' This civil revision has been preferred against the judgment and decree, dated 5-5-1988 passed by the learned Additional District Judge, Chakwal, in an appeal upholding the judgment and decree, dated 5-12-1987 passed by a learned Civil Judge, Chakwal, in a suit for declaration.
2. The dispute between the parties pertained to the land measuring 39 Kanals, 15 Marlas, which was gifted by Mst. Sabaj Khatoon, in favour of Manzoor Hassan petitioner through Mutations Nos.699 and 746 sanctioned on 25-11-1912. The petitioner as well as the respondents is the legal heirs of said Mst. Sabaj Khatoon who died on 25-12-1979. The respondents filed a suit for declaration on 13-10- 1982 questioning the validity of the gift, which was dismissed by the learned trial Judge vide judgment, dated 5-12-1987. The appeal filed by the present respondents against the dismissal of their suit succeeded and the Appellate Court remanded the case to the trial Court for decision afresh with the following observation:-- "I am, therefore, unable to hold as to which of the parties is in possession of the suit-land. If respondent No,1 is found to be out of possession, the impugned gift can be declared invalid on the short ground or at least the appellant can be allowed to revoke the gift to the extent of her share. If, on the other hand, the appellant is found to be out of possession and the gift mutations are proved to have been sanctioned at the instance of the appellant and her deceased mother, her suit can straightaway be dismissed. Under these circumstances, the impugned judgment and decree are not maintainable and the appeal can also not be decided in favour of either party for want of sufficient evidence on the factum of possession."
3. Learned counsel for the petitioner has contended that there was sufficient evidence relating to the respective possession of the parties but the Appellate Court without attending the evidence observed that it was not known that which party was in possession of the land. The learned counsel submitted that neither the petitioner nor the respondents made any request for additional evidence nor there was any need to bring on record such evidence, therefore, the Appellate Court instead of remanding the case to the trial Court was required to decide the appeal on merits. In support of his contentions, learned counsel has placed reliance on Liaqat Baig v. Board of Intermediate and Secondary Education, Multan through its Chairman 1987 CLC 2425, Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCM R 216 and Manzoor Hussain v. Malkhan Khewat No,40 through Shukar Din and 3 others PLD 1998 Lah.
172.
4. The respondents were being represented by Ch. Afrasiab Khan, Advocate, on 15-12-2000. Today despite repeated calls none has appeared on behalf of the respondents. The present civil revision pertaining to the year 1988 cannot be allowed to be pending unattended any further and the same is, therefore, disposed of on merits.
5. The examination of the record with the assistance of the learned counsel for the petitioner would show that the contention raised in support of this petition is not without force. There is sufficient oral and documentary evidence for disposal of the appeal on merits including the question of possession, therefore, the remand of the case to the trial Court for fresh decision after recording further evidence in the given facts was not proper. It is noticeable that neither any party prayed for the production of the additional evidence nor further evidence as required for the purpose of disposal of appeal. There being sufficient evidence available on the record for decision of the appeal, the Appellate Court instead of remanding the case to the trial Court should have pronounced the judgment itself. This civil revision is, therefore, allowed and the order of the remand passeu by the Appellate Court is set aside with the direction that appeal shall be decided on merits on the basis of evidence already available on record. The parties shall appear before the learned District Judge, Jhelum, on a date to be given by him either to appear before him or before a learned Additional District Judge. The Appellate Court shall make an effort to decide the appeal within three months.
2002 CLC 459 [Karachi] Before S.A. Rabbani, J MUZAFFAR HUSSAIN---Petitioner versus PROVINCE OF SINDH and 3 others---Respondents Constitutional Petition No,D-275 of 1999, decided on 25th July, 2001. .
(a) Constitution of Pakistan (1973)- ----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---Direction by High Court---High Court, in exercise of Constitutional jurisdiction, declared that the provisions of statute were liable to be declared invalid---Contention of the applicant was that the contemners did not act according to the direction passed by the High Court---Validity---Order passed by the High Court did not declare the provisions of law invalid and it was practically an advice to the main respondent viz. Province of Sindh through Secretary, Irrigation and Power ... "to act accordingly to repeal the said section"---Where the alleged contemners had no role to perform and they were not authorized to deduce their own interpretation to act on the order passed by the High Court, there was no violation committed by them'rendering them liable to action for contempt of Court-- -Application for the contempt of Court was dismissed in circumstances. [p. 462] A & C
(b) Contempt of Court Act (LXIV of 1976)--: ----Ss. 3 & 4---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)---Contempt application---Action provided under O.XXXIX, R.2(3), C.P.C.---Applicability---Application under Ss.3 & 4 of the Contempt of Court Act, 1976, was filed but the action sought through the same was one provided in O.XXXIX, R.2(3), C.P.C.---Validity---Such action could only be taken in case of. Disobedience in respect of injunction granted under O.XXXIX, R.2, C.P.C.--- High Court declined to take such action in application under Ss.3 & 4 of Contempt of Court Act, 1976 in circumstances. [p. 462] B Jhamat Jhetanand for Petitioner.
Nizamuddin A. Memon for Contemner No,
1. Suleman Habibullah, A.A.-G. For the State.
Date of hearing: 11th July, 2001.
' Constitutional Petition No,D-275 of 1999 was disposed of on 3-6-1999, by the Circuit Court, Hyderabad, alongwith many other similar petitions, through a short order with the following operative part: "In view of the foregoing we hold that section 5(1) of the impugned Ordinance read with the Schedule is repugnant to Article 25 of the Constitution and is liable to be declared invalid. The petitions are allowed to the above extent."
' The prayer sought in this petition was as under:-- "(a) Declare that the order abrogating/annulling the sanction order of irrigation water of petitioner and other co-owners having been passed without lawful authority and is of no legal effect.
(b) Permanent injunction to be issued restraining the respondents from acting upon the abovementioned schedule/order and in any manner from interfering with the irrigation water supply to the land and crops of the petitioner.
(c) Any other relief.
(d) Costs.
' After disposal of the Constitutional petitions in the manner mentioned above the petitioner filed Miscellaneous Application No,542 of 2001, under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976, with a prayer that properties of alleged contemners viz. Concerned Executive Engineer, S.D.O., Sub-Engineer and one Syed Mazhar Hussain Shah, be attached and they may be put in prison. It was further prayed that in the meanwhile they may be ordered to restore the direct outlet/watercourse of the petitioner.
' This miscellaneous application was heard by a Division Bench comprising Mr. Justice Shabbir Ahmed and Mr. Justice M. Mujeebudin Siddiqui. Division occurred in the Division Bench in the decision and, therefore, the matter was referred to me. Mr. M. Mujeebullah Siddiqui held that the application was misconceived and dismissed it with special cost of Rs,25,000.
' Mr. Justice Shabbir Ahmed observed that the mode of implementation/enforcement of order passed in Constitutional jurisdiction is through contempt proceedings akin to the provisions of Order XXI, C.P.C. And the position of the Bench was of an Executing Court. He is of the view that the application requires disposal on merits after hearing the parties.
' The Sindh Irrigation (Amendment) Ordinance, 1999 (VII of 1999) was under dispute in the petitions and its section 5(1) was found to be liable to be declared invalid. The Schedule annexed to the Ordinance under this section mentioned the sanction order in favour of this petitioner, though with an addition "Already cancelled".
' The proposition in the arguments of Mr. Jhamat, learned counsel for the petitioner/applicant, is that since his sanction was mentioned in the Schedule under the section declared invalid, the alleged contemners were bound to restore his direct outlet/watercourse and, for not doing so, they are liable to punishment.
' Mr. Suleman Habibullah, learned A.A.-G. Supported the view of Mr. Mujeebullah Siddiqui, J. And submitted that, for the same relief, the petitioner/applicant had filed a civil suit, but since his application for interim injunction was not allowed in the suit, he attempted to get the relief through the present application.
' The question is whether any order or direction of the Court has been violated by the persons named in the miscellaneous application. The short order disposing of the petition and the prayer in the petition, reproduced in the first para. Above, 'make it clear that the prayers were not granted.
' Clause (a) of Article 199(1) of the Constitution is the relevant provision under which the petition could be treated, although it was drafted like a civil suit under the Specific Relief Act. Under this provision, the High Court may either direct a person, in its territorial jurisdiction, performing functions in connection with the affairs of Federation, Province or local authority, to refrain from doing anything not permitted by law to do, or to do what is required by law, or the High Court may declare any act done or proceedings taken, by such person, to have been done or taken without lawful authority and that is of no legal effect.
' It is evident from the order disposing of the petition that no such direction was issued to the respondents or to the alleged condemners. It was, also, not declared that the order impugned through the petition was without lawful authority and of no legal effect. The order disposing of the petition was that section 5(1) of the impugned Ordinance, read with the Schedule, was repugnant to Article 25 of the Constitution and was liable to be declared invalid. It did not declare the section and the Schedule invalid. It was practically an advice to the main respondent viz. Province of Sindh through Secretary, Irrigation and Power to act accordingly to repeal the said section. Other respondents, as well as the alleged contemners, had no role to perform and they were not authorized to deduce their own interpretations to act on the said order of the Court. There is thus no violation committed by them rendering them liable to an action for contempt of Court.
'Another aspect of the case is that the miscellaneous application was filed under sections 3 and 4 of the Contempt of Court Act, 1976, but the action, sought through it, was one provided in Rule 2(3) of Order XXXIX, C.P.C. This action can only be taken in case of disobedience in respect of an injunction granted under Order XXXIX, Rule 2, C.P.C. There was, thus, no occasion for such an action.
'With these additional reasons, I respectfully agree with Mr. Mujeebullah Siddiqui, J., that the application for contempt of Court is misconceived and liable to dismissal. I am, however, unable to find a justification for imposition of special costs. The petitioner/applicant believed that he was granted relief sought by him as he was not aware of the legal technicalities. He filed an application under that belief. It cannot be inferred that his claim was false or vexatious to his knowledge. He is not, therefore, liable to pay special costs. Miscellaneous Application 542 of 2001 stands dismissed.