' MUNIR A SHEIKH, J.---This appeal is directed against the judgment /order dated 29-5-1996 of a Division Bench of the High Court of Sindh-Karachi through which the appellants were held liable for punishment for violation of order passed by the said Court for maintenance of status quo and they have been ordered to be detained in prison for a term of six months until they demolish the unauthorized construction themselves and pay compensation to the tenants, if any.
2. The facts giving rise to this appeal shortly stated are that on 28-5-1995, private respondents filed a Constitutional Petition No,D-356 of 1995 in the High Court of Sindh-Karachi praying as under:--
(a) That the construction of shops and the flats on the frontage of Survey No,641, Deh Naheki, Taluka Tando Allah Yar by the respondents Nos.3 and 4 on the road area of Chamber Road and Bukera Road or on any portion of Survey No,641 is illegal, void, mala fide and without any lawful authority.
(b) That direct the respondent No,1 not to approve the construction plan, if any, submitted by the respondents Nos.3 and 4 for the construction of shops and flats on the frontage of Survey No,641 Deh Naheki, Taluka Tando Allah Yar on the road area of Chamber Road and Bukera Road or any portion of Survey No,641.
(c) Restrain the respondents Nos.3 and 4 from raising construction of any nature on the frontage of Survey No,641, Deh Naheki, Taluka Tando Allah Yar on the road area of Chamber Road and Bukera Road or any portion of Survey No,641.
(d) Direct the respondents Nos. 1 and 2 to get the encroachment of the road area on the frontage of Survey No,641, Deh Nahkei, Taluka Tando Allah Yar made by the respondents Nos.1 and 2 removed by taking action according to law.
(e) Cost of the petition be awarded to the petitioners.
(0 Any other relief or reliefs which may be necessary and proper may be granted under the circumstances by this Honourable Court.
' Along with the Constitutional petition, the respondents, writ petitioners also moved Miscellaneous Application No,719 of 1995 for issuance of temporary injunction in the form of maintenance of status quo in respect of the matters contained in the prayer made in the said application which is reproduced below:-- "It is prayed that pending the decision of this petition, this Honourable Court may be pleased to grant temporary injunction restraining the respondents Nos.3 and 4 from doing any construction work on the road side of Chamber Road and Bukera Road in the frontage of Survey No,641, Deh Naheki on or any portion of Survey No,641, Deh Naheki, Taluka Tando Allah Yar and restraining any permission or approving any plan of construction on the said Road area or on any portion of Survey No,641 by themselves, their agents, servants or anyone else on consideration of the facts and grounds stated in the memo. Of petition and the affidavit attached herewith."
3. The Court on 29-5-1995 passed order for maintenance of status quo and there was no dispute that the summon was served on the appellants who were respondents Nos.3 and 4 in the Constitutional Petition on 5-6-1995. Civil Miscellaneous Application No,810 of 1995 was moved by the respondents-writ petitioners on 12-6-1995 complaining the violation of the said order, dated 29-5-1995 as to the maintenance of status quo as the appellants had raised construction over Survey No,641. This application was contested and it was denied that any violation had taken place.
The Court appointed Mr. Dhani Bux as Local Commissioner to inspect the spot and make the report as the dispute required factual inquiry as to the position obtaining at the spot. The Local Commissioner inspected the spot in the presence of the parties and submitted his report. He also complained before the Court as to the maltreatment given to him by the appellants and his other men at the spot. According to the report, the appellants were guilty of violation of order passed by the Court for maintenance of status quo which in terms of prayer made in the application for temporary injunction amounted to a prohibitory order against raising of construction over Survey No,641.
4. On considering the report made by the Local Commissioner as also the report of the Nazir of the Civil Court, Tando Allah Yar in which Court also a suit is pending in respect of a similar complaint against the appellants as regards raising of construction over the said Survey in which also Nazir was appointed as Local Commissioner, it was held by the High Court that it had been established that the appellants were guilty of violation of the order of maintenance of status quo, therefore, liable for punishment and were directed to be kept in civil prison for a term of six months until they demolish the unauthorized construction themselves and pay the compensation to the tenants, if any, through judgment/ order, dated 29-5-1996.
5. Learned counsel for the respondent raised preliminary objection that the appeal was not maintainable as a matter of right. According to him, Article 185 of the Constitution does not provide a right of appeal against the impugned order passed by the High Court. He, however, conceded that civil petition for leave to appeal can be filed and this Court is empowered to convert this appeal into civil petition and decide the same accordingly.
6. We have heard learned counsel for the parties on the question of maintainability of appeal against the impugned order. The original order in the nature of temporary injunction, dated 29-5- 1995, the violation of which was complained, was passed by the High Court on the application under Order XXXIX, Rules 1 and 2, C.P.C., therefore, the decision as to maintainability of this appeal depends upon the determination of the question as to what extent the provisions of the Code including the provisions relating to substantive right of appeal contained in the said Code are applicable to Constitutional proceedings under Article 199 of the Constitution relating to civil matters.
7. In the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), these questions have been adequately dealt with and answered. It has been held that proceedings under Article 98 of the Constitution of Pakistan, 1962 before the High Court concerning civil matters are civil proceedings and the Court while dealing with such matter, exercises original civil jurisdiction and by virtue of section 117 and preamble of Civil Procedure Code, the provisions of the Code including those conferring substantive right of appeal or review are applicable to such proceedings except those the application of which has been expressly excluded. Section 117 of the Code provides that the provisions as contained in Parts IX and X (ibid) would not apply to proceedings before the High Court in exercise of original civil jurisdiction. Section 121, C.P.C. Also provides that in connection with original civil jurisdiction of the High Court, provisions of sections 16 and 17 ibid would also not apply. Order XLIX of the Code provides that the following provisions ibid would not apply in such proceedings before the High Court: -- "(1) rule 10 and rule 11, clauses (b) and (c) of Order VII;
(2) rule 3 of Order X;
(3) rule 2 of Order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relate to the manner of taking evidence of Order XVIII;
(5) rules 1 to 8 of Order XX; and
(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum), and Rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction."
8. We have examined the Code elaborately in order to find out whether applicability of any other provision of the Code had been excluded to such proceedings before the High Court and find that except the above mentioned provisions of the Code, the applicability of no other provision has been excluded, therefore, it can safely be held that all the other provisions of the Code are applicable to proceedings under Article 199 of the Constitution before the High Court in respect of civil matters. This being so, the High Court was empowered to issue temporary injunction in such proceedings under Order XXXIX, Rules 1 and 2, C.P.C. And also vested with the power to impose penalty under Order XXXIX, Rules, 2, 3 (ibid) for violation thereof. Section 104 of the Code read with Order XLIII, Rule 1(r) provides that appeal lies against such an order and by virtue of section 106, the same would lie before the Court where the appeal in case of decree of the Court passing the order would be competent, as such, the present appeal is maintainable against the impugned order, therefore, the objection raised by the respondent is hereby repelled.
' It may be mentioned here that apart from Article 185 of the Constitution, by virtue of Article 175 (ibid), this Court is vested with the jurisdiction to entertain and hear appeals provided under any law.
9. We have been taken through the record by the learned counsel for the appellants in his endeavour to establish that no violation of the injunction order, dated 29-5-1995 had taken place.
Since the interim order was for maintenance of status quo, therefore, in order to ascertain its real scope, we have reproduced in extenso the prayer made in the application in relation to which the same was passed because the said order would cover all matters Mentioned in the prayer. It is very much clear that the appellants were restrained from raising construction over Survey No,641, Deh Naheki, Taluka Tando Allah Yar and the other area mentioned therein. The High Court appointed as local commissioner who admittedly visited the spot in the presence of the appellants and made report that the construction in dispute raised by the appellants was in violation of the said order. This finding was found to have been corroborated by the report of the Nazir of the Civil Court, Tando Allah Yar in which Court for similar complaint, against the appellants, a suit was also pending.
10. Learned counsel for the appellants miserably failed to satisfy us that the findings of the High Court suffer from any illegality or legal flaw such as misreading of the material brought on the record. We have also noticed that at the spot, the attitude of the appellants along with their associates with the local commissioner who was a representative of the Court was not proper and amounted to contempt of the Court.
11. Learned counsel for the appellants after arguing the case when pointed out that violation of the interim order had been proved, however, stated that the appellants in order to establish their bona fides and good faith and to show respect for the Court, are ready to demolish the construction raised in violation of the order at their own expenses under the supervision of the Municipal Corporation and settle the matter of payment of compensation, if any, to the tenants in case the said tenants claim the same and pray that the direction to keep them in civil prison may be set aside.
12. In order to give opportunity to the appellants to establish their bona fide of the plea that they have respect for the Court, we are inclined to accept this offer. The direction of the High Court in the impugned judgment that the appellants shall be detained in civil prison is hereby held in abeyance till such time they demolish the construction raised in violation of the interim order, dated 29-5- 1995 of the High Court under the supervision of the Municipal Corporation at their own expenses and settle the matter of payment of compensation to the tenants, if any, as ordered by the High Court within two months of the production of certified copy of this judgment before the Municipal Corporation Authorities which shall further be regulated and controlled by the learned Senior Civil Judge, Tando Allah Yar who shall see that this undertaking has been complied with smoothly without any hindrance which shall submit report of its compliance to the High Court of Sindh. In case, the appellants are found to have fully acted upon their undertakings, the order for keeping them in civil prison shall stand set aside. In case, it is reported that the appellants are not cooperating in the demolition of the construction as undertaken by them, the order/ direction for keeping them in civil prison and demolition of construction shall stand revived and the same shall be executed in accordance with law. The conduct of the appellants and their associates towards the local commissioner though having been found to be not proper and amounted to contempt of Court but we would refrain from awarding punishment to them finding that at the earliest opportunity in the reply filed by them, they had tendered unconditional apology which is hereby accepted in order to give them an opportunity to reform themselves.
13. In the above terms, this appeal shall stand disposed of. No order as to costs.