1980 S C M R 89 https://www.pakistanlawsite.com/Login/PrintCaseLaw?
caseName=1980S734
1980 S C M R 89
Present: Aslam Riaz Hussain, Karam Elahee Chauhan and
Nasim Hasan Shah, JJ
BAKHTAWAR ETC. ‑Petitioners
versus
AMIN ETC. ‑Respondents
Civil Petition for Special Leave to Appeal No. 245 of 1979, decided on 31st December, 1979.
(On appeal from the judgment and order of the Lahore High Court, dated 27‑3‑1979, in F. A. O. No.
264/79).
(a) Civil Procedure Code (V of 1908)‑
‑‑ O. XLI, r. 5 ‑Appeal to Supreme Court‑Stay order Stay order granted by Supreme Court on
undertaking given by petitioner‑Deliberate violation of such undertaking‑Held, can be taken serious
notice of.‑[Supreme Court‑Stay order‑Appeal (civil).
Muhammad Salim Khan Yusafzai v. K. Mohiuddin 1968 S C M R 557 ref.
(b) Civil Procedure Code (V of 1908)‑
‑‑ O: XXXIX, r. 2 (3) read with S. 151‑Injunction‑Party against whom injunction order passed doing
something for its own advantage and to disadvantage of other party‑Court can, under its inherent
jurisdiction bring back such party to original position‑Plea that since tad interim order was later
discharged, violation of such order was no longer cognisable Held, without substance.‑[Jurisdiction
-Injunction].
When by contravening an injunction order the party against whom the order is passed has done
something for its own advantage to disadvantage of 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. The exercise of this inherent power is based on the principle that no party can be
allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court.
Ayyammal and another v. Thangavelu Padayachi A I R 1950 Mad. 317 ; Maharaj Bahadur Singh v. A.
H. Forbes A I R 1922 Pat. 382 ; The State of Bihar v. Usha Devi and another A I R 1956 Pat. 455 ;
Magna and another v. Rustam and another A I R 1963 Raj. 3 and B. F. Varghese v. Joseph Thomas A I
R 1957 Trav‑Co. 286 ref.
It was argued that since ultimately the ad interim order of status quo was later discharged by the Court,
violation of such order was not cognisable:
Held, such plea has no substance.
Bagga and others v. Saleh and others A I R 1915 P C 106 and Ottapur ak kal Thazath Suppi and others
v. Alabi Mashur Koyanna Koya Kunhi Koya A I R 1917 Mad. 448 ref.
(c) Civil Procedure Code (V of 1908)‑
‑ S. 58 and O. XXXI, r. 2 (2) read with S. 36 & O. XXI, r. 32 (1)‑ Securing compliance and execution
of an order of injunction by directing arrest and detention of judgment‑debtor‑Held, a matter different
from punishing a judgment‑debtor for violation of injunc tion of status quo‑Object and application of S.
58 and O. XXXIX, r. 2 (3).‑[Injunction].
Securing compliance and execution of an order of injunction by directing arrest and detention etc. of
(as this term is usually used)‑A judgment‑debtor is an independent subject by itself whereas punishing
a judgment‑debtor for violation of the injunction of status quo is quite a different matter altogether
though in certain respects apparently they may look to be overlapping but that is only in cidental. The
object of first is to seek compliance by a Court of its orders as otherwise these orders would be a mere
farce. The aim of the second machinery is the punishment of the defaulter. The former is regulated by
section 58, C. P. C, whereas the latter by Order XXXIX, rule 2 (3), C. P. C. The former is applicable
when stage for execution has not passed out or in other words the order is still capable of execution
whereas the latter is attracted at all stages.
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The Advocate‑General of Bombay v: Gangii Akhat I L R 19 Bom. 152 ; Kishore Bun Mohunt v.
Dwarkantah Adhikari and others 21 I A 89 (P C) ; Nari Chinnabba Chetty v. E. ' Chengalroya Chetty
and others A I R 1950 Mad. 237 ; Mool Chandra Jain v. Jagdis Chandra Joshi A I R 1955 All. 385 ;
Dulhin Janak Nandini Kunwari v. Kedar Narain Singh A 1 R 1941 All. 140 and Bendakayala Abdul
Rajack v. Vastad Abdul Latheef A I R 1961 Andh. Pra. 482 ref.
Ch. Aziz Ahmed, Advocate Supreme Court and Ch. Ghulam Mujtaba, Advocate‑on‑Record for
Petitioners.
Qamar‑ud‑din, Advocate, Supreme Court and Abid Nawaz, Advocate- on‑Record for Respondents Nos.
2 and 3. '
Date of hearing : 19th December, 1979.
ORDER
KARAM ELAHEE CHAUHAN, J.‑‑The petitioners/plaintiffs filed a suit against the
defendants/respondents for a declaration that an order of the Divisional Canal Officer dated 4th
December, 1977, whereby he had directed that defendants should receive water for irrigating their land
from a khal which passed through the land which though jointly owned by the parties was alleged by
the plaintiffs to be in their hissadari possession as co‑owners. In that suit the plaintiffs filed an
application for grant of an ad interim temporary injunction which was rejected on 20th February, 1979.
The plaintiffs filed an appeal against the aforesaid order of the civil Court but without any success as
the same was dismissed by the learned District Judge on 6th March, 1979. This order between the
parties has become final inasmuch as it was not challenged further anywhere in any forum. The finding
recorded in these orders was that there did already exist a watercourse on the spot from which the
defendants were authorised to receive water for their lands.
2. It appears that during the pendency of the aforesaid appeal of the plaintiffs they had asked for an
order of status quo, which was granted to them by the learned District Judge on 24th February, 1979.
The defendants/respondents however, on 28th February, 1979 brought to the nonce of the learned
District judge that though the plaintiffs/petitioners had obtained an order of status quo on 24th
February, 1979 but they had themselves violated it inasmuch as taking benefit of that order they had
demolished the khal which already existed on the spot on the relevant date for watering the fields of the
defendants. The learned District Judge in that miscellaneous application on 20th March, 1979, directed
the plaintiffs/petitioners to restore the khal. Relevant portion of that order which may conveniently be
reproduced here reads as follows :‑
"A watercourse certainly existed at the spot, which has been demolished by the respondents.
Proceedings under Order XXXIX, rule 2, sub‑rule (3), C. P. C. may be taken against them and
notices be issued to them to appear in this Court personally on 27th March, 1979. The
respondents are also directed to restore the watercourse in question within twenty‑four hours
failing which they shall be sent to the civil prison. This order has been passed under section
151, C. P. C. to secure the ends of justice."
As this order was not complied with the learned District Judge then on 27th March, 1979 passed
another order which is to the following effect :‑
"The respondents are not present. The petitioner states that the respondents have not restore the
watercourse in question in accordance with the order dated 20th March, 1979 of this Court. The
affidavit of the petitioners has been filed in this behalf. The order of this Court has to be
complied with. The respondents should, therefore, be sent to civil prison and be detained there
till the watercourse in question a, restored by them. Their property shall also be attached and
warrants for arrest and attachment be issued. The petition be put .up for further proceedings on
3rd April, 1979."
3. The petitioners/plaintiffs filed an appeal (being F.A.O. No. 105 of 1979) in the High Court against
the aforesaid order of the learned District Judge dated 20th March. 1979. In that appeal it was argued
that the orders of the learned District Judge purported to put the petitioners under a double jeopardy
firstly under detention to seek enforcement of his order and secondly to face charge for imprisonment
on account of disobedience of the order of status quo. This plea was not accepted, and a learned Single
Judge of the Lahore High Court dismissed that appeal on 27th March, 1979, holding that the two
matters were quite separate and could independently proceed against the petitioners. This is a petition
for special leave to appeal against the aforesaid order to this Court.
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4. The petitioners had applied for an order of ad interim stay or status quo in this Court as well. The
matter was disposed of by an order of this Court dated 16th April, 1979 which reads as follows :‑
"Arguments partly heard. It has been brought to our notice that a. connected Petition No. 624/78, in
respect of the same khal, is pending in this Court. We direct that connected petition may also be listed
for hearing on 17th instant."
Learned counsel for the petitioners undertakes to have the khul its question restored for the present and
in the meantime the petitioners shall not be apprehended. .
Adjourned; to come up alongwith the connected Civil Petition 624/78, on 17th instant. Notice for the
counsel in C. P. 624/78, will be given."
5. It is stated by the officers of the Canal Department; who were present in person alongwith the record
and by the learned counsel for the other respondents that on the spot the khal has not yet been restored.
Learned counsel for the petitioners was asked as to why this petition should not be dismissed because
his clients have not fulfilled the undertaking which was given by them on the basis whereof stay order
against their arrest was given to them and why further action against his clients should not be taken by
this Court as well. The learned counsel had no answer except that his clients were of old age and
probably they may not have understood the contents of the above order and that he himself was also
probably not certain of the terms on which stay had been granted to him. These pleas cannot be
accepted in view of the clear terms of the order above reproduced, and it appears to be a case of a
deliberate violation of an undertaking given to this Court and we would have straightway taken a,
serious note of it as was done in Muhammad Salim Khan Yusafzai v. K. Mohiuddin (1968 S C M R
557) or would have dealt with the matter under other law relevant in this behalf. But for a fresh
undertaking given by the learned counsel that he will attend to this matter and impress upon his clients
to reopen or reconstruct the khal, we for the present keep this aspect of the matter open to give
opportunity to the plaintiffs to do the needful. Learned counsel can inform the Registry of this Court
that the petitioners have com plied with their (now double) undertaking. If the amends are not made
within a fortnight, the learned trial Court (where the suit is still pending) is directed to get the khal
restored by issuing necessary directions to the canal authorities and others concerned and burden the
petitioners with costs. He should report compliance to this Court.
6. Coming to the merits of the present petition the learned counsel argued that the learned District
Judge under the law had no jurisdiction to direct the plaintiffs/ petitioners to reconstruct or restore the
khal which, we may observe, according to the concurrent factual findings of the two Courts below had
been demolished by them by taking undue advantage of the order of "status quo" issued by the learned
District Judge. It was argued that in such cases the only remedy of the respondents was to file a
separate suit fur that purpose or to sue for damages. The contention has no merit. It is well settled that
when by contravening an injunction order the party against whom the order is passed has done
something for its own advantage to disadvantage of 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. The exercise of this inherent power is based on the principle that no party can be
allow ed to take advantage of his own wrong in spite of the order to the contrary pissed by the court.
See Ayyammal and another v. Thangavelu Padayachi (A I R 1950 Mad. 317); Maharaj Bahadur Singh
v. A. H. Forbes (A I R 1922 Pat. 382), Tile State of Bihar v. Usha Devi and another (A I R 1956 Pat.
455) and Magna and another v. Rustam and another (A I R 1963 Raj. 3).
In B. F. Yarghese v. Joseph Thomas (A I R 1957 Trav.‑Co. 286) where the Court had already passed a
temporary injunction against the defendants but the subsequent action of the plaintiffs in interfering
with the subject‑matter tended to discredit the temporary injunction, it was held that the Court was
justified in granting a temporary injunction at the instance of the defendants ordering the plaintiffs to
restore the status quo.
7. The next point argued was that since ultimately the ad interim order of "status quo" was later
discharged by the learned District Judge when he dismissed the appellants' appeal, therefore, violation
of the afore said order was not now cognizable. This plea again has no substance. See Bagga and others
v. Saleh and others (AIR 1915 P C 106) where it was laid down that if during the period when an
injunction was in operation it was disobeyed the Court can proceed against the party concerned for its
violation. To the same strain is Ottapurakkal Thazath Suppi and others v. Alabi Mashur Koyanna Koya
Kunhi Koya (A I R 1917 Mad. 448); where it was held that if a disobedience of an injunction granted
under Order XXXIX, rule 2, C. P. C. has occurred and an application for action being taken within rule
2 (3) is made and a dissolution of the injunction takes place as a result of the dismissal of the suit
subsequently (we should here say dismissal of appeal by the learned District Judge) the dismissal does
not excuse the party guilty of dis obedience. In this situation the matter is one left to the discretion of
the Court, which is not bound under rule 2(3) in the first instance to attach property and then only order
imprisonment.
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8. It was then argued that in cases of this type where a party has violated an injunction order the
maximum penalty which the law under Order XXXIX. rule 2 (3), C.P.C. envisages is of detention in a
civil prison for six months and till such term as the rectification is done and that this period of detention
prescribed in the sub‑rule cannot even indirectly be added to as laid down in The Advocate‑General of
Bombay v. Gangji Ahhat (1 L R 19 Bom. 152). We need not go into the scope of Order XXXIX rule 2
(3) because the matter as to what penalty should be imposed upon the plaintiffs/ petitioners (as pointed
out by the High Court) is still sub judice before the learned District Judge, and for the present the sole
question to be seen is whether for getting compliance of his order dated 20th March 1979, the learned
District Judge could order detention of the petitioners in a civil prison till his orders were obeyed and
the khal demolished by the petitioners was reconstructed by them on the spot. If he had jurisdiction to
order restoration of khal, then what are the means and ways through which he could secure the
execution of his order. This part of the case deals with securing execution and compliance of an order
and not with punishment for a disobedience of that order under Order XXXIX, rule 2 (3), C. P. C. (or
any other law if relevant) because in spite of the fact that compliance later on may have been secured
by other means and processes the punishment for the civil offence of disobedience is a matter
independent by itself and should not be mixed up with execution of the relevant order or orders
violation whereof may have landed the law breaker into a penal offence as well. We hold accordingly
and will explain this point hereinafter.
9. At this place reference may be made to section 2 (14) of the C.P.C. which defines an `order' and
states that `order' means the formal expression of any decision of a civil Court which is not a decree".
As a general rule an order by a Court of law is founded on objective considerations and as such is a
judicial order which contains discussion of the question in issue and the reasons which prevailed with
the Court to pass it. Judging the order dated 20th March 1979 which was passed by the learned District
Judge in this case, it is a judicial order which took note of the breach of the status quo order by the
plaintiffs/petitioners, referred to the relevant evidence before it, and after attending to all the facts and
circumstances directed the plaintiffs to restore or reconstruct the khal which already existed at the spot.
As already mentioned above the learned District Judge was compe tent to pass such an order. In this
respect then we come to section 36 which occurs in part II of the C. P. C. headed. "Execution" and
"General" and lays down that `the provisions of this Code relating to the execution of decrees shall so
far as they are applicable be deemed to apply to the execution of orders". Section 38 lays down that "A
decree may be executed either by the Court which passed it, or by the Court to which it is sent: for
execution". This will show that since the order dated 20‑3‑1979 was passed by the learned District
Judge, he was (like his own decree) competent to enforce its execution. Under section 51, C. P. C. a
decree may be executed (a) by delivery of any property specifically decreed ; (b) by attachment and
sale or by sale without attachment of any property ; (c) by' arrest and detention in prison ; (d) by
appointing a receiver ; or (e) in such other manner as the nature of the relief granted may require. Order
21, rule 32 is headed as "Decree for specific performance, for restitution of conjugal rights, or for an
injunction", and so far as relevant‑(the Lahore Amendment)‑lays down that "where the party against
whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an
injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to
obey it the decree may be enforced in the case of a decree for restitution of conjugal rights by the
attachment of his property or, in the case of a decree for the specific performance of a contract or for an
injunction by his detention in the civil prison, or by the attachment of his property, or by both" .(5)
"where decree for the specific performance of a contract or for an injunction has not been obeyed, the
Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to
be done may be done so far as practicable by the decree‑holder or some other person appointed by the
Court at the cost of the judgment‑debtor, " Though these provisions are clear to show that execution of
a decree for injunction can be procured by the arrest and detention of the judgment‑debtor, but for cases
which lay down that enforcement can be made by commitment of the judgment debtor see Kishore Bun
Mohunt v. Dwarkantah Adhikari and others (21 1 A 89 (P C) ) (a case under the corresponding
provisions of the old Code) ; Nari Chinnabba Chetty v. E. Chengalroya Chetty and others (A I R 1950
Mad 237) and Mool Chandra Jain v. Jagdish Chandra Joshi (A I R 1955 All. 385). In Dulhin Janak
Nandini Kunwari v. Kedar Narain Singh (A I R 1941 All. 140), at p. 142, it was field that ''section 36
lays down that the provisions of the Code relating to the execution of decree shall, so far as they are
applicable, be deemed, to apply to the execution of "orders". Under Order XXI, rule 32, injunctions
contained in decrees can be enforced in certain ways and it seems to me that it is obvious that
injunctions contained in orders can be enforced in the same way. I think therefore that there is
considerable force in the argument placed before us that the enforcement of injunctions issued under
Order XXXIX, rule 1 should be under the provisions of section 36 and Order XXI, rule 32, Civil
Procedure Code. If that is so, the provisions of sub‑rule (3) of rule 2 of Order XXXIX, would not
apply............ At this place reference may again be made to sub‑rule (5) of rule 32 of Order XXI which
has already been reproduced earlier. The illustration attached to that sub‑rule reads as follows. "A, a
person of little substance, erects a building which renders uninhabitable a family mansion belonging to
B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree
obtained against him by and directing him to remove the building. The Court is of opinion that no sum
realisable by the sale of A's property would adequately compensate B for the depreciation in the value
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of his mansion, B may apply to tile Court to remove the building and may recover the cost of such
removal, from 4 in the execution proceedings." In Bendakayala Abdul Rajack v. Vastad Abdul Latheef
(A I R 1961 Andh. Pra. 482) section 36 and Order XXI, rule 32 (1) were applied to even enforcement
of an ad interim mandatory injunction. A cumulative study of these provisions will show that securing
compliance and execution of an order of injunction to restore or reconstruct the khal by directing arrest
and detention, etc. of (as this term is usually used)‑a judgment‑debtor is an independent subject by
itself whereas punishing a judgment debtor for violation of the injunction of status quo is quite a
different matter altoge ther though in certain respects apparently they may look to be overlapping but
that is only incidental. The object of first is to seek compliance by a, Court of its orders as otherwise
these orders would be a mere farce. The aim of the second machinery is the punishment of the
defaulter. The former is regulated by section 58 whereas the latter by Order XXXIX, rule 2 (3), C. R. C.
The former is applicable when stage for execution has not passed out or in other words the order is still
capable of execution whereas the latter is attracted at all stages. The plea of double jeopardy thus fails
and is hereby repelled.
10. The result of the above discussion is that the order of the learned District Judge dated 20th March
1979, directing restoration of the khal .on the facts and in the circumstances above explained was
perfectly lawful and cannot be taken exception to. Similarly his further order or direction directing
imprisonment of the plaintiffs/petitioners and attachment of their property for securing compliance and
execution of that order was also perfectly within the framework of the law relevant on the subject as
explained above subject to one clarification that that order will obviously have to be read subject to
limitations and restrictions contained in section 58 and other similar provisions like sections 134, 135
and 135‑A of the C. P. C. In section 58 the period of detention in such cases is six weeks.
11. The petition thus having no merit is dismissed with the clarifica tion above made. The petitioners to
pay the costs of the caveators.
Petition dismissed
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