A suit for injunction was instituted by Abdul Hameed, the predecessor-in-interest of the petitioners which was accompanied by an application under Order 39, rules 1 and 2, C.P.C., for the grant of temporary injunction. On 9-4-1992, the trial Court ordered the maintenance of status quo. It was on 16-4-1992 that an application was filed by late Abdul Hameed alleging violation of the order of status quo and for proceeding against the respondent/defendant and under the law. That application was still pending when another application was filed on 23-7-1992 alleging continuous violation of the Court's order. These miscellaneous matters were still pending when on 1-10-1992 the respondent/defendant made statement before the Court that he would of carry out any construction in the premises and the status quo will be maintained. In view of that statement, the trial Court proceeded to dispose of the suit having become infructuous. It was, however, ordered that the respondent/defendant will be bound by his statement and that proceedings of contempt will continue. Abdul Hameed challenged that order of the trial Court in appeal which was dismissed by the learned Additional District Judge, Faisalabad, on 19-4-1995. The matter was then assailed before this Court through Civil Revision No-1856-D of 1995 which revision petition was dismissed by a learned Judge of this Court on 6-2-2002. The matter about disposal of the suit statedly concluded with the dismissal of the revision petition. It was, however, observed that trial Court had already "directed that contempt proceedings will proceed". Another application alleging violation of order dated 17-10-1992 (by which the suit was disposed of having become infructuous in view of the statement made by the respondent/defendant), was filed. While litigation qua order dated 17- 10-1992 was pending in the application for proceedings for contempt following issues were framed on 24-11-1992:--
(1) Whether the respondent has committed any violation of interim stay order dated 9-4-1992? If so its effect? OPA
(2) Relief.
These issues were statedly qua the first application filed by the petitioners On 29-3-1994, the issues pursuant to the and application were framed i.e.:-- (1)Whether the application is mal fide? OPR (2)Whether the respondent violated the order of Court? OPA (3)Relief.
An additional issue was framed on 21-6-1995 i.e. Issue No.2-A, whether the report of Local Commission is liable to be set aside? OPA.
On 16-11-1996, another issue was framed: Whether the respondent violated the order of the Court dated 17-10-1992? OPA The trial Court after proceedings in the matter eventually dismissed the application under Order 39, rule 2(3), C.P.C. Vide judgment dated 14-10-2000 where against appeal filed by the appellants has been dismissed by the learned Additional District Judge through his judgment dated 7-2-2002, which has now been assailed through this revision petition. Since Civil Revision No.2168 of 2002 concerns the same parties, same subject-matter and arises out of the same proceedings the same would also stand disposed of through this judgment.
2. It is contended by the learned counsel that the two Courts below have failed to comprehend the controversy and the evidence led by the petitioners in the matter has been ignored. It is contended that an important issue which was framed on 16-11-1996 has not been adverted to by either of the Courts below which renders their judgments illegal. The learned counsel for the respondent has endeavoured to support the judgments of the two Courts below and contends that the matter has been considered by the trial Court as also the Appellate Court quite elaborately which needs not be interfered with by this Court.
Since the case has been argued by the learned counsel for the parties at quite some length, it has been treated as a regular notice case and being disposed of accordingly.
3. As is reflective from the background of the contempt proceedings, stated briefly in the preceding part of the judgment, the petitioners had been alleging violation of the court's orders quite vigorously. There was an allegation of violation of the interim order of temporary injunction passed by the Court as also the final order by which the suit was disposed of on 17-10-1992. Besides the other issues which have been reproduced above, an important issue was framed on 16-11-1996 as to "whether the respondent violated the order of the Court dated 17-10-1992". The perusal of the judgment of the trial Court as also of the Appellate Court would show that this issue was not at all referred or adverted to while deciding the matter by them. This important issue escaped their notice. The learned trial Court was obliged in view of rule 5 of Order 20, C.P.C. To advert to and record findings on each issue with reasons, I likewise was the duty of the Appellate Court in view of rule 31 of Order 41, C.P.C. Due application of mind to the points requiring determination was excepted. In the instant case an important point for determination had converged into issue as to whether order dated 17-10-1992 had been violated by the respondent: No determination whatsoever has been made by either of the Courts below qua the same. In Ali Muhammad v.
Muhammad Hayat and others 1982 SCM R 816, the trial Court had failed to record finding on each and every issue separately. The judgment was set aside in revisional jurisdiction remanding the matter to the trial Court for decision in accordance with law. The judgment of the High Court was upheld by the Honourable Supreme Court of Pakistan, observing "The learned trial Court had disregarded the mandatory provisions of Order XX, rule 5, C.P.C. And, therefore, had acted in exercise of his jurisdiction with material irregularity. The High Court in exercise of its revisional jurisdiction was competent to make such order in the case as it thought fit". The necessary issue in the instant case since has remained undecided by the Courts below, their judgments are not sustainable in law and are to be set aside remanding the matter to the trial Court for rewriting judgment after hearing the parties as held in the above case of Ali Muhammad (supra).
H.B.T./A-929/L