RAJA MUHAMMAD SABIR, J.- This petition under Section 115 of Civil Procedure Code is directed against the judgment of Mr. Farman Ali, learned Additional District Judge, Lahore dated .16.1.1990, reversing the orders dated 29.9.1986 passed by Syed Athar Hussain Gardezi, learned Civil Judge, Lahore.
2. Brief facts of the case are that Feroze Din, respondent No. 1 (now dead) was a provisional allottee of a plot No. 106 measuring 1-kanal in Block-N, Lahore Cantt. Co-operative Housing Society. He sold it to Mubarak Ali, petitioner, for Rs. 15,000/- and executed an Ikramama dated 15.3.1978. At the same time an irrevocable power-of-attorney was also executed by him in favour of Mubarak Ali of the aforesaid plot. Subsequently, the same plot was sold by respondent No.1 to Dr. Miss Neelofar on 26.4.1982. Dr. Miss Neelofar further sold the same plot on 23.11.1982 to Shahid Iqbal, who was appellant No.3 in the lower appellate Court.
Mubarak Ali, petitioner, filed a suit for a declaration to the effect that Feroze Din had assigned his entire interest of the afore-mentioned plot to him, therefore, he was entitled to seek its transfer in his name by the Lahore Cantonment Co-operative Housing Society (hereinafter be referred as the Society) and that the deed dated 16.3.1978 revoking his power-of-attorney was void, illegal and inoperative against his rights. He also prayed for perpetual injunction to prevent the defendants from entering into any transaction with anybody with regard to &e aforesaid plot. Alongwith the suit the plaintiff also filed an application under Order 39 rules 1 and 2 CPC for the grant of temporary injunction till final disposal of the suit.
3. The suit as well as the application for interim relief was contested by the defendants. Interim injunction was issued by the learned Trial Court on 22.7.1979 which continued to be extended till final disposal of the suit. After appreciating the evidence of the parties, the suit of the plaintiff was decreed on 27.3.1983 with costs.
4. Feroze Din preferred an appeal against the aforesaid judgment and decree but the same wad dismissed by the learned Addl. District Judge on 4.7.1983. This order attained finality having not been further challenged by Feroze Din.
5. The decree holder, Mubarak Ali, moved an application on 5.1.1984 against the judgment-debtor, Feroze Din and the Society in the Court of Ch. Khalique-uz-Zaman, learned Civil Judge, for initiating proceedings of contempt for disobedience of the order dated 4.7.1983. He asserted therein that on 22.7.1983 he moved an application asking respondents Nos.2 and 3 for transfer of proprietary rights of the disputed plot to him but they refused to act upon the said judgment and decree passed in his favour. He further stated that he learnt that aforesaid plot had been transferred to somebody else and respondents Nos.2 and 3 permitted the- transfer in spite of the injunction order issued by the Court. He alleged that all the respondents violated the status quo order issued during the pendency of the suit and subsequently the final decree passed in his favour.
6. That application was resisted by the respondents and following issues were framed by the learned Civil Court :-
(1) Whether the respondents have violated the judgment and decree dated 27.3.1983 ? OPA.
(2) Relief.
7. The learned Civil Judge, after recording evidence of both the parties, convicted all the three respondents therein for having committed contempt of Court vide his order dated 29.9.1986. Feroze Din was awarded simple imprisonment for a period of six months in addition to attachment of the entire movable and immovable properties of all the three respondents for a period of one year from 29.9.1986. It was also ordered that such properties shall be sold in public auction to compensate the petitioner in case the respondents did not implement the judgment and decree passed on 4.7.1983 in favour of the decree-holder.
8. Aggrieved against the said order respondents Nos.2 and 3 herein instituted appeal before the Addl, District Judge which was ultimately disposed of through the impugned judgment dated 16.1.1990 whereby he declared the order of the learned Civil Judge dated 29.9.1986 void and unsustainable to the extent of the appellants before him. The order of attachment of the property held by the appellants was also reversed. It may also be mentioned here that prior to the disposal of the appeal by the learned Addl. District Judge, the last transferee of the disputed plot namely, Shahid Iqbal, had submitted an application under Order 1 rule 10 CPC for his impleadment as one of the appellants. Consequently, he was impleaded as appellant No.3 and the appeal was accepted in favour of the Society as well as Shahid Iqbal through the impugned order.
9. The petitioner herein did not implead aforesaid Shahid Iqbal as respondent in this revision petition. However, he submitted an application under Order 7 rule 11 CPC with a prayer for dismissal of the revision petition being incompetent on account of not having been impleaded as one of the respondents. This application was kept pending to be disposed of with the main petition.
10. Learned counsel for the petitioner contends that in the suit instituted by him against Feroze Din, injunctive order was issued on 22.7.1979 against the respondent No.1 which was ^extended from time to time. Ultimately the suit was decreed on 27.3.1983 which was subsequently affirmed on 4.7.1983 and attained finality as no appeal or revision was preferred further by the respondent No.1.
The respondents in defiance and disobedience to the aforesaid decree, transferred the plot in favour of Shahid Iqbal. The learned Civil Judge was, therefore, justified in accepting his contempt application and imposing penalty on the respondents. The learned Addl. District Judge has erroneously reversed the orders of the learned Civil Judge through the impugned judgment.
11. Feroze Din, respondent No.1 has since died. His legal representatives have been brought on the record but none has appeared to contest these proceedings on their behalf. There are, therefore, proceeded against ex parte.
12. Learned counsel for respondents Nos.2 and 3 submits that they were not impleaded as defendants in the suit. Neither they were in knowledge of the injunctive order nor the decree was passed against them, therefore, the question of disobedience of the orders of the Court by them, does not arise. It was further argued that the decree holder has never been a member of their Society, therefore, the plot in question could not be transferred to a non-member in a bona fide manner.
13. Mr. Jehangir A. Jhoja, Advocate for Shahid Iqbal (applicant in C.M.No.1-C/96) argued that this revision petition is not competent as he has not been impleaded as a respondent. He was appellant No.3 before the lower appellate Court and the appeal-having been accepted in his favour, he v/as also a necessary party and his non-impleadment has rendered this revision not maintainable.
14. I have heard the learned counsel for the parties and perused the record with their assistance.
15. Shahid Iqbal was impleaded as appellant No.3 before the lower appellate Court as he has been transferred the disputed plot on 23.11.1982 by the Society on the application of Dr. Miss Neelofar who in tum had purchased it from respondent No.1, Feroze Din. Appeal of respondents Nos.2, 3 and Shahid Iqbal was accepted by the learned Additional District Judge vide the impugned judgment.
It appears that petitioner has intentionally not impleaded him as a respondent, although, he was a necessary party having become appellant No.3 in the lower appellate Court and was likely to be effected by the final result of this revision petition.
In Ghulam Mohayud Din v. Mian Amiruddin 12 others (PLD 1977 Lahore 381), it has been held:- "Necessary .Party having not been impleaded, appeal filed before the High Court, held, not competent and appellants being guilty of extreme neglect could not invoke provision of O.XLI, r.20."
In view of the judgment cited above, no relief can be claimed by the petitioner against Shahid Iqbal as his non-impleadment as respondent in this petition, in turn has rendered this revision petition incompetent as a whole.
16. The stand of respondents Nos.2 and 3 that they were not a party before the learned Trial Court and the learned lower appellate Court and that they had no knowledge of the injunctive order as well as the decree passed in favour of the petitioner, is proved by RW.2, Muhammad Ilyas Malik, Law Officer who categorically stated that the injunctive order was never produced before the Society at the time the plot was transferred in favour of the Shahid Iqbal. In the case of Abdul Majeed and another v. Bashid Ahmad (1988 C.L.C. 1370) it has been observed that a person who was neither a party to the proceedings at the stage of passing the status quo and to whom the status quo order had not been addressed, could not be punished under the provisions of Order 39, rule 2(3) of CPC.
In another case, IftikharAli v. Javaid Dastgir Mirza and six others (PLD 1975 Lahore 126) it has been held that only such person to whom temporary injunction was directed, could be held guilty of disobedience under the provisions of Order 39, rule 2(3) of CPC, and that a Court cannot punish a person under provisions of Order 39, rule 2(3) and (4) of the CPC against whom no temporary injunction was made nor any terms were imposed.
17. The application of the petitioner was processed under Order 39 rule 2(3) and (4) CPC and not under Section 3 of the Contempt of Court Act. Order 39 rule 2 reads as follows:-
(1) "In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may; at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by such injunction, on such terms, as to the duration of the injunction, keeping an account giving security Or otherwise as the Court thinks fit.
(3) In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the prison for a term not exceeding six months, unless in the meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto."
Admittedly respondents Nos.2 and 3 were not a party in the suit as well as in the appeal nor any direction was issued to them, therefore, they were not liable to be punished for disobedience of the decree passed in favour of the petitioner. The learned Additional District Judge has rightly reversed the findings of the learned Civil Judge against them. Malik Muhammad Ilyas, Law Officer was produced by respondents Nos.2 and 3 before the Trial Court as R.W.2 who stated that in July, 1983 the petitioner submitted an application to the Society alongwith decree, of the Civil Court and the judgment of the learned Additional District Judge affirming the decree, and requested for transfer of the plot in his favour. The plot had already been transferred to Shahid Iqbal in the year 1982 after exchanging many hands. In such a situation, the Society cannot be held guilty of disobedience of the aforesaid decree and proceedings against them for committing contempt of Court were unsustainable.
18. Respondents Nos.2 and 3 have never been a party to the civil suit nor in the appeal. It has also been proved on record that they were not even in know of the injunctive order passed by the Civil Court. No punitive action could, therefore, be taken against them. The learned Additional District Judge has rightly severed the order of the learned Civil Judge qua respondents Nos.2 and 3 through the impugned judgment, which is based on true appreciation of law and facts and calls for no interference by this Court.
19. Respondent No.1 died during pendency of the instant petition. He challenged his conviction through separate petition which has been disposed of today having abated on account of his death. Legal heirs of respondent No. 1 are immuned from any penal action arising out from his personal act in relation to disobedience of the order of the Court.
20. For the aforegoing reasons this petition is dismissed with no order as to cost.