' Respondent filed an application under the provisions of Order 39, Rule 2(3), C.P.C. Against the appellant before the trial Court complaining that the appellant has violated and disobeyed the interim order of injunction dated 10-4-1998 in his favour passed by the Court. This application was contested, issues were framed, evidence of the parties was recorded and vide order dated 30-9- 1998 (impugned order) the Court found the appellant guilty of violating the injunction order, consequently, punished the appellant to undergo civil prison for three months. Moreover, the appellant was also directed to restored the vacant possession of the suit property to the respondent. Hence the appeal.
2. Relevant facts of the case are that the respondent on 10-4-1998 filed a suit for specific performance and permanent injunction, etc. Against the appellant defendant No,2 Syed Laeeq defendant No,1 and the District Housing committee Rawalpindi defendant No,3. It was claimed by the respondent that Syed Laeeq Ahmed Shah vide agreement of sale dated 13-9-1997, agreed to sell the Property bearing No,F/1034 Setellite Town, Rawalpindi in his favour and received a sum of Rs,100,000 (Rupees one lac only) as earnest money. Defendant No,3 has issued some transfer order dated 10-6-1995 showing the transfer of the suit property in favour of the appellant/defendant No,2, which is void, illegal and ineffective qua the rights of the respondent. Furthermore, a decree for permanent injunction was also sought restraining defendant No,2 from claiming any right over the suit property and from 'interfering in the peaceful possession of the respondent.
3. The respondent in her plaint had averred that earlier to the aforesaid agreement the respondent was in possession of the suit property as a tenant under Syed Laeeq Ahmed/defendant No,l. In the first week of March, 1997, appellant/defendant No,2 attempted to interfere in her peaceful possession over the suit property on the pretext that he has purchased the property, from Syed Laeeq Ahmed. In such situation, respondent was constrained to file suit for permanent injunction against the appellant as well as Syed Laeeq Ahmed, which was decreed on 5-6-1997. It is further stated in the plaint that defendant No,2 has initiated ejectment proceedings against the respondent from the suit property.
4. That, alongwith the above suit an application under Order 39, Rules 1 and 2, C.P.C. Was also filed by the respondent, praying therein, that appellant/defendant No,2 till the final decision, of the case be restrained from claiming any right in respect of the suit property and defendants Nos.1 and 2 be restrained from further alienation of the property and from interference in the peaceful possession of the respondent. On this application, the trial Court vide order dated 10-4-1998 was pleased to direct for the maintenance of "status quo" summonses/notices were ordered to be issued to the defendants for 24-4-1998. Appellant seems to have been served as he was presented by Dr. Raja Khalid Ismail, Advocate, on 24-4-1988, Quite a number of opportunities were availed by the appellant for. The filing of written statement, and reply to the interim application, which was ultimately filed on 28-7-1998. In this written statement, the stand taken by the appellant was that Syed Laeeq Ahmed had no concern with the suit, property, which throughout had vested in him and that the respondent in fact was tenant not under Syed Laeeq Ahmed but under the appellant.
In para. No,3 of the written statement, the previous decree for permanent injunction dated 5-6- 1997 as mentioned above passed in favour of the respondent against the appellant, etc. Was admitted. It is stated in written statement that it is the appellant who is the owner and landlord of the respondent. In reply to para. No,10, by denying that any cause of action has arisen in favour of the respondent a plea was taken that during the pendency of the suit, through a compromise, respondent had vacated and handed over the possession of the suit property to the appellant, but thereafter, she had started blackmailing him. It was averred that in the circumstances, the suit has become infructuous. It is pertinent to state here that neither details of the compromise such as date etc., nor any written instrument in this behalf was filed with the written statement.
5. On 29-7-1998, respondent filed an application under Order 39, Rule 2(3), C.P.C. Stating that on 27- 7-1998 at 10-30 p.m, the appellant alongwith armed persons raided the suit property and forcibly took over the possession in violation of the status quo order. The matter has been reported to the police and F.I.R. No,268, dated 27-7-1998 has been lodged.
6. In reply to this application the appellant has taken the same stance of a compromise, with further plea that after the compromise and handing over the possession of the suit property to the respondent with an intent to blackmail pressurized the appellant to pay Rs,500,000 and on refusal has filed the instant petition. In this reply as well, no particulars or details of the compromise were given, even it is not specified as to what was the consideration of this agreement and the date and time when it was arrived. Rather a conspicuous and significant fact mentioned in this reply is that the appellant disclosed to have filed a suit for permanent injunction against the respondent to prevent her from interfering in his possession qua the suit property. But the date of filing of this suit and other particulars are again missing.
' That the trial Court in view of the written versions of the parties framed the following issues:--
(1) Whether the petition is not maintainable in its present form? OPD.
(2) Whether petition is barred by law? OPR
(3) Whether the petitioner has not come with clean hands and is also estopped by his words and conduct? OPR
(4) Whether the present petition is false, frivolous and as such the respondents are entitled to get especial costs under section 35-A, C.P.C.? If so, to its effect and to what extent? OPR
(5) Whether the petitioner handed over the possession of the suit property to the respondent through compromise? OPR
(6) Whether the respondents have violated the orders of the Courts dated 10-4-1994. If so, its effect? OPA.
(7) Relief.
' Parties led evidence. The respondent examined Ehtisham-ul-Haq, her husband as A.W.1 as special attorney and also produced documents as A-1 to A-9, whereas appellant himself appeared as R.W.1 and examined Niaz Ali Abbasi as R.W.2 and Raja Muhammad Qurban as R.W.3. No significant documentary evidence was produced by him. The trial Court as mentioned in the opening para. Of this judgment punished the appellant vide impugned order and also directed for the restoration of suit property.
7. I have heard the learned counsel for the parties, examined the record and the impugned order.
8. It has been contended by the counsel for the appellant that on 27-7-1998, when the respondent is alleged to have been forcibly disposed, there was no "status quo" order in existence. According to him under the provisions of Rule 2-A of Order 39, C.P.C. An ad interim injunction can only be granted for 15 days, however, it can be extended under the proviso if the conditions laid there are fulfilled. As no extension was subsequently granted by the Court, the order dated 10-4-1998 became inoperative and ineffective on the lapse of 15 days from 10-4-1998. In support of his contentions, the learned counsel has relied upon Samir Oosman and 2 others v. Rex Talkiles (Pvt.)
Ltd. Etc. (PLD 1997 Karachi 579.
9. I am afraid that submission made is not well founded. The provisions of Order 39, Rule 2-A are not mandatory in nature, rather only provides guideline to the Court not to grant ad interim injunction "ordinarily" exceeding 15 days. However, the Court has power to extent such ad interim order if the defendant has not been served and the failure in this behalf- is not attributable to the plaintiff or when the defendant seeks time for defence of the application for injunction. As per this rule, ad interim injunction granted per se would not lapse after the expirty of fifteen days. The only requirement of law is that the Court should extend such injunction, but if the Court does not by any specific order grant the extension of the ad-interim order earlier passed, it would be presumed that the extension has been granted. The reading of sub-rule 2-A with 2-B would make the point more clear, because in the latter rule the mandate of the law is that the injunction order shall cease to have effect on the expiration of the six months' time unless extended by the Court after hearing the parties and for reasons to be recorded for such extension. Besides, the Court is also required to submit the respect of the extension to the High Court.
10. From the reading of two provisions, it is abundantly clear that Rule 2-B is mandatory in nature and if an injunction order granted under this Rule is not extended, it would lapse by operation of law on the expiry of six months time period unless by conscious application of mind, the Court extends it for further period by giving reasons.
11. This mandate of law and consequences thereof are conspicuously missing from Rule 2-A meaning thereby that the said rule is directory in nature and if the conditions laid down in the provision to this Rule are fulfilled and no specific order exist for the vacation of the order, it would be deemed that the Court granted the requisite extension within the purview of the proviso.
Particularly with reference to this case, the appellant had appeared on 24-4-1998 and had been procuring adjournment till the written statement and reply to the I njunction application was finally filed on 28-7-1998. Consequently, it is the appellant who has been seeking time for his defence and if by any specific order, ad interim injunction dated 10-4-1998 was neither extended nor specifically vacated in would be effective and operative. The judgment reported as PLD 1997 Karachi 579 cited by the appellant's counsel relates more to the application of Rule 2-B, vis-a-vis the powers of the Sindh High Court to grant injunction under the Sindh Chief Court Rules. It has been held that these two Rules 2-A and 2-B, do not operate as a restriction to the duration or otherwise with respect to the authority of the High Court to grant injunction in terms of the Sindh Chief Court Rules, therefore, this judgment is of no much help to the appellant.
12. There is another important aspect of the matter, in the application under Order 39, Rule 2(3), C.P.C. Filed by respondent, in Paragraph No,3, its has been specifically mentioned that the order dated 10-4-1998 granting status quo is intact and operative of which appellant was fully in knowledge. In written reply, this has not been specifically denied by the appellant.
' Moreover, in his cross-examination the appellant in unequivocal terms has admitted that he had the knowledge that on 10-4-1998 status quo order was passed in favour of the respondent preventing his illegal dispossession. He appeared in the Court on 24-4-1998 and made a statement that he had no intention of dispossessing the respondent on 27-7-1998 from the suit property. This goes to show that it has not been the case of the appellant that no order of injunction was effective or operative on 27-7-1998 when the dispossession of the respondent as alleged by him illegally took place. The argument of the learned counsel that as it is a question of law, thus could be raised at any stage of proceedings particularly in appeal, has no force because in the instant case, it is the question as to whether the respondent was himself conscious of the fact that the injunction order was operative rather than being a legal question. Even otherwise, it is not the case of the appellant that the respondent had been dispossessed illegally in violation of the injunction order, but position taken by him is that the respondent had voluntarily handed over the possession in view of a compromise between the parties, therefore, the appellant cannot set up a plea which is inconsistent with this own stance and to take shelter behind the technicality of law.
' In the light of above, this submission of the appellant is hereby repelled.
13. Learned counsel for the appellant has further argued that according to law proceedings under Order 39, Rule 2(3) and any order passed in pursuance thereof, could only be made by the same Court which has granted the injunction. In this case, the injunction order dated 10-4-1998 has been passed by Mr. Nasrullah Ranjah, Civil Judge, Rawalpindi whereas the proceedings and the impugned order has been passed by Mr. Sanaullah Malik, Civil Judge, Rawalpindi. In support of his argument, he has relied upon the cases reported as I&G Investment Trust v. Raja of Khalikate (AIR 1952 Calcutta 519) and Jaharuddin v. Hari Charana Poddar and others (AIR 1914 Calcutta 815).
14. In order to analysis the above submission, it is important to go into the background of transfer of the instant proceedings from the Court of Mr. Nasrullah Ranjah to Mr. Sanaullah Malik, From the record it transpires that the A.C. (City) Rawalpindi, initiated proceedings under section 145 of the Cr.P.C. Vide order dated 8-8-1998 regarding the suit property. The appellant feeling aggrieved sought quashment of such proceedings by filing Cr. Miscellaneous No, 52-Q of 1998, before the High Court at Rawalpindi Bench. This Court after considering the whole matter also being cognizant of other cases between the parties, pending in different Courts relating to the same property came to the conclusion that in order to avoid conflicting decision, it would be appropriate that all matters be tried by one and the same Court. In his behalf, this Court was specifically conscious of the application under Order 39, Rule 2(3) filed by the respondent, which find mentioned in the order, consequently, it was ordered that "learned District and Sessions Judge, Rawalpindi is also directed that the civil suits pending between the parties be entrusted to one Court to avoid conflicting decisions".
' It may be pertinent to state here that the application under Order 39, Rule 2(3) fact was pending and was part of the suit for specific performance filed by the respondent. In pursuance of the above order on application moved by the respondent, the leaned District Judge vide order dated 2-9-1998, directed that the case be transferred to the Court of Mr. Sana Ullah Malik, Civil Judge, because at the time of passing of the order, Mr. Nasrullah Ranjah Civil Judge had been transferred without a substitute, therefore, the instant matter alongwith another case pending between the parties was entrusted for disposal to the Court of Mr. Sanaullah Malik Civil Judge, Rawalpindi, the parties were directed to appear before the tranferee Court on 5-9-1998. It may be important to mention here that neither the Order of the High Court for directing the adjudication of the case pending between the parties by one and the same Court nor order of transfer passed by the Learned District Judge passed in pursuance thereof, were challenged by the appellant any further.
It may also be relevant to observe that Mr. Nasrullah Ranjah, Civil Judge by the relevant time had already been transferred and there was no new incumbent, resultantly, the same Court in any case was not in a position to decide the matter in hand. Moreover, it is not the case of the appellant that Mr. Sanaullah Malik, who has passed the impugned order had otherwise no jurisdiction or was incompetent to decide the application under Order 39, Rule 2(3), the appellant had fully participated in the proceedings without raising any objection, therefore, to say that the impugned order be now set aside on the above ground, has no force. The judgments which have been referred to by the learned counsel for the appellant, in the particular facts and circumstances of the instant case have no relevancy.
15. It has been also been argued that the order of injunction granting status quo in favour of the respondent was vague and general in nature, thus, no contempt can be passed thereupon.
Reliance in this behalf is placed on the case reported as Gaman and 5 others v. Muhammad Ali and 8 others (PLD 1995 SC 572). This contention is not tenable because the status quo order is to be interpreted in terms of the injunction application filed by the responded. In this application, in clear and unequivocal terms it has been prayed that the appellant be restrained from illegally and forcibly dispossessing the respondent. Moreover, the respondent has admitted in his cross- examination that he was aware of the said order and had no intention to illegally dispossess the appellant in violation thereof, consequently, it cannot be said that the appellant was mislead by the order or could not comprehend the same due to any vagueness it he is not the case of the appellant. Rather the appellant has taken a definite plea that he obtained the possession on account of compromise between the parties.
16. As regards the argument that property procedure has not been followed by the Court below in adjudicating the matter, learned counsel for the appellant has relied upon the case reported as Hatim v. Shah Din (PLD 1952 Lahore 77). However, held has failed to show as to what error has been committed by the Court below in proceeding and adjudicating the application. As held in PLD 1952 Lahore 77, "there is no precise procedure which has been laid down to adjudicate such application and the Court is supposed to put the person at his fault on his guard by framing a question or as an issue which should embody all the elements of a charge under the criminal jurisdiction". In the instant case, proper issues were framed which covered the controversy between the parties and the appellant was fully conscious and aware of the charge against him vis-a-vis the violation of the order passed by the Court on 10-4-1998.
' Moreover, learned counsel for the appellant has also filed to establish as to what prejudice has been caused to the appellant in the proceedings. The parties were given full opportunities of adducing their evidence and there is nothing on the record which could validly shows that the appellant has been denied the right of hearing as required under the law.
17. Lastly, the submission of the learned counsel for the appellant is that the Court below has misread the evidence on the record. The record and judgment of the trial Court has been carefully perused. It is an admitted position on the record that the case of the respondent was pending and the next date of hearing fixed for filing of his written statement and reply to the injunction application was 28-7-1998. Likewise, the ejectment application filed-by the appellant was also pending on the said date. It is the case of the respondent that on 27-7-1998, a day before the case was fixed in the Court, the appellant with armed persons forcibly dispossessed the respondent, the matter was reported to the police by the respondent by lodging F.I.R. No,268 dated 27-7-1998. The respondent has been illegally and unlawfully disposed in violation of order. In reply to this application, the respondent has taken the position that on 27-7-1998, the suit property was already under his possession as a result of compromise between the parties, he on account of this compromise, was handed over the possession by respondent voluntarily and had accordingly applied to the Rent Controller where his ejectment petition was pending for withdrawal of the same. Thereafter, the respondent stated blackmailing the appellant and demanded an amount of Rs,5,000 which was declined by the appellant and consequently the present application has been moved by respondent. It is very strange that the appellant in his reply has not stated the particulars of the compromise nor any date of the compromise is given, besides, it is not even stated that when did respondent delivered the possession of the suit property to the appellant in pursuance of the said compromise. Respondent inter alia has brought on the record F.I.R.
Mentioned above, lodged with the police as Exh. A-7 which clearly shows the prompt action on part of the respondent to inform the police authority regarding the illegality committed by the appellant. Ex.PA-4 is an application for withdrawal of ejectment petition which the appellant moved before the learned Rent Controller Rawalpindi on 23-7-1998, stating that the appellant has got vacated the possession in pursuance of the compromise and the other suit for specific performance, shall be withdrawn by the respondent. No notice on this application was got issue to the respondent, rather it was got fixed for 2-9-1998 alongwith the main case which was pending for that date. No proof of any compromise to hand over the possession was appended herewith.
Exh.PA-5 is the reply of this application in which the respondent has clearly denied of entering into any compromise with the appellant or delivery of possession.
18. From these documents, as also from the statement of attorney of the respondent, one important fact stands established that on 27-7-1998, the respondent was in possession of the disputed property, if the appellant had entered into the compromise prior to 27-7-1999 and had obtained the possession of the property as stated in the application for withdrawal of ejectment application before the learned Rent Controller, he should have required the respondent to likewise apply to the Court where the suit for specific performance was pending for dismissal of his suit for specific performance or himself could have apprised the Court about this development. Saving any predicament, when he was conscious that there is a decree for permanent injunction against him and the "status quo" order was also in force. It is in fact in the suit for Specific Performance where the information of the alleged compromise was required to be placed Rather surreptitiously moving an application for withdrawal of his ejectment petition, on 23-7-1978 unitarily stating therein that respondent shall also withdraw his suit. It is absolutely illogical and unbelievable that in the backdrop of protracted litigation between the parties, nothing was got reduced into writing by the appellant for safe guarding his interest. If they had really entered into an agreement, but was not in writing at least joint application to the above effect should have been brought on the record of either of the two cases.
19. The respondent had discharged its initial burden of proof of dispossession and the appellant was claiming a compromise and handing over the possession by the respondent in pursuance thereof, the onus to prove such agreement was heavily on his shoulders. R.W.1, the appellant has stated in his examination-in-chief that on 22-7-1998, the respondent vacated the premises, took away his goods and that the premise was put under the locks and key of the appellant. R.W.2 and R.W.3. Who are real uncles of the appellant, and are the only witnesses who have come forward to support the appellant. They are not independent witnesses; whose statements could be believed regarding compromise and the handing over of the possession by respondent voluntarily to the appellant. They have no peen able to satisfactorily explain the terms of the compromise as well.
20. From the collective reading of the evidence on record and the appreciation thereof, I am convinced that there is no misreading on the part of the trial Court. The plea of forgoing rent in fact is the result of any afterthought and has been put up to cover the illegality committed by the appellant and also obliquely to establish consideration justifying the so-called compromise between the parties.
21. The appellant has failed to establish any compromise on the basis whereof he could take over the possession though it was incumbent upon him when he had taken up the counter-position to establish the same. Thus, I come to irresistible conclusion that the respondent had planned to take over the possession illegally, consequently, he moved an application on 23-7-1998, before the learned Rent Court to withdrawn his case, thereafter, took over forcibly the possession of the suit property in violation of the injunction order and when confronted with the situation, he prescribed a concocted defence of compromise.
22. Before parting with the judgment, it may be stated that the learned counsel for the appellant has argued that Ehtisham-ul-Haque, husband of the respondent was not her validly constituted attorney and thus, his statement cannot be taken into account. It may be stated that in his examination-in chief, he has stated in clear and unequivocal terms to be the attorney of the respondent and the part of his statement has not been cross-examined. Moreover, the power of attorney is duly available on the record authorizing the said attorney to make statement on behalf of the respondent. This -objection has no force.
23. It is a clear case where the order of the Court has been blatantly and flagrantly violated, thus, the trial Court has rightly punished the appellant with imprisonment of three months. Besides, as the appellant had violated the injunction order, consequently, he is bound to restore the possession of the suit property to the respondent as held in the case reported as Bakhtawar and others v. Amin and others (1980 SC 89).
' In view of above, this appeal has no merits and is hereby dismissed.