PLJ 1999 Karachi 263

Present: WAJiHUDDiN ahmed, C.J. and muhammad roshan essani, J. SAIFUR REHMAN-Petitioner

versus

MUHAMMAD AYUB and 2 others-Respondents

C.P. No. D-65 and Misc. No. 708 of 1998, decided on 11.3.1998.

(i) Civil Procedure Code, 1908 (V of 1908)--

—O.XXXIX, Rr. 1 & 2«Contempt of Court Act (LXIV of 1976), S. 3--Party to proceedings could not, while an application for interim relief was bona fidely pending, blatantly so act as to pre-empt its lawful disposal because such act, in given set of circumstances, could amount to doing things calculated "to interfere with or obstruct or interrupt or prejudice process of law or due course of a judicial proceedings" and, thus, fell within mischief of S. 3 of Contempt of Court Act, 1976.            [P. 265] A

(ii) Civil Procedure Code, 1908 (V of 1908)-

—-O. XXXK, R. 2 & S. 151--Powers of a Civil Court in terms of O.XXXIX, R. 2(3), C.P.C. extended to initiate appropriate action for disobedience of order of Court and whenever necessary, inherent powers under S. 151, C.P.C. could be exercised for advancement of ends of justice or to prevent abuse of process of Court.          [P. 265] B

(iii) Civil Procedure Code, 1908 (V of 1908)--

—O. XXXEX, Rr. 1 & 2--Specific Relief Act (I of 1877), S. 55-Interim order in nature of a mandatory injunction could be issued in a very limited category i.e. of wilful disregard of orders, tending to alter position or status of parties to a judicial dispute while another comprised of like change recklessly and wantonly brought about, while an application for interim relief was receiving active consideration of Court.                                  [P. 265] C

 (iv) Civil Procedure Code, 1908 (V of 1908)--

—S. 151 & O.XXXIX, R. 1 & 2--In such cases of wrongdoings merits of the dispute or the stage of the proceedings, interlocutory or final, were irrelevant-All that needed to be considered was the nature of corrective measures to uphold and maintain the majesty of law.                                                          [P. 265] D

(v) Constitution of Pakistan (1973)-

—Art. 199--Constitutional jurisdiction of High Court in essentials, was a discretionary jurisdiction and it could not be claimed as a matter of right-­ Such jurisdiction could only be exercised in aid of justice-Each case would entail its own objective conditions and the discretion was to be used on sound judicial considerations-Even where clear and manifest acts of illegality, covered by Art. 199 of Constitution of Pakistan (1973), were questioned in the Constitutional jurisdiction of Court, Court could
well refuse relief if aggrieved person had approached Court with unclean hands and was guilty of iniquitous conduct-No room for technicalities in such jurisdiction was available and Court would refrain from according relief where grant of same could, instead of advancing cause of justice and public good, had potential to retard same.          [Pp. 265 & 266] E

1995 PLC (C.S.) 1221 and 1995 PLC (C.S.) 1226 ref.

Mr. A. RaufKasuri, Advocate for Petitioner.

Mr. Muhammad Iqbal Malik, Advocate for Respondent No. 1.

Date of hearing: 11.3.1998.

order

Wajihuddin Ahmed, C-J.-This petition is directed against the order, dated 17.1.1998 passed by the learned IVth Additional District Judge, Karachi East, in Civil Revision No. 2 of 1998. That, revision, in turn, was taken against an order, dated 13.1.1998, whereby the learned VHIth Senior Civil Judge, Karachi East, in Suit No. 97 of 1997 had ordered restoration of possession of the disputed property to the plaintiff on the apparent ground that the plaintiff was dispossessed by the defendant in the suit while an ad interim order of status quo had been operative. In the referred proceedings, the defendant expressly acknowledged that he had, during pendency obtained possession of the disputed property from the plaintiff who was the defendant's tenant and that the delivery of possession was voluntary because the plaintiff-tenant was under heavy arrears of rental dues. The two successive orders of the learned Civil Judge and the learned Additional District Judge East, Karachi, have been questioned before us on the plane of want of jurisdiction. It is correct, as is implicit in the argument, that orders of Civil Courts are not challengeable in the Constitutional jurisdiction unless such be void or without jurisdiction or the proceedings be coram nonjudice. This petition must qualify within such narrow compass to bear any fruit.

In the first place, it is doubtful that the orders were without jurisdiction. As already observed, the defendant (petitioner) admitted before the learned Presiding Judges that he had in fact taken-over possession while the proceedings were pending and what is more he also asserted that such taking over and voluntary surrender of possession occurred at a time when the ad interim status quo order had not been extended. These are tell-tale pleas. If the plaintiff (Respondent No. 1) was forcibly dispossessed, the defendant utilized a convenient plea of the ad interim order not holding the field at the relevant time. Needless to point out that there is sound logic behind the proposition that a party to the proceedings cannot, while an application for interim relief is bona fide pending, blatantly so act as to pre­empt its lawful disposal because that, in given set of circumstances, may amount to doing things calculated "to interfere with or obstruct or interrupt or prejudice the process of law or the due course of a judicial proceeding" and thus fell within the mischief of Section 3 of the Contempt of Court Act, 1976. This is so far as the plea of no ad interim order holding that field at the time is concerned. It remains, however, to be reckoned that if the defendant's version of the case is to be accepted and if there actually was a voluntary surrender of possession, there should have been some documentation, some pursuasive evidence in support thereof and above all a person if he had volunteered to vacate could hardly approach the Court overnight for restoration. On the legal plane, the powers of a Civil Court in terms of Order XXXIX, Rule 2(3), C.P.C. clearly extend to initiate appropriate action for disobedience and wherever necessary inherent powers under Section 151 of the Code can be exercise for advancement of the ends of justice or to prevent abuse of the process of the Court. In the circumstances, such powers appear to have been correctly exercised concurrently.

It needs to be stressed here that an interim order in the nature of a mandatory injunction can be issued in a very limited category of cases. One of those cases consists of wilful disregard of orders, tending to alter the position or status of parties to a judicial dispute. Another comprises of like change, recklessly and wantonly brought about, while an application for interim relief is receiving active consideration of the Court. Such manipulated interventions, through acts of commission or omission, have never been brooked by Courts and restoration of the status quo ante can, in appropriate cases be ordered. A party attempting to act in anticipation of the order of a Court or trying to steal a march over his adversary, already in Court or acting in a manner suggestive of a race against the law is liable to correction. In such cases of wrongdoings merits of the dispute or the stage of the proceedings, interlocutory or final, are irrelevant. All that needs to be considered is the nature of corrective measures to uphold and maintain the majesty of law. This the Courts below seem to have achieved. See inter alia Noor Muhammad v. Civil Aviation Authority, 1987 CLC 393.

At any event, the Constitutional jurisdiction of this Court, in essentials, is a discretionary jurisdiction. It cannot be claimed as a matter of right. It can only be exercised in aid of justice. Each case entails its own objective conditions and the discretion is to be used on such judicial considerations. Even where, we might add, clear and manifest acts of illegality, covered by Article 199 are questioned in the Constitutional jurisdiction of the Court, the Court may well refuse relief if the aggrieved person has approached the Court with unclean hands and is guilty of iniquitous conduct. There is no room for technicalities in this jurisdiction and the Court would refrain from according relief where grant of it may, instead of advancing the cause of justice and public good, have the potential to retard it. See Shakeel Ahmed v. Federation of Pakistan, 1995 PLC (C.S.) 1221 and 1226.

In the facts and circumstances of this case, no interference is called for and the petition is dismissed.

(K.K.F.)                                                                        Petition dismissed.