1. ' Listed application (C.M.A. No.1949 of 2001 under sections. 3 and 4 of Contempt of Court Act, 1976 read with Order 39, rule 2(3), C.P.C.) has been filed by the plaintiff, against Shoaib Yousaf Mapara, the defendant No.1, Malik Muhammad Anwar, the defendant No.2 and one Si. Shahid Shah.
2. ' It is prayed, inter alia, that the contemners be sent to prison, for the attachment of bungalow with .Direction to deposit the amount withdrawn by them from the Court of 1st Rent Controller Karachi
(West) in violation of order dated 4-8-1998 for committing breach of injunctive order of this Court.
3. ' Brief facts appear to be that, the plaintiffs claim to have acquired Suit Property from, defendant No.2, against whom a judgment and decree was passed in a Suit No.129 of 1992 by the Banking Tribunal Karachi.
4. ' It is averred that, defendant No.2 in order to satisfy the judgment and decree passed by the Banking Court against him, agreed to assign the suit property in favour of the plaintiff. Under a deed of assignment dated 10-2-1994, Suit Property, was assigned in favour of the plaintiff, for a total consideration of Rs.33,60,000 in addition to clearance of Bank's loan. It is averred that, the plaintiff paid the entire consideration, consequently a deed of assignment was also got registered.
5. ' It was further averred that the defendant No.1 who was tenant in the Suit Property, instead of attroning to the plaintiff, filed a suit to protect his possession. Said suit was disposed.Of on the statement of the plaintiff that tenant will not be dispossessed without due process of law. It appears that, defendant No.1, in order to protect his tenancy rights filed Miscellaneous Rent Case No.160 of 1995 and started depositing rent in favour of the plaintiff as well as the defendant No.2. In turn the plaintiff, also filed ejectment proceeding against the defendant No.1 on the ground of default, defendant No.2 made effort to join in rent proceedings, filed an application under Order 1, rule 10, C.P.C. His application was dismissed, the order of the Rent Controller dismissing the application for his joinder was maintained up to the Honourable Supreme Court of Pakistan.
6. ' It is the case of the plaintiff that, to deny fruit of ejectment order and the possession of the Suit Property, the defendants Nos.1 and 2 in collusion with each other entangled the plaintiff in frivolous litigation. Defendant No.2, also filed a Suit No.1068 of 1997, for cancellation of assignment deed. Said suit is also pending and, the plaintiff has been put to terms not to create third party interest in the suit property.
7. ' In the suit in hand, the plaintiff has sought declaration of his title and consequential relief against the defendant No.1 (the tenant) not to pay any rent to the defendant No.2. Plaintiff has also filed C.M.A. No.4728 of 1998 under Order 39, rules 1 and 2, C.P.C., praying for interim relief to the above effect.
8. ' C.M.A. No.4728 of 1998 was heard and decided vide order dated 4-9-1998. Operative part of the order reads as follows;-- "The dispute in the suit relates to the competence of the defendant No.3 to execute a deed of assignment in favour of the plaintiff and unless evidence is recorded the respective contention of both the parties .At this interlocutory stage cannot be finally dealt with. It will, therefore, be in the interest of all the parties that the rent of the suit property is preserved.
9. ' Accordingly, the defendant No.1 who is tenant in the suit property is directed to continue depositing the rent with the Rent Controller in M.R.C. No.160 of 1998 as is presently being done by him. However, neither the plaintiff nor the defendant No.2 will be entitled to withdraw the rent deposited by the defendant No.1 with the Rent Controller till final disposal of the suit."
10. ' It is, in respect of the order reproduced above, breach and violation at the hands of the alleged contemners, is claimed.
11. ' Learned counsel for the plaintiff, Mr. Rashid Rizvi, contended that, by above referred order, Court had restrained and bound down both, the plaintiff and the defendant No.2 not to withdraw the amount of rent and, at the same time directed the defendant No.1 to continue to deposit the rent.
12. According to him, the defendants Nos.1 and 2, since very beginning were in league and collusion with each other. In order to defeat the right and interest of the plaintiff, and in violation of the restraining order, moved an application before the learned Rent Controller and managed to withdraw the rent amount, by swearing and filing false affidavit and documents. It was falsely alleged that, no dispute is pending between the parties whereas, on the relevant date, a dispute was pending before the Honourable Supreme Court, as well as Rent Case and an F.R.A. No.31 of 1991 were also pending. According to Mr. Rizvi, when such withdrawal of rent, came into the knowledge of the plaintiff, facts were bought to the notice of the learned Rent Controller. Who after notice to the parties and seeking verification of record from the Sub-Registrar Office, found that the purported registered Power of Attorney dated 13-5-1999 allegedly executed by the plaintiffs in favour of defendants No.3, filed by the defendants Nos.1 and 2 was forged. Accordingly, the F.I.R.
13. Was registered against the defendants Nos.1 and 2. They were arrested and later, released' on bail.
14. Mr. Rashid Rizvi contended that both the defendants Nos.1 and 2 have committed serious breach and violations of injunctive order, are liable to be committed severally for the same. He, further urged that, all amount withdrawn, may be restored and defendant No.1 be directed to deposit the rent till disposal of the suit. In support of his contention he has placed reliance on Bakhtawar v.
15. Amin 1980 SCM R 89; Muhammad Aslam v. Mahmood Ali PLD 1992 SC 104 and Emirates Bank International Ltd. v. Adamjee Industries Ltd. 1993 CLC 489.
16. ' Syed Sami Ahmed learned counsels for defendant No.2 contended that, suits and counter suit are pending between the parties, which suits were settled and compromised. He further urged that, even this suit at one point was being withdrawn as part of settlement, through C.M.A. No.7487 of 2001. But, said application was dismissed on technical ground. He further urged that, the plaintiff's attorney Abdul Karim, executed sub-power of attorney, in favour of one Muhammad Anis, who settled all the controversies between the parties. Mr. Sami contended that, Mr. Muhammad Ali Jan, Advocate, represented the sub-attorney on the relevant date. According to him, in view of the over all settlement between the parties as detailed by him in para 6 of his counter-affidavit, the rent was withdrawn, no contempt as alleged was committed by him, the application is liable to be dismissed.
17. ' Mr. Muhammad Ali Jan, appearing for plaintiffs Nos.3 and 4 controverted the assertion of Syed Sami Ahmed. He emended that C.M.A. No.7487 of 2001 was not filed by him, in fact, on the date of hearing, on his pointation, that, there is no authority of said Anis, on record to withdraw the suit, accordingly the application was dismissed on this ground alone on 27-8-2002. He further points out that, mischief is manifest from the fact that the restoration of said application, was not filed by the said attorney but, by defendant No.1, which restoration application was also dismissed with warning to the counsel.
18. ' Mr. Muhammad Ashraf Kazi, appearing for the tenant/defendant No.1, contended that, since the matter was compromised between the parties he was led to believe that, no dispute remains, therefore, no objection for the withdrawal of rent. As to payment of current rent is concerned, Mr. Kazi, contended that it is pursuant to settlement between the parties the amount of rent is being paid to defendant No.2.
19. ' Mr. Ashraf Kazi, therefore, urged that, where a person has offered proper explanation, the alleged act of omission of commission cannot be classified as contumacious.
20. ' According to him, unless it is established that the defendant No.1 deliberately by-passed the direction of this Court; no proceeding for contempt would lie, according to him the controversy can only be resolved once the evidence is led and recorded. In support he has placed reliance on M.O.
21. Ghani v. A. N. M. Mahmood PLD 1966 SC 802; Bhawal v. State PLD 1962 SC 476.
22. ' Rashid Rizvi, exercising right of rebuttal contended that, the Power of attorney produced before the learned Rent Controller, was found to be fictitious by the Registrar T. Division, therefore, alleged power of attorney executed in favour of Sub-attorney Muhammad Anis, has no legal sanctity at all, Mr. Rizvi, produced original NIC (original seen and returned) of Abdul Karim (defendant No.3), who was also present in person, to demonstrate that, some fictitious person by his name was produced before the Registrar. As the photograph attached on the Power of Attorney, on the basis of which sub-power of attorney was got registered, is not that of the defendant No.3, Abdul Karim, present in Court. He further points out that, the alleged iub-attorney, Muhammad Anis never appeared before any Court. According to Mr. Riavi, defendant No.1 in active connivance with defendant No.2 in a calculated manner had withdrawn the rent. The collusion between them, it was asserted, could be ascertained from the fact that, the restoration application, was filed by none other then the defendant No.2.
23. ' The appeal against the order of the learned Rent Controller, directing registration of F.I.R., against the defendants (Contemners) was also dismissed. Rebutting the arguments of Mr. Kazi Ashraf, that defendant No.1 acted in good faith and no contempt has been committed. It was urged that, the moment defendant No.1 acquired knowledge that, such compromise application and or the power of attorney etc were fictitious, he should have reverted to the direction of this Court, for deposit of rent. It is stated, till date, in negation of the direction of this Court, defendant No.1 is paying rent to the defendant No.2, which shows that, he is in active conniving and league with the defendant No.2.
24. ' I have heard the arguments and perused the record.
25. ' The orders of this Court dated 4-8-1998 as reproduced above in the narrative, are clear and unambiguous, the tenant/defendant No.1 was directed to continue to deposit the rent in M.R.C.
26. No.160 of 1998. At the same time, plaintiff and defendant No.2 were directed not to withdraw the rent.
27. ' From the documents available on record, it appears that, application for withdrawal of rent was filed on behalf of defendant. No.2, Malik Muhammad Anwar, through his attorney Shahid Shah, the contemner No.3 on 19-8-1999. The (defendant No.1) Contemner No.2, Shoaib Mapara, gave an affidavit to the effect that he has no dispute with his landlord, Sunfune Investment, (a proprietorship concern of defendant No.2) and that no rent case is pending in any Court of law. In view of affidavits duly sworn on oath, learned Rent Controller, vide order dated 8-10-1999 allowed the defendant No.2 to withdraw a sum of Rs.10,20,000 on 8-10-1999 and further sum of Rs.1,20,000 on 16-12-1999.
28. ' I have perused copy of the judgment in F.R.A. No.31 of 2001, from the record it appears, that F.R.A.
29. No.31 of 2001, was pending on 19-8-1999 when an affidavit was sworn by defendant No.1, before the learned Rent Controller to the effect that, no dispute is pending with the landlord. The dispute was pending in First Rent Appeal referred to above. Even in penultimate paragraph of the judgment, in F.R.A. No.31 of 2001, it was observed that:-- "In view of the matter there is no dispute about of status of respondent (defendant No.1 herein) as tenant and appellants (plaintiff herein) have produced cogent evidence in support of plea of ownership of demised premises and have also served a notice under section 18 of the Ordinance, intimating the respondents where after relationship of landlord and Tenant have been established between the parties. There appears to be a dispute between appellant and previous owner about.
30. Payment of sale consideration which would be decided by High Court in Suit No.1068 of 1997 beside cancellation of document and alternative relief of recovery of Rs.1,85,00,000 has been set up."
31. (Words in (-) added).
32. ' I have examined copy of the order in C.P.L.A. No.429-K of 1997 placed on record, it appears, leave was refused on 28-1-1998, which shows that the C.P.L.A. Was not pending on the relevant date, before the Honourable Supreme Court. However, it is evident, that in Rent Case No.5 of 1996, under section 15 of SRPO, 1979 judgment was given on 2-9-1998, F.R.A. No.678 of 1998 (New No.31 of 2001) was pending, as the same was decided on 14-11-2001. On the face of such fact, it is apparent, that the affidavit dated 2-8-1999 sworn and filed by the defendant No.1 and by and on behalf of defendant No.2, before the learned Rent Controller was false.
33. ' From the order dated 5-3-2001, of the learned 1st Rent Controller, Karachi (West) in M.R.C. No.106 of 1995, directing registration of F.I.R., prima facie shows that, defendants Nos.1 and 2 employed unfair means to defeat and flout the order of this Court. The defendant No.1 active connivance with defendant No.2 withdrew rent on of Rs.10,20,000 on 8-10-1999 and Rs. 1 ,20 ,000 on 16-12-1999 from the Court of 1st Rent Controller Karachi, (West) against the direction of this Court dated 4-8-1998.
34. ' This Court called Nazir Report in M.R.C. No.160 of 1995, on 29-1-2003. Nazir report dated 17-2-2003 was received on 18-2-2003; which show that, lastly the rent was deposited on 27-9-1999. No rent has since been deposited in the M.R.C. The defendant No.1 in his counter-affidavit to the listed application, in para.35, stated:-- "that the defendant No.1 is not party to the alleged forged power of attorney, and the defendant No.1 is not the signatory of the said Power of Attorney or a witness, therefore, the application under section 3 and 4, of the Contempt of Court Act, 1976 read with Order 39, rule 2(3) and section 151, C.P.C. Is fabricated, baseless, and concocted one which is liable to be dismissed."
35. ' When defendant No.1 asserted that, he is not privy to the forged power of attorney, then in all fairness, the moment such fact or controversy came to his knowledge, he ought to have immediately deposited the rent in the rent case or sought further direction from this Court. It is matter of record that issue of relationship of landlord and tenant as between defendant No.1 and the plaintiff has been decided in affirmative, yet the defendant No.1 chose to flout the order of this Court and continues to pay monthly rent to the defendant No.2. I have perused the Counter- affidavit of the Contemner, Shoaib Yousaf Mapara, running into great detail over 15 pages and 35 paragraphs, no where the deponent had disputed or denied that the "affidavit of no objection" sworn and filed in M.R.C. No.160 of 1995 was based on incorrect fact. He has given evasive reply to the serious allegations of connivance with the defendant No.2, made in paras. 9 to 11 of the Contempt Application.
36. ' Likewise the defendant No.2, who was also restrained to withdraw the rent, managed to withdraw the same in the manner stated above, and continues to realize the same in utter disregard to the order of this Court.
37. ' Contemners Nos.1 and 2 listed in the application have prima facie made themselves liable to be committed for disobedience of direction contained in Order dated 4-8-1998.
38. ' Contention of Mr. Sami Ahmed, that the plaintiff have in fact entered into a compromise, made an application for withdrawal of the instant suit, which Application was dismissed on wrong assumption, by the Court that, Sub-power of attorney, was not on record. Such contention is not substantiated from record.
39. ' I have examined such contentions. Chronology of the event appears to be as follows;--
(i) C.M. No.1949 of 2001 for contempt under order 39, rules 1 and 2, C.P.C. Filed on 12-3-2001.
(ii) C.M.A. No.7487 of 2001 under Order 23, rule 1, C.P.C. Filed on 15-10-2001, by Muhammad Anis; purported sub-attorney of the plaintiffs,
(iii) Above application was dismissed on 15-10-2001, on the ground that "There is no proof to show that Muhammad Anis, was the sub-attorney of the plaintiff"
(iv) Sub-power of Attorney was first time placed on record, alongwith Counter-affidavit to contempt application, filed on 13-6-2002, though in between the defendant No.2 had filed C.M.A.
40. No.9063 of 2001 (filed on 3-12-2001 dismissed on 11-12-2001) and C.M.A. No.227 of 2002 (filed on 10-1- 2002 dismissed on 6-2-2002).
41. Disobedience of the Court order is indeed a serious matter, contumacious conduct of the Contemners call for stern action.
42. ' It is duty of all the litigants more particularly party to the suit to obey the orders of the Court. When a Court pass an order or gives any direction, putting them on terms aimed at regulating the conduct of the parties or preservation of the subject matter of the suit. Such order or directions are to be followed in letter and spirit without much a do. In case a party considers that any injunctive order is causing inconvenience of a grater magnitude or that circumstances have changed to warrant variation, modification or recall of such an order, then the remedy is provided under Order 39, rule 4, C.P.C. Itself. Any party affected by such an order may seek variation and modification of the order from the Court that has passed the injunctive order. It is not at the whims and fancy of either of the party to act contrary to the directions and orders of the Court. In case a party acts contrary to the direction given by the Court or varies the terms and condition of any Order to suit its own convenience then such party does so at its own peril and consequences. It was so held by the apex Court, in the case of Bakhtawar 1980 SCMR 82 (at page 92) supra. At page, 92 it was observed tha`-- "It is well settled that when by contravening an injunction order the party against whom the order is passed has done some thing for its own advantage and disadvantage for the other party it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood as if the order had not been contravened."
43. ' Court may also attach property of the person guilty of such disobedience and may also detain such person for a term not exceeding six months. Thus the Order 39, C.P.C. Is a complete code, regulating grant, discharge, enforcement as well as penal consequences for the disobedience. In presence of such specific provision, ordinarily provision of Contempt of Court Act, 1976, or for that matter Article 204 of the Constitution, 1973 should not be invoked. (See Case of M.O. Ghani PLD 1966 SC 802 at page 811, followed in Emirates Bank Ltd. 1993 CLC 489 at page 499.
44. ' Above case was followed in the case of Muhammad Aslam (supra) and this Court maintained the conviction recorded in contempt proceeding. In case of Emirates Bank International Limited (supra) Mr. Justice Wajihuddin Ahmed, as he then was, while dealing with the contempt, in the first instance directed restoration of the propertY before drawing up the contempt charges.
45. ' Mr. Rizvi, pressed the above case into service to seek direction for the deposit of the rent withdrawn by the defendant No.1 and so far collected by him. He solicited further direction for the deposit of future rent in this Court. In contra, Mr. Ashraf Kazi, emphasis that charge should be framed and after recording of the evidence any further order could be passed.
46. Under Order 39, C.P.C. Courts regulate the conduct of the parties during pendency of the proceedings may also order interim sale, detention, preservation or inspection of subject matter of the suit, direct deposit of money. On application, Court may discharge, vary or set aside the Injunctive Order. In case of disobedience or of breach of any term of injunctive Order Code of Civil Procedure, does not lay down any precise procedure for the trial of the persons guilty for the disobedience of the injunctive order passed by the Civil Courts in terms of Order 39, rules 1 and 2, C.P.C.
47. Looking at the gravity and nature of the disobedience, Court may evolve its own procedure, such procedure, however, must comnWnsurate with minimum standard of principal of natural justice.
48. Since the injunctive order is visited by penal consequences of attachment as well as detention, alleged Contemner must at least be given a notice to answer the charges of disobedience and as far as possible, as observed above, minimum standard of principal of natural justice are to be adhered. By adherence to minimum standard of principal of natural justice, it does not necessarily mean that, Court should inevitably embark on full fledged trial with elaborate enquiry and record detail evidence. In some case, matter could be decided on affidavit, counter-affidavits, and rejoinder and admitted material, if any brought on record. In some cases, site inspection and commissioner's report may be conductive, and in appropriate cases, even evidence may also be recorded. No universal formula could be prescribed. The Court may adopt and follow such procedure in it discretion as the circumstances of each case demand.
49. In the instant case, in my opinion, no evidence is required to be recorded no further enquiry is called for, defendant No.2 despite injunctive order of this Court dated 4-8-1998 had withdrawn the rent from the Court of Rent Controller and still continues to receive the rent from the defendant No. 1 . The defendant No.1 was directed by this Court "to continue to deposit rent with the Rent Controller in MRC No.160 .Of 1998". Despite such restraining order and directions, defendant No.1 has not only consented to the withdrawal of the rent by the defendant No.2 but is continuing to pay the rent to the defendant No.2.
50. ' Fact that withdrawal of rent from the Court of Rent Controller was apparently effected by employing forged document/power of attorney are sufficient aggravating circumstances to commit the defendants Nos. 1 and 2 liable for the disobedience of the order of the Court.
51. ' Under circumstances of case, no evidence is required to be recorded nor, there is any need to frame any charge. The Contemners were given notice of the contempt application. They have filed their respective counter.-affidavit duly supported by documents, eminent counsels were heard on their behalf. Neither of the Contemner has expressed any remorse nor expressed their intentions to restore the status quo ante. On the contrary they have tried to justify their action, are the circumstances. ' sufficient to commit them severally for the disobedience.
52. ' In the first instance, as held by the apex Court, in the case of Bakhtawar and by this Court in the case of Emirates Bank International Limited above, I would direct the Contemner No.2 to deposit the entire amount of rent withdrawn from the MRC No.160 of 1995 within 15 days with the Nazir of this Court. He is further directed to deposit such rent as has been received by him from the defendant No.1 till date within 15 days.
53. ' Contemner No.1 is also directed to deposit entire arrears of rent at the rate of Rs.60,000 per month, with effect from October 1995 up to date, after adjusting the amount of rent, deposited in MRC No.160 of 1995, and paid to the Contemner No.2. Entire arrears if any to be deposited within 15 days from to day. He shall continue to deposit monthly rent at the rate of Rs.60,000 with effect from January 2004 onward with the Nazir of this Court regularly on or before 10th of each succeeding month till directed otherwise.
54. ' Nazir is directed to invest amount deposited by the Contemners Nos.1 and 2 in Some profit- bearing scheme. Monthly rent deposited by the Contemner No.2 may be invested quarterly in profit bearing scheme fate of the amount will be decided at the time of final decision.
55. ' As observed above, the Contemners Nos.1 and 2 have flouted, disobeyed and committed breach the orders and direction of this Court dated 4-8-1998 and continued to flout the same for almost five years, deposit having been put to notice by way of listed application, under Order 39, rule 2(3), C.P.C. Direct them to be taken into custody and be committed and detained in prison for a term of two weeks.
56. ' At the moment, in my opinion, there is no sufficient material on record to show that Contemner No.3, S.J. Shahid Shah, also connived to flout the Orders of this Court dated 4-8-1998. It appears that, he only acted as attorney for the Contemner No.1, who has since been ordered to be committed to prison. For the time being no actions are called for as against Contemner No.3. It may however, be made clear, if at the trail, it is established that he has privy to disobedience and aided in flouting the order of this Court dated 4-8-1998, he may be commuted for the same.