reads as under:-- "(2-A) An interim injunction passed under rule 1 or 2 in the absence of defendant shall not ordinarily exceed fifteen days: ' Provided that such injunction may be extended for tailure of this service on the defendant when such failure is not attributable to the plaintiff or when the defendant seeks time for defence of application for injunction.
(2-B)The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension: ' Provided that report of such extension shall be submitted to the High Court."
' Mr. Abbasi contended that in view of the above rule 2-A, since the interim order dated 7-5-1995 was passed without hearing the defendants, the same could not operate for a period of exceeding 15 days, as such it lost its efficacy on or about 25-5-1995, and a fresh order was required to be made. In the alternative, he submitted that even if an interim order was passed after hearing the parties, it would cease to remain effective after the expiry of six months and as such no interim injunction could be deemed to be operated after 7-11-1995. Mr. Munib Akhtar, on the other hand contended that the order was passed for an indefinite duration as evident from the expression "meanwhile" used in the same. I am aware of cases where Courts have held that use of expression "meanwhile" in interim orders indicates that the orders are meant to remain operative till they are expressly recalled by subsequent order of the Court or the matter is finally heard and decided. He further contended that even if the order was wrong in law, it was required to be obeyed unless recalled or set aside by the Court itself or by a higher Court.
6. While I am not impressed by Mr. G.H. Abbasi's contention with respect to automatic expiry of an order under rule 2-A. He appears to be on stronger wicket in the context of rule 2-B. He is prima facie correct to the extent that when by mandate of law an order must cease to have effect after a certain period a Court required to pass an order under that law would have no A jurisdiction to pass an order operating beyond, the period prescribed by law. The order would remain operative only till such time as the law allows it to have effect irrespective of the language used in the order.
Therefore, I do not agree with Mr. Munib Akhtar that such order must be expressly recalled.
7. Nevertheless, despite the interpretation of law canvassed by Mr. Cr.H. Abbasi being correct, I do not think it is of much help to the defendants. The reason being that the provisions of rules 2-A and 2-B do not appear to apply to the High Court. This is indicated by proviso to the aforesaid rule requiring that an order extending the effect of an interim order beyond the period of six months, ought to be reported the High Court. Obviously the Legislature could not have ordained that the High Court would report the factum of extension of extension of an interim order to itself. Therefore, it appears that the embargo in the above rule relating to interim order is only confined to Court other than the High Court.
8. Moreover, it needs to be kept in view that the High Court is not a Civil Court and the provision of Code (C.P.C.) have been made applicable to it, through the specific provision of section 117, which reads as under:- "Save as provided in this Part or in Part X or in rules, the provision of this Code shall apply to High Court."
9. Sections 121 to 131 occurred in Part X. Section 121 empowers the High Court to make rules to regulate its procedure and the procedure of Civil Court and also empowers the High Court to alter or add to any of the rules contained in the First Schedule of the Code. Section 129 empowers the High Court to make rules as their original civil procedure. It reads as under: "129. Power of High courts to make rules as to their original Civil Procedure.--Notwithstanding anything in this Code, any High Court may make such rules not inconsistent with (its Letters Patent) to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shalt affect the validity of any such rules in force at the commencement of this Code."
10. Evidently, the power of High Court to make such rules has been conferred notwithstanding anything contained in the Code. Even otherwise, the rules framed by the High Court would prevail over the rules stipulated in the First Schedule to the Code. The rules framed by the High Court are only required to be consistent with (its Letters Patent) of such Court and not the Code. Therefore, in case, there is conflict between the terms of the orders and rules contained in First Schedule to the C.P.C. And those framed by the High Court under section 129, the latter must prevail.
11. The rules of procedure applicable to the High Court in exercise of its original civil jurisdiction are Sindh Chief Court (0.S) Rules. These Rules can only be deemed to have the effect of Rule framed under section 129. Rule 76 of these Rules relates to procedure, reads as under:- "76. Notwithstanding anything contained in rule 123, the plaintiff may move the Court ex parte for interim relief on the ground of urgency and the Court on such application may, if it shall think fits, grant interim relief on such terms as shall seem just."
12. Evidently, there are no restriction as to duration or otherwise with respect to the powers of the High Court to grant interim relief. Rule 123 stipulate that ordinarily the opposite party would be entitled to show time to order asked for should not be granted. This rule too, however, place no condition relating to time of operation of interlocutory order.
13. It is settled law that statute curtailing the jurisdiction of the Court are to be strictly construed.
Even otherwise there are reported cases where certain restriction imposed by law on the powers of the Courts have been construed to apply to Courts other than High Court. One may conveniently refer to the Division Bench judgment of this Court in the case of Mirza Jawad Beg v. The State (PLD 1975 Kar 628) I am, therefore, of the opinion that newly inserted rules 2-A and 2-B in Order 39 do not apply to the High Court.
14. I confess that the legal question raised by Mr. G.H. Abbasi was not free be treated difficulty and consequently a person can under bona fide mistake of law be treated leniently. Nevertheless, in the existing circumstances, when the defendant consciously chose to defy an interim order passed by a competent Court only on the strength of a technical plea that he might be able to raise, he must be treated as doing so at his own peril.
' In the circumstances, I would direct the project of the defendants be attached by the official Assignee of this Court, who may thereafter inform the Court as to the extent of violation. Notice may also issue to Mr. Maqbool Illahi, Director of defendant No, 1 to show cause why action for disobedience of Courts order should not be taken against him.