ASIF SAEED KHAN KHOSA, J.---This appeal tiled under section 10 of the Contempt of Court Act, 1976 is directed against the order dated 9-10-1995 passed by a learned Judge-in-Chamber in Criminal Original No,688-W of 1992.
2 The necessary facts giving rise to the present appeal are that respondent No,1 herein had tiled Writ Petition No,81 of 1990 before this Court seeking issuance of an appropriate direction to the effect that respondents Nos.2 and 3 herein as well as a learned Magistrate and two Station House Officers of different Police Stations may be restrained from pressurizing respondent No,1 to transfer his property in favour of respondent No,2 herein. On 7-1-1990 a learned Judge-in-Chamber seized of the said Writ Petition directed an Assistant Advocate-General to procure comments on the said Writ Petition from one of the respondents and then to assist the Court on the next date of hearing, i,e, 13-1-1990 at the preliminary stage. It was further ordered that status quo would be maintained 'till then' (apparently till the next date of hearing). Thereafter the hearing of that Writ Petition lingered on till 15-11-1992 >when the same was disposed of by another learned Judge-in-Chamber, It appears that during the pendency of that Writ Petition respondent No, 1 transferred the property in issue in favour of respondent No,2 through a registered sale deed and thereafter the said property was further alienated in favour of the present appellant. In that backdrop a petition was filed by respondent No, 1 before this Court seeking initiation of proceedings of contempt of Court as allegedly the said transfer of property had taken place during the subsistence of the above mentioned order regarding maintenance of status quo. On 9-10-1995 a learned Judge-in- Chamber seized of the said contempt petition declined to proceed against the alleged contemnors on account of their lack of knowledge about the status quo order issued by this Court but at the same time declared that registration of the sale deed in respect of the property in issue had taken place during the subsistence of the said status quo order and, thus, the same was of no legal effect and, therefore, the said registered sale deed stood invalidated on that score. It was further ordered by the learned Judge-in-Chamber 'the parties are restored to the position as prevailing on the date when the interim order was passed by this Court, i,e, 7-11-1990. That contempt petition was disposed of in those terms. Aggrieved of the said order dated 9-10-1995 the appellant has filed the present appeal.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. In support of this appeal it has been argued by the learned counsel for the appellant that according to the provisions of section 4 of the Contempt of Court Act, 1976 and also in terms of the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 while seized of a contempt petition the learned Judge-in-Chamber could either have convicted and sentenced the alleged contemners or could have decided not to proceed against them but the learned Judge-in-Chamber had no jurisdiction to invalidate transfer of a property through a registered sale deed even if such an alienation had taken place during the subsistence of a prohibitory order passed by a Court. In this respect the learned counsel for the appellant has placed reliance upon the cases of Mst. Saeeda Akhtar and others v. Lal Pin and others PLD 1981 Lahore 623, Darbari Ram and another v. Ghulam Farid-Fazal Karim and others AIR 1930 Lahore 858 and Sukhdeo Rai and others v. Ram Narain Rai and another AIR 1930 Allahabad 387(2). The learned counsel for, the appellant has further argued that the appellant had been condemned by the learned Judge-in-Chamber unheard and, thus, the cherished principles of natural justice had been flagrantly violated in this regard. As against that the learned counsel for the appeal heirs of respondent No,1 have maintained that this appeal is not maintainable hi view of the law declared by the Hon'ble Supreme Court of Pakistan in the case of West Pakistan Water and Power Development Authority through its Chairman v Chairman, National Industrial Relations Commission PLD 1979 SC 912. It has further been argued by them that an alienation of property in violation or disregard of an injunction order issued by a Court is of no legal effect and the same can be set at naught by a Court while seized of a contempt petition. In this regard they have placed reliance upon the cases of Muhammad Sabir Khan and. 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 and Muhammad Sharif, etc. v. Lahore Development Authority, etc. 1998 MLD 95.
4. After hearing the learned counsel for the parties and going through the relevant record we have entertained no manner of doubt that the present appeal is maintainable under section 10 of the Contempt of Court Act, 1976. It had been held by the Hon'ble Supreme Court of Pakistan in the case of West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 that the matter of contempt of Court essentially lies between the Court and the contemner and if in a given case the concerned Court has not felt persuaded to proceed against the alleged contemner in that regard then ordinarily an appeal would not be competent against such an order passed by the concerned Court. We have further noticed that their Lordships of the Hon'ble Supreme Court had expressly restricted the application of the observations made in the said judgment to the facts and circumstances of that particular case and the said observations clearly denotes that the observations made in the said judgment were not to be treated as those of general application. We may observe with respect that the rationale of the said judgment is quite understandable for the simple reason that if the Court concerned has not felt aggrieved of the conduct of the alleged contemner and if it has not felt persuaded to proceed against him in that regard then no outsider or a third party should or, can feel aggrieved of such an order so as to prefer an appeal in that regard under section 10 of the Contempt of Court Act, 1976. The position in the present case is, however, quit different inasmuch as in the case in hand although the learned Judge-in-Chamber had decided not to proceed against the concerned persons regarding the alleged commission of contempt of Court by them yet the learned Judge-in-Chamber had at the same time gone on to invalidate a registered sale- deed through the same order. In these circumstances the matter before the learned Judge-in Chamber had not remained confined to the issue of contempt of Court alone, which surely was restricted between the Court and the contemner, but the matter had travelled much beyond that and had seriously affected the rights of a party to the said contempt petition over a valuable piece of property. Looked at this context we,, have entertained no doubt that the person so affected, i,e, the present appellant indeed had not only a right, of appeal available to her under section 10 of the Contempt of Court Act, 1976 but also that the appellant was quite justified in filing this appeal .
5. The provisions of section 4 of the Contempt of Court Act, 1976 as well as the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 provide that a contemner can be convicted by the Court and can be sentenced with imprisonment and tine to the extent provided in the said provisions. No further jurisdiction has been conferred by the said provisions upon a Court seized of such a matter. According to Article 175 of the Constitution of 'the Islamic Republic of Pakistan, 1973 no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. In the cases of Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lahore 623, Darbari Ram and another v. Ghulam Farid-Fazal Karim and others AIR 1930 Lahore 858 and Sukhdeo Rai and others v. Ram Natain Rai and another AIR 1930 Allahabad 387 it had clearly been held that a sale of property brought at four in violation or disregard of a prohibitory order issued by a Court cannot be in validate through contempt proceedings. However, the cases of Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 and Muhammad Sharif, etc. v. Lahore Development Authority, etc. 1989 M LD 95 relied upon by the learned counsel for respondent No,1 had struck adifferent note in that regard and had laid down that such invalidation of an alienation of property could be achieved through contempt proceedings by invoking the provisions of Order XXXIX, Rule 2 and section 151, C.P.C. We are respectfully bound by the above mentioned judgment of the Hon'ble Supreme Court of Pakistan in this respect and, therefore, we have no reason to doubt the competence and jurisdiction of the learned Judge-in-Chamber to invalidate the registered sale deed in the present case. Be that as it may the question of propriety and advisability or otherwise of adoption of that course by the learned Judge-in-Chamber in the present case remains to be examined by us in the present appeal.
6. We have observed that the appellant before us had indeed been condemned unheard by the learned Judge-in-Chamber and it does not find any mention in the impugned order that the appellant had actually been served with any notice of the contempt petition or that she had refused or declined to appear before the learned Judge-in-Chamber in that regard. As a matter of fact a 'Service Certificate' available on the file of the contempt petition shows that the Office of this Court had brought it to the notice of Reader of the learned Judge-in-Chamber that the present appellant (respondent No,3 in the contempt petition) had not been served at all in connection with that contempt petition. In this view of the established position it is quite clear to us that the appellant had indeed been condemned unheard by the learned Judge-in-Chamber while passing the impugned order. Thus, the, question before us is whether we should remand the matter to a learned Judge-in-Chamber for reconsideration of the matter of invalidation of the registered sale deed in issue at a time when both the Hon'ble Judges passing the original status quo order dated 7-1-1990 and the impugned order dated 9-10-1995 have already retired or we should leave the matter of validity or otherwise of that registered sale deed to be decided by any other appropriate Court through appropriate proceedings.
7 In the above mentioned context we have noticed that the transaction in issue had taken place about eleven years ago and the appellant had acquired a vested right in the property in question through a registered sale-deed and invalidation of the said registered sale-deed by the learned Judge-in Chamber had divested the petitioner of her rights over the said property. If that registered sale deed is invalidated by this Court through a contempt petition by short-circuiting the normal process and procedure of the law in that regard then the appellant would be left with no right to have recourse to any Court of law with regard to her divesting of that property by this Court. In such a case the appellant shall not be able to file any suit in that regard before a Civil Court because the order of invalidation would have been passed by this Court and the appellant shall also have no right of appeal before the Hon'ble Supreme Court either as she shall have to seek leave to, appeal in that respect from the Hon'ble Supreme Court in terms of Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973. In all such ventures the appellant shall have no opportunity to establish through producing evidence that she was a bona tide purchaser of the property in question without notice of the status quo order issued by this Court. In this regard we cannot lose sight of the fact that the learned Judge-in-Chamber had himself found in the impugned order that the appellant had no notice of the prohibitory order passed by this Court on 7-1-1990. Such a determination of civil rights, nay Fundamental Rights, of a person over property leaving the affected person with no right of recourse to a Court of law has been found by us to be unwholesome and unpalatable in the circumstances of this case, to say the least. With these considerations in mind we have decided not to remand the matter to a learned Judge-in- Chamber and have found it to be advisable and prudent to leave the parties to have recourse to a .Civil Court in respect of validity or otherwise of the registered sale deed in issue so as to establish their respective claims regarding the same after leading their respective evidence, if so advised.
8. For what has been discussed above we have found the impugned invalidation of the registered sale-deed in issue by the learned Judge-in-Chamber through the impugned order dated 9-10- 1995 to be not only unjust and imprudent but also vitiated by condemning the appellant unheard.
This appeal is, therefore, allowed and the offending part of the impugned order pertaining to invalidation of the said registered sale deed is hereby set aside. The parties may have recourse to any other remedy available to them under the law in order to establish validity or otherwise of the said registered sale deed, if so advised.