Fakir Muhammad Mirani and others (Applicant) VS Muhammad Yousif Memon and another (Respondent)

Cr

Cr.Misc.Application No.87 of 2006.

Fakir Muhd and 5 ors . . . . . ..

.Applicants.

v/s

Muhd Yousif Memon and another. . . . Respondents.

1.For orders on CMA 3898/08.

2.For Katcha peshi.

02.04.2009. Mr.Noor Hassan Malik, advocate for the applicants.

Mr.Ali Haider State counsel

Muhammad Yousif respondent No.1 in person.

ARSHAD NOOR KHAN,J.- This application under section 561-A, Cr.P.C has been filed by the applicants challenging the order passed by learned IInd Senior Civil Judge, Sukkur dated 13.3.2006 whereby dismissed the application filed by the applicants.

The facts leading to the present application in brief are that the respondent Muhammad Yousif filed Civil Suit No.80/1989 before the learned IInd Senior Civil Judge, Sukkur for Declaration and Injunction against one Mst. Rafia Begum wherein, the status-quo was ordered to be maintained by the parties, passed by the learned trial Court on 30.4.1989. After about one and half year from the date of passing the status-quo order, the respondent NO.1 filed contempt application under order 39 Rule 2 and 3, CPC, which could not be finally decided when the suit was decided by trial Court whereby the suit was decreed in favour of the respondent No.1. Against such decree passed by the learned trial Court, the said Mst.Rafia Begum filed Civil Appeal No.12/2000 before the learned District Judge, which was entrusted to learned IIIrd Additional District Judge, who after hearing of the learned counsel for the parties, allowed the appeal and set aside the judgment and decree passed by the Civil Court, against which, the respondent No.1 filed Civil Revision No.18/2001 before this Court, which was heard and decided vide order of this Court dated 21.6.2002 whereby the revision application was dismissed thereby maintaining judgement and decree passed by the learned IIIrd Additional District Judge and while dismissing revision application, this Court also imposed cost of Rs.20,000/- on the respondent No.1. Against the dismissal of the said revision application, the respondent No.1 filed C.No.832-K of 2002 before the Honourable Supreme Court, which was dismissed on 09.02.2004 in default. After exhausting the remedy, the respondent No.1 moved to the trial Court and pressed his application for contempt of Court pending against the alleged contemners, who were not party to the suit and the learned trial Court vide order dated 07.04.2004 took the cognizance of the matter and framed the issue regarding alleged violation of the status-quo dated 30.4.1989. The applicants filed application under Section 151, CPC for recalling of the order dated 07-04-04 which has been dismissed; hence the present application.

I have heard Mr.Noor Hassan Malik, learned counsel for the applicants, Mr.Ali Haider learned State counsel and respondent No.1 Muhammad Yousif in person.

The learned counsel for the applicants vehemently contended that after dismissal of the civil litigation finally, there was hardly any ground available for the respondent No.1 to press contempt of Court application, which he did not pursued for more than 12/13 years and that applicants, who have allegedly violated the order of the Court, were not the party to the original proceedings and that the respondent No.1 has also lodged the FIR against the same crime, which was also disposed off against him, as such the learned lower Court had no power to reopen the case, which has been finally decided by this Court as well as by the Honourable Supreme Court.

The learned State counsel candidly admitted that after passing of the final order, the interim order merged in the final order, therefore, it could not be said that the order regarding the status-quo was in continuance so as to take the cognizance of the matter. He is also of the view that instead of application under Section 561-A, Cr.P.C, the applicants have to file constitutional petition and this Court has all the powers to convert this application into the constitutional petition.

Muhammad Yousif respondent No.1 vehemently opposed the submissions advanced by learned counsel for the applicants and has contended that the violation of the order of this Court, was made by the applicants and that the suit has not been finally disposed off as his application for restoration is pending adjudication before the Honourable Supreme Court. According to him, the application under Section 561-A, Cr.P.C is not maintainable as the proceedings were initiated in civil proceedings, therefore, the applicants ought to had move to the District Court in civil revision and that order passed by the learned Senior Civil Judge, thereby taking cognizance of the matter, is legal and does not suffer from any infirmity.

I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

Admittedly the suit for declaration and injunction filed by the respondent No.1, was dismissed by the learned IIIrd Additional District Judge vide judgment and decree dated 15.12.2000, as such, the suit was finally disposed of by the learned Additional District Judge and against his judgement and decree, the revision was preferred before this Court being No.18/2001, which also culminated against respondent No.1 vide order of this Court dated 21.6.2002 and this Court also imposed cost of Rs.20,000/- against the respondent No.1 while dismissing his revision application. There could be, therefore, no cavil to the proposition that the suit filed by the respondent No.1, was finally disposed off by the Court and it is settled principle of law that all the interim orders passed during the pendency of the suit merged in the final order, as such status-quo if any granted by the Civil Court also merged in the final judgement and decree.

The respondent No.1 after filing of alleged contempt application against the applicants, did not pursue the same for the years together and the conduct of the respondent No.1, shows that in fact, there was no violation of the order passed by the trial Court and he had filed such application for certain extraneous consideration, therefore, he did not pursue the said application before the trial Court before passing the judgement and decree. Even otherwise, the record does not speak that the status-quo allegedly passed on 30.04.1989 by Civil Court, was for date to date or was granted till disposal of the suit, any how, the said status-quo was no more in field at the time when on 07.4.2004 when the learned Senior Civil Judge took the cognizance of the matter.

It is not disputed by the respondent No.1 in his affidavit in support of contempt application that he filed alleged contempt application after one and half year from the date of alleged contempt. His affidavit to contempt application is self explanatory which shows that he exhausted all the remedies out side the Court including the registration of FIR for the same alleged offence, but on independent enquiry by the police, the allegations leveled by the respondent No.1 were proved false therefore the FIR was disposed off in ‘C’ Class. He also repeatedly approached to the police as well as political figures but on every corner, he failed in his efforts which shows that there was no substance in his allegations regarding his alleged dispossession. The applicants were not party to the suit and it has not come on record that the applicants were served with the notice of status-quo and, in case, if the applicant was illegally dispossessed by the alleged contemners, why he did not apply before the trial Court for his reinduction in possession of the property. In this view of the matter lodging of the FIR against the culprits, who took the law in their own hand was the appropriate remedy, which in fact, the respondent No.1 availed by lodging separate FIR but his FIR did not find any substance and was disposed off in ‘C’ Class by the competent Court.

The respondent No.1 stressed that the proceedings initiated by him, were in civil proceedings and against the order passed by the learned Senior Civil Judge, the civil revision was competent before the District Court and criminal application under section 561-A, Cr.P.C, was not maintainable before this Court. The contention advanced by him seems not to be reasonable and plausible for the reason that the contempt proceedings are criminal in nature because conviction and sentence is provided under Order 39 Rule 2 and 3, and where-ever physical conviction is provided in a provisions of law or statue that proceedings would be deemed as criminal or semi criminal in nature and the provisions of Cr.P.C could also be applied to those criminal or semi criminal proceedings, therefore the application filed under Section 561-A, Cr.P.C before this Court, could not be treated as incompetent. Even otherwise, this Court has ample powers to convert the application under Section 561-A, Cr.P.C into a constitutional petition if the propriety demands.

For all the aforesaid reasons and circumstances, I find that the learned trial Court was not competent to take the cognizance of the matter after final adjudication of the case between the parties and the alleged status-quo merged in the final judgment and decree therefore at the time of taking cognizance by the learned trial Court, it was non-existence in the eye of law. The application, is therefore, allowed and the orders impugned herein are set aside.

JUDGE

Akber.

Approved for reporting.