Muhammad Asif Qureshi etc. vs Hakim Ghulam Murtaza etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN

BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.38 of 2019

Muhammad Asif Qureshi & others

Versus

Hakim Ghulam Murtaza & others

JUDGMENT

Date of hearing: 17.03.2026.

Petitioners by: Mr. Muhammad Maalik Khan Langah, Advocate.

Respondents by: Mr. Muhammad Bakhsh Khakhi, Assistant Advocate General.

Respondents No.1 & 3 ex parte.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant revision petition, the petitioners have assailed the judgment dated 24.10.2018, passed by the learned Additional District Judge, Jalalpur Pirwala, whereby the appeal preferred by respondent No.1 was accepted and the order dated 17.05.2018 passed by the learned Trial Court, convicting respondent No.1 under Order XXXIX Rule 2(3) CPC and sentencing him to six months simple imprisonment, was set aside.

2.Brief facts necessary for disposal of this revision petition are that the petitioners instituted a suit for permanent injunction with regard to the suit property, wherein an interim injunction dated 07.11.2009 was granted restraining respondent No.1 from interfering in their possession. Alleging that the said order was willfully violated despite due service and knowledge, the petitioners initiated proceedings under Order XXXIX Rule 2(3) CPC. After framing of issues and recording of evidence, the learned Trial Court, vide order dated 17.05.2018, found respondent No.1 guilty of deliberate disobedience of the injunctive order and sentenced him to six months simple imprisonment. Feeling

C.R. No.38 of 2019

aggrieved, respondent No.1 preferred an appeal which was accepted by the learned Appellate Court, leading to the present revision petition.

3.Learned counsel for the petitioners contends that the impugned appellate judgment is unsustainable in law as the same is the result of misreading and non-reading of material evidence. He argues that the learned Trial Court had returned findings on the basis of unimpeachable oral as well as documentary evidence, including the admission of respondent No.1 regarding service of the injunctive order, the report of the Local Commission, and bailiff proceedings, all of which conclusively established willful violation of the Court’s order. He further contends that the learned Appellate Court has interfered in a mechanical manner without pointing out any perversity in the findings of the Trial Court and has wrongly substituted its own view. Conversely, learned Law Officer has supported the impugned judgment by submitting that the evidence produced by the petitioners was not sufficient to prove violation beyond doubt. He further contends that proper procedure as prescribed under the Code of Criminal Procedure, 1898 has not been followed while convicting and sentencing the respondents, hence the decision of learned Trial Court is not legally sustainable.

4.Arguments heard. Available record perused.

5.It is an admitted position that an injunctive order dated 07.11.2009 was passed by the learned Trial Court in the suit for permanent injunction. The pivotal questions that arise for determination in the present matter are, firstly, whether respondent No.1 had due knowledge of the injunctive order in question and secondly, whether he willfully disobeyed the same so as to attract the penal consequences contemplated under Order XXXIX Rule 2(3) C.P.C., including the extent thereof. The said provision reads as under:-

“In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months, unless in the meantime the Court directs his release.”

C.R. No.38 of 2019

6.As regards the knowledge of the injunctive order, the learned Trial Court has recorded a categorical finding that the same was duly served upon respondent No.1. This finding is not only supported by documentary evidence on record but also stands fortified by the unequivocal admission of respondent No.1 during his cross- examination wherein he conceded that the order of injunction was served upon him through the Court process and that his signatures were obtained in acknowledgment thereof. Such admission constitutes the best possible evidence against its maker and conclusively established that respondent No.1 had knowledge of the restraining order.

7.Once knowledge is established, the next and more material aspect is the violation of the order. The learned Trial Court, after a comprehensive appraisal of evidence, concluded that respondent No.1 had, in fact, violated the injunction by interfering in the possession of the petitioners and raising construction over the suit property. This conclusion is primarily based upon the statement of AW-1, who categorically deposed about dispossession immediately after issuance of the injunctive order, coupled with the report of the Local Commission (Ex.A-1) and the bailiff proceedings which indicated continued interference at the spot. It is significant to note that the testimony of AW-1 on material particulars remained unshaken during cross-examination and no rebuttal was brought on record.

8.The report of the Local Commission (Ex.A-1), which was prepared pursuant to the directions of the Court, further lends corroboration to the petitioners’ version. Although the Local Commission may not have witnessed construction activity at the exact moment of inspection, yet the surrounding circumstances, including statements recorded at the spot and the subsequent bailiff proceedings, clearly indicate that the respondent was acting in disregard of the injunctive order. It is well-settled that violation of an injunction is not confined to a single isolated act but may be inferred from a series of acts demonstrating continuous defiance of the Court’s authority.

9.On the other hand, the defence put forth by respondent No.1 was not supported by any independent or convincing evidence. His claim of

C.R. No.38 of 2019

ownership on the basis of alleged transactions with the father of the petitioners remained unsubstantiated. Furthermore, his evasive responses regarding previous litigation, including suits for specific performance, which were allegedly dismissed, adversely affect his credibility. The learned trial Court, therefore, rightly disbelieved his version. The learned Appellate Court, however, reversed the well- reasoned findings of the Trial Court on grounds which, upon closer scrutiny, do not withstand judicial scrutiny. The emphasis placed by the Appellate Court on alleged inconsistencies between the pleadings in the suit and the contempt proceedings is misplaced. The essence of both proceedings was the assertion of possession by the petitioners and unlawful interference by the respondent No.1. Minor discrepancies, which do not go to the root of the matter, cannot dislodge otherwise consistent and credible version.

10.Similarly, the observation of the learned Appellate Court that the Local Commission did not witness ongoing construction at the time of inspection does not negate the case of the petitioners. The violation of an injunction is to be assessed in the totality of circumstances and not on the basis of a single snapshot in time. The learned Appellate Court, by isolating certain aspects of the evidence and ignoring the cumulative effect thereof, has clearly fallen into the error of misreading and non-reading of evidence.

11.The reliance placed by the Appellate Court on the subsequent dismissal of the main suit as infructuous is equally misconceived. The liability for disobedience of a Court order arises from the act of violation at the time when the order was operative. Such liability does not stand extinguished by subsequent developments in the suit. To hold otherwise would amount to undermining the authority of judicial orders and encouraging parties to flout the same with impunity.

12.As regards the contention that the proper procedure was not followed by the Court below in adjudicating the matter, it may be observed that no rigid or codified procedure has been prescribed for the determination of such applications. The requirement, however, is that the person alleged to be in violation must be made aware of the charge

C.R. No.38 of 2019

against him in clear terms, akin to the framing of a question or issue embodying the essential elements of the alleged misconduct, in line with principles governing quasi-criminal proceedings. In the present case, upon filing of the application by the petitioners seeking initiation of proceedings for disobedience of the injunctive order, the learned Trial Court called for replies from the respondents and framed issues which adequately encompassed the controversy between the parties. The respondents were, thus, fully conscious of the allegations regarding violation of the Court’s order. Learned counsel for the respondents has failed to point out any procedural illegality or irregularity in the manner the proceedings were conducted. Moreover, no case of prejudice has been made out. The record reflects that the parties were afforded full opportunity to adduce evidence, and there is nothing to suggest that the respondents were denied the right of hearing or fair trial. In the absence of any demonstrated prejudice or miscarriage of justice, the objection regarding procedural irregularity is devoid of merit and cannot be sustained. Reference can be made to Raja Talat Mahmood v. Ismat Ehtishamul Haq (1999 SCMR 2215), Ghulam Sarwar v. Ghulam Rabbani and 3 others (PLD 1992 Peshawar 130) and Haji Muhammad Hussain and 4 others v. Muhammad Abbas (2001 YLR 1767).

13.As regards the quantum of sentence, proceedings under Order XXXIX Rule 2(3) C.P.C. partake the character of quasi-criminal proceedings; hence, the discretion vested in the Court is to be exercised judiciously, with due care, caution, and a conscious regard to the principles governing imposition of punishment. The provision itself confers discretion upon the Court to either attach the property of the violator or to order his detention in prison for a term not exceeding six months, or to adopt both courses. However, the nature and gravity of the violation, the conduct of the contemnor, and the need to uphold the authority of the Court are all relevant considerations. The learned Appellate Court, in substituting its own discretion for that of the Trial Court without demonstrating any illegality or perversity, has clearly exceeded its jurisdiction. Notwithstanding the above, this Court is

C.R. No.38 of 2019

conscious of the fact that the subsequent dismissal of the main suit, though not obliterating the liability arising from disobedience of a subsisting injunctive order, is nevertheless a relevant circumstance while considering the question of quantum of punishment. The object of proceedings under Order XXXIX Rule 2(3) CPC is not merely punitive but also to ensure compliance with orders of the Court and to uphold its authority. Therefore, while the finding regarding willful violation is to be maintained, the question of quantum of punishment is required to be determined afresh by taking into account the totality of circumstances, including subsequent developments having a bearing on the equities of the case. In this regard, the learned Appellate Court has erred in law by introducing the notion of a lesser punishment and confining itself merely to attachment of property, without undertaking a proper assessment of proportionality with reference to the facts and circumstances of the case. Consequently, the learned Appellate Court is required to re-examine the matter and determine an appropriate and proportionate penalty in accordance with law. The relevant part of the impugned judgment is reproduced hereunder:- “13. In view of this court the person who intentionally violates or breach any such condition which is imposed by the court or disobey the order of the court he may be punished in violation of order and property regarding which obedience of that property or breach of condition is made order for attachment can be passed or the person who breach or disobey the order can be detained in prison. So, I am of the view that court has option to adopted any one of penalty and number of cases it is observed by the Apex Courts of Pakistan that if two alternate punishment are provided under the law for the same offence penalty which is lesser in nature shall be adopted by the court which favour the accused. So, punishment awarded by the learned trial court is harsh in nature which is not tenable under the law.

14.Although sentence impose able under order XXXIX Rule 2(3) of CPC can be awarded by the civil court exercises its jurisdiction under Civil Procedure Code but ultimate the violator of any such condition or order of the court has to go in prison. The court should exercise such power with due care and caution. The punishment which can be awarded under this court is also awarded in civil cases but this can be considered as semi criminal in nature and principle of Criminal Procedure Code should also be followed by the court for awarded such sentence.”

14.It is observed that the learned Trial Court, after recording conviction, awarded the maximum sentence of six months simple

C.R. No.38 of 2019

imprisonment without adverting to the mitigating factors or recording reasons justifying imposition of the maximum penalty. The discretion vested in the Court under Order XXXIX Rule 2(3) CPC is to be exercised judiciously and not arbitrarily. The Court is required to strike a balance between maintaining the dignity and authority of judicial orders and ensuring that punishment is proportionate to the nature, gravity and impact of the violation. In the present case, although the charge of willful disobedience stands proved on record, yet the aspect as to what would be the appropriate quantum of punishment, particularly in view of the subsequent dismissal of the main suit and attendant circumstances, has neither been properly examined by the learned Trial Court nor addressed by the learned Appellate Court in its true perspective. This question essentially involves exercise of judicial discretion based on factual appreciation, which is more appropriately to be undertaken by the Appellate Court. Therefore, while maintaining the finding of violation of the injunctive order, it would be just and proper to remand the matter to the learned Appellate Court for the limited purpose of re-determining the quantum of punishment. The learned Appellate Court shall, after affording opportunity of hearing to the parties, consider all relevant factors including the nature of violation, conduct of the respondent, subsequent dismissal of the suit, and the principle of proportionality, and then pass a reasoned order regarding the appropriate sentence in accordance with law.

15.For what has been discussed above, this Court is of the considered view that the impugned judgment dated 24.10.2018, passed by the learned Additional District Judge, Jalalpur Pirwala, is not sustainable in the eye of law, being the result of misreading and non- reading of material evidence as well as improper exercise of jurisdiction. Consequently, the revision petition is partly allowed. The finding of the learned Trial Court regarding willful disobedience of the injunctive order is upheld; however, the impugned appellate judgment is set aside to the extent of acquittal, and the matter is remanded to the learned Appellate Court for the limited purpose of determining afresh

C.R. No.38 of 2019

the quantum of punishment, strictly in accordance with law and after due consideration of all relevant circumstances.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan / A.H.S.*