1. ' In this First Rent Appeal filed by the appellant under section 21 of the Sindh Rented Premises Ordinance, the appellant has filed Civil Miscellaneous Application No,545 of 1996 under sections 3 and 4 of the Contempt of Court Act, 1976 read with section 204 of the Constitution of the Islamic Republic of Pakistan, 1973 stating therein that in violation and disobedience of the order, dated 10- 9-1995 passed by this Court, the respondents Nos. 1, 2, 4 and 5 have not only raised walls between pillars as indicated in the sketch attached to the report of the Commissioner dated 18-4-1995 but have parted with the possession of the premises in question to Sajjad Automobiles Telephone No,4915682, 4948193 (84, Fatima Jinnah Colony, Karachi). It is further stated that the said respondents have no respect and regard for law and Court orders. They have deliberately committed most flagrant contempt of Court and are thus liable to be dealt therefor. The appellant prayed that this Hon'ble Court may be pleased to commit the respondents Nos. 1, 2, 4 and 5 to prison and order the restoration of premises in question to its position in which they were before passing of order dated 10-9-1995.
2. ' The other application Civil Miscellaneous Application No,546 of 1996 has been filed by the appellant under section 20 of the General Clauses Act, section 22 of the Sindh Rented Premises Ordinance, 1979 read with section 151, C.P.C. Praying therein that the premises in question to be put in the same position in 'which they were before passing of order dated 10-9-1995 and seal them pending disposal of the appeal and/or passed such order as may be deemed fit as necessary.
3. ' The third application filed by the appellant which is Civil Miscellaneous Application No,360 of 1997 is also under sections 3 and 4 of the Contempt of Court Act, 1976 read with Article 204 of Constitution of Islamic Republic of Pakistan, 1973 and section 151, C.P.C. Praying therein that the case premises may be attached/sealed.
4. ' The attorney of respondents Nos. 4 and 5 filed counter-affidavit stating therein that the inspection of the property was made when the old structure had been pulled down and there existed no sign of the shop premises in respect of which the appellant was allegedly a tenant. He further stated that the inspection was made behind the back of the respondents Nos. 4 and 5 and at the relevant time the said respondents were not even parties to the proceedings. That the appellant never disclosed the site or size of the disputed rented premises since demolished. It is further stated that the plot is a corner plot having roads on its two sides and the report and sketch are silent as to the actual road at which the disputed plot was allegedly shown by the appellant. Further, it has been stated that the premises given to M/s. Sajjad Automobiles is different from the one which exists between two pillars as per orders of this honourable Court passed on 10-9-1995.
5. ' The appellants filed affidavit-in-rejoinder disputing and denying the facts disclosed in the counter-affidavit and stated that the attorney under the circumstances of the case could not have filed the counter-affidavit on behalf of respondents Nos. 4 and 5. The appellant stated in the affidavit in rejoinder that he was ejected with the assistance of the police and by some other Agency under an order that was obtained by respondents Nos. 1 and 2 by fraud, misrepresentation, collusion and concealment, without proper service and behind his back. The appellant also stated that the Deputy Nazir had inspected the proper and correct site.
6. ' I have heard Mr. Iqbal Ahmed for the appellant and Mr. H.A. Rehmani, for the respondents in respect of the above applications. The learned counsel for the appellant contended that in this case an order, dated 10-9-1995 was passed modifying order of the status quo granted earlier vide order, dated 26-3-1995 and the respondents Nos. 4 and 5 have violated the said order by raising walls in-between two pillars and by parting with possession of the portion of the demised shop. He further contended that Deputy Nazir was appointed as Commissioner and his report is clear that the respondents have raised construction and handed over possession of the premises to M/s. Sajjad Automobiles. He further contended that the respondents did not file any objection to the first report of the Commissioner they only filed objections to the second report. The learned counsel further contended that under the circumstances of the case the respondents have disobeyed the order of this Court and, thus, they are liable to be punished under the Contempt of Court Act.
7. Replying to the contentions of the appellant's counsel, H.A. Rehmani counsel for respondents Nos. 4 and 5 contended that the Nazir's reports do not show the road by the side of which the disputed shop was situated. According to the learned counsel the Nazir did not inspect proper and correct site. According to him the site where the disputed shop was situated has been left open by them and is lying vacant till today and further they undertake that they will hand over the same to the appellant, if he succeeds in this appeal. It was further contended that the appellant never furnished the exact location and size of his shop. The respondents Nos. 4 and 5 purchased the plot from respondents Nos.1 and 2 vide sale-deed, dated 14-5-1994 and at that time the plot was lying vacant/open with no construction thereon and the appellant had already been ejected. The appellant filed an application under section 12(2), C.P.C. And in that application also the appellant did not show the area and location of his shop, furthermore in the memo. Of appeal also no area and location of the shop has been given by the appellant. He further contended, that vide order, dated 4-3-1997 the Deputy Nazir was appointed as Commissioner and representative of respondents Nos. 4 and 5 pointed out the actual location of the appellant's shop but the Nazir did not consider the same and inspected the wrong site and filed his report.
8. ' Before considering the contentions of the learned counsel, of the parties, it will be proper to see at a glance, the proceedings of this appeal. The order, dated 26-6-1994 is as under: "Notice. In the meanwhile the parties will maintain status quo." The diary, dated 28-8-1994 is as under: "The respondents do not appear to have been served. Repeat notice. In the meanwhile the interim order passed earlier shall continue."
9. ' Then, the diary, dated 16-10-1994 is as under: "Mr. A.R. Mirza requests for time. By consent adjourned to a date in office."
10. ' Then, the appeal was fixed on 7-11-1994, 13-11-1994 and on 4-12-1994. On 4-12-1994 ,an order was passed dismissing the injunction application praying that the respondents may be restrained from transferring the plot. Further the other application for attachment of the property for violation of order passed on 29-5-1994 directing the parties to maintain status quo, was also dismissed.
11. ' Thereafter on 26-3-1995 the Court again adjourned the appeal to 2-4-1995 and directed the parties to maintain status quo till the next date. On 5-4-1995 the appeal was adjourned but the status quo order was not extended, however on 12-4-1995 it was ordered as under: "Status quo order, if any in operation will continue till the next date."
12. ' It appears that the aforesaid order, dated 12-4-1995 continued to be extended from date to date up to 30-4-1995, however, even the said order thereafter was not extended on 27-8-1995.
13. ' The aforesaid background of the proceedings would show that the order of status quo had ceased to operate on 10-9-1995 when the said original order, dated 26-3-1995 was modified. On 10-9-1995 there was no order; dated 26-3-1995 in existence as such there was no question of its modification in any manner. Be that as it may, the order, dated 10-9-1995 is to be considered from another angle. The powers of the Appellate Court to grant injunction are given in section 21(2) of the Sindh Rented Premises Ordinance which reads as under: "Section 21(2): ' The Appellate Authority may pending the final disposal of the appeal, grant injunction staying further proceedings or action on the order of the Controller: ' Provided that no injunction shall be granted if the appeal has been preferred from the order under section 14."
14. Under the Sindh Rented Premises Ordinance, which is a special law, the Appellate Court could exercise its power in accordance with the above provision only, which empowers it to "grant injunction staying further proceedings or action on the order of the Controller". These powers cannot be equated with the powers of the Court as mentioned under Order 39, Rules 1 and 2 of the Code of Civil Procedure.
15. ' The above discussion would show that in the proceedings under section 21 of the Sindh Rented Premises Ordinance, the powers of the Appellate Court are limited to grant injunction staying further proceedings or action on the order of the Rent Controller. If the parties are desirous to ask for injunction in any other form, then, they shall have to approach the Civil Courts for their redress in this respect.
16. ' Now coming to the present applications, it is well-established that contempt of Court proceedings are quasi-criminal in nature. Viewing from this angle, the facts which emerge are, that the Court passed order on 10-9-1995, the portion of the order relevant to these proceedings is reproduced as under: "Learned counsel for the proposed respondents states that the said respondents are being greatly prejudiced by the order of status quo, dated 26-3-1995 whereby the construction on the entire. Plot has been stopped. He, therefore, requests that the order may be verified suitably. The above order is, therefore, modified to the extent that the proposed respondents may raise construction, but they will not raise any wall, in-between the two pillars shown in the sketch filed with Commissioner's report indicating location of the shop in dispute. The proposed respondents are further restrained from parting with the possession of the shop to be constructed in between the said two pillars."
17. ' The sketch referred to in the order showed three pillars and not two pillars. The order did not specify that it was in respect of which two pillars out of the three as shown in the aforesaid sketch.
18. ' The learned counsel for the respondents Nos. 4 and 5 contended that the appellant was not in possession of shop at the site which was inspected by the Commissioner and the report of the Commissioner was one sided without notice to them. It seems that there is a dispute between the parties with regard to the location, and the size of the shop which was in possession of the appellant.
19. ' The respondents Nos. 4 and 5 have filed their sketch showing the space of the shop which was in possession of the appellant, which is still lying vacant between the two pillars. The respondents Nos.
20. 4 and 5 are still ready and willing to hand over that space as a shop to the appellant subject to the decision of the appeal, if disposed of in his favour.
21. It is an admitted position that the appellant, throughout the proceedings never disclosed the site and size of his shop. It is stated on behalf of the respondents Nos. 4 and 5 that they had been misled as the order was not passed in respect of the actual space of the appellant's shop and whereas they kept the actual space of the appellant's shop reserved in compliance of the order, treating it as an order regarding the actual space of the appellant's shop. The respondents placed themselves at the mercy of the Court unconditionally for being pardoned.
22. ' The principle is that the order regarding which breach Is alleged should be a legal, clear and unambiguous order leaving no room for any person to commit any error or mistake and/or to create any misunderstanding on the part of the alleged contemner.
23. ' As pointed out earlier, the order, dated 10-9-1995 is in respect of the space between the two pillars whereas admittedly there were three pillars. The order was not clear in respect of which of the two, out of three pillars it referred. Further there is dispute between the parties with regard to the actual space of the shop which was in possession of the appellants. The respondents have still kept the space vacant for the appellant between the two pillars, where according to them the appellant had his shop.
24. ' It is also an admitted position that the first inspection by the Nazir was carried on in the absence of the respondents and at the pointation of the appellant, the site was inspected. The version of the respondents is that the appellant never had his shop at the site which was inspected in their absence, whereas the appellant insists that he had the shop at the site inspected by the Nazir.
25. Apparently there are two versions of the dispute on the record which are yet to be decided.
26. ' The fact that the respondents have still kept the site of the appellant's shop vacant supports the version of the respondents that they might have been misled regarding the order passed by the Court on 10-9-1995. In the case reported in AIR 1953 Nagpur 179 (Pitrus Lahra v. R.V. Dalal and others) after discussing the case-law it was observed that it must be proved that the party proceeded against, have committed a wilful disobedience of the order of the Court.
27. ' In the case reported in 1984 CLC 2896 (Nasim Hassan and 14 others v K.M.C. And 2 others) it has been observed by a Division Bench of this Court as under: "Contempt.---To constitute punishable contempt disobedience, held, must be wilful. Mere unintentional disobedience of judgment, order or process of Court amounted to a contempt in theory only and did not render accused liable to punishment."
28. ' In S.M. Yousuf's case reported in PLD 1969 SC 77 the honourable Supreme Court observed as under: "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. The dignity of the Courts rests on far more sure foundations of public trust and confidence. These foundations become stronger by the noble and serene conduct of judicial rectitude on the part of the Judges rather than by coercive actions taken in provocation, or sensitiveness for vindicating their authority.
29. 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 had acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him."
30. ' Re: PLD 1990 Karachi page 173 (Dr. Asaf Hussain Jafri v. K.B. Bhutto, Advocate). In this case after referring to and discussing the case-law, it has been observed as under: "In a contempt case if there are two versions of the incident on the record, divergent in nature, allowing room for doubt, then, benefit of that doubt must be given to the alleged contemner."
31. After hearing the parties at length and perusing the record of the case I have come to the conclusion that under the circumstances of the case as discussed above the disobedience by the respondents Nos.4 and 5 was not wilful and that they are entitled to get the benefit of doubt. The applications filed on behalf of the appellant under sections 3 and 4 of the Contempt of Court Act read with Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 (Civil Miscellaneous Applications Nos.545 of 1996, 546 of 1996 and 360 of 1997) are dismissed. However, the respondents Nos. 4 and 5 are directed to let keep the space between two pillars as shown in their sketch filed alongwith their counter affidavit, vacant till decision of the appeal. Further the appellant shall also have a lien charge over the space shown by the Commissioner in report which according to the Commissioner's report is in possession of Sajjad Automobiles, till decision of this appeal. Notice with regard to the charge/lien of the appellant may be pasted at the outer door of the shop in possession of Sajjad Automobile, in presence of two witnesses.
32. ' Civil Miscellaneous Appeal No,361 of 1997 is a formal application, praying for permission for filing counter-affidavit on behalf of the respondents Nos.4 and 5, which has already been filed. The said application is allowed.