PLJ 1999
Present: rasheed A. razvi, J.
Hqji MUHAMMAD RAHIM and others-Plaintiffs
Versus
Mst. SURAYYA RAHIM-Defendant
Civil Suit No. 324 of 1995, Civil Misc. App. Nos. 997 of 1996, 4863, 4864 of 1997 and 4631 of 1998, decided on 28.8.1998.
Civil Procedure Code, 1908 (V of 1908)-
—O.XXXIX, Rr. 1 & 2-Specific Relief Act, 1877 (I of 1877), Ss. 42, 54 & 55--Contempt of Court Act (LXIV of 1976), S. 3/4-Disobedience and breach of interim injunction-Effect-Plaintiff in a suit for declaration, mandatory and permanent injunction filed application for grant of interim injunction-Court accepting application of plaintiff granted him interim injunction whereby defendant was restrained from creating any lien, mortgage and encumbrances on suit-property and defendant was further restrained not to give suit property on rent or licence till disposal of suit-^-.— Defendant committing wilful disobedience and breach of interim injunction, sold away suit property-Plaintiff filed application under O.XXXIX, R. 2(3), C.P.C. read with S. 3/.4 of Contempt of Court Act, 1976-Defendant, who did not deny this fact-Defendant being a household lady, she was directed as a first step to deposit amount of sale consideration in Court within specified period-In case defendant failed to deposit sale consideration or if said amount was deposited, further action would be considered thereafter--Vendee of suit property being necessary party, was also joined as defendant with permission to plaintiff to amended plaint. [Pp. 697, 698 & 699] A & B
Mr. KB. Bhutto, Advocate for Plaintiffs.
Khawqja Naveed Ahmad and Habibullah Samo, Advocates for Defendant.
Date of hearing: 28.8.1998.
order
This is a suit for declaration, mandatory and permanent injunction filed by a former husband against Ms former wife Plaintiffs Nos. 2 to 5 are sons of the Plaintiff No. 1 and the defendant. On 24.9.1995 an application under Order 39, Rules 1 and 2, C.P.C. (Civil Miscellaneous Application No. 2578 of 1995) filed by the plaintiffs against the defendants was allowed by me with the following observations:
"The defendant alongwith her written
statement has filed several documents
to support her case that she is a lawful owner and purchaser of the suit property. She has filed original extract of Form PT-1 as Annexure 'B' which shows in Column No. 4
the name and parentage and residence of the owner which are Zulfiqar, Asghar and Muhammad Fahad who are Plaintiffs Nos. 2, 3
and 4 respectively. The defendant has
also admitted in her written statement
that initially the suit property was purchased in the name of their minor sons which fact is sufficient to
establish &prima facie case
for grant of injunction. In
2. Now, plaintiffs have filed application under Order 39, Rule 2(3), C.P.C. read with Section 3/4 of the Contempt of Court Act, 1976 against the defendant with the prayer that this Court may order detention of the defendant as she had committed wilful disobedience and breach of the interim injunction order, dated 24.9.1995. There are other applications which were heard, namely, Civil Miscellaneous Application No. 4863 of 1997 filed by the plaintiffs with the prayer that Mrs. Musarrat Qamar wife of Qamar Shah be impleaded as Defendant No. 2 since she is the subsequent purchaser. Civil Miscellaneous Application No. 4864 of 1997 is again filed by the plaintiff under Order 6, Rule 17, C.P.C. read with Section 151, C.P.C. seeking amendment of the plaint in view of the disposal of the suit property to the subsequent purchaser. Last application is Civil Miscellaneous Application No. 4631 of 1998 filed by defendant under Section 151, C.P.C. praying that she may he allowed to deposit the sale consideration of Bungalow in the installments of Rs. 10,000 per month. I intend to dispose of all these applications with this common order.
3.
In reply to the plaintiffs application under Order 39,
Rule 2(3), C.p.C., it is not denied by the defendant in her counter-affidavit in
evidence that
she has sold away the suit property. The reason shown is that she was living in the said
house with her two minor sons and that she had no source of income to look
after her and her two minor children and that in order to maintain herself and
her two minor sons who were born as a result of wedlock with Plaintiff No. 1 she was
forced by the circumstances to dispose of the suit property. Another reason shown is
that the Plaintiff No. 1 made her life miserable as he used to visit her late
in the nights at the said house alongwith his henchman duly armed with
sophisticated weapons and, therefore, she was left with no choice but to abandon the
house and to take shelter somewhere else. In rejoinder affidavit, the Plaintiff No. 1 has
denied that
the defendant is an eastern woman strongly believing in Islamic Principles.
Reference was made to Urdu Magazine "Safina"
hearing for the purpose of their
examination. Learned counsel for the defendant
was also directed to make the defendant available on the next date. On 21st May, 1998,1 examined defendant and
her two grown-up sons. I do not want
to narrate the facts disclosed by Plaintiffs Nos. 2 and 3 as it may prejudice the case of the defendant. I may,
however, observed that the statement
of her two sons proved contrary to contents of her counter- affidvits".
4. Defendant has filed an application under Section 151, C.P.C. (Civil Miscellaneous No. 4631 of 1998) seeking leave of this Court to deposit the amount of sale in installments of Rs. 10,000 per month. However, she has not stated the total sale consideration of this property. Plaintiff has filed a copy of sale-deed, dated 28.11.1995 executed between the defendant and one Mrs. Musarrat Qamar wife of Qamar Shah disclosing the sale consideration as Rs. 8,80,000 which amount is disputed by Mr. K.B. Bhutto. According to the learned counsel for the plaintiff, value of a house is Bath Island as to the instant suit is more than Rs. 35 lacs. Be that as it may, in view of the admission by the plaintiff that the suit property was disposed of in violation of injunction granted by this Court she is liable to face the consequence as provided under Order 39, Rule 2(3), C.P.C. which provides that the properly of the person guilty of such disobedience is to be attached and that such person may also be detained in civil prison for a term not exceeding six months unless the Court directs release of such contemner before expiry of the periods. In the present circumstances of this case and keeping in view that the defendant is a household lady, the question placed before the Court is what order should be passed. To answer this question, I would like to refer the case Emirates Bank International, Karachi v. Adamji Insurance Limited Karachi and 14 others 1993 CLC 489 where under peculiar and some special circumstances a learned Singe Judge, Wajihuddin Ahmed (as his Lordship then was) after referring to more than 30 reported judgments imposed the penally with the following observation:--
"In matters of contempt a heavy responsibility lies on the Court to explore, except in cases of Criminal Contempt, involving obstruction to the course of justice, as distinguished from merely enforcing orders (Civil Contempt), whether there are other equally effective avenues through which adequate redress can be administered. If so, a discretion and judicial one at that vests to opt for a less rigorous course.
In the facts and circumstances of this case, I find that there is an alternative available, that of passing an order requiring the intervener Bank to restore the status quo and, as far as such be possible. This is distinguishable from punishment for contempt. The order can be passed in anticipation of as well as in conjunction with an action for contempt. In the Supreme Court case ofBakhtawar v. Amin 1980 SCMR 1989, Karam Elahee Chauhan, J. approved such orders invoking he aid of Sections 2(14), 36, 38, 51 and 58 read with Order 21, Rule 32, C.P.C. not to mention Section 151 of the Code which was separately reported to.
'Accordingly, as a first step and by way of an independent order, since the goods have already been sold and cannot be restituted, I would direct the N.B.P. and its abovenamed officers to deposit the sale proceeds thereof namely, a sum of Rs. 29.5 million or thereabout in this Court within 15 days whereupon the amount would be invested by the Nazir in Government securities bearing six monthly returns, the returns being likewise reinvestable'."
5. Following the rule laid down by this Court in the case of Emirates Bank International (supra), I direct the defendant as a first step to deposit the amount of sale consideration of Rs. 8,80,000 within a period of 2 months, with the Nazir of this Court. In case the defendant fails to deposit the same or if the said amount is deposited further action would be considered thereafter.
6. There are two more applications filed by the plaintiff, namely, Civil Miscellaneous Application No. 4863 of 1997 which is under Order I, Rule 10, C.P.C. and Civil Miscellaneous Application No. 4864 of 1997 which is under Order VI, Rule 17, C.P.C. It is an admitted position that now Mrs. Musarrat Qamar wife of Qamar Shah has purchased this property and has become subsequent owner and, therefore, for all legal intents and purposes she is a necessary party. Notice was issued to the proposed defendant vide this Court's order, dated 1.9.1997 but she has chosen not to appear. In the circumstances, both these applications are granted and Mrs. Musarrat Qamar is joined as Defendant No. 2 with permission to the plaintiff to file amended plaint within two, weeks whereafter defendants shall be entitled to file their respective written statements.
7. As a result of above discussions, all the aforesaid four applications stand disposed of.
(T.A.F.) Order accordingly.