KISHWAR SULTAN JEHAN BEGUM Versus ASLAM AWAIS

SARDAR MUHAMMAD IQSAL, C. J.‑Mst. Kishwar Sultan Jehan Begum, petitioner herein, claims to have purchased through an open auction held in 1962 a cinema house, known as the Capital Cinema, Abbot Rbad, Lahore. alongwith some fiats situate behind it, for a sum of Its. 36,03,000. Messrs Irfanullah and others challenged the transfer in favour of the petitioner. The litigation between the parties went up to Supreme Court of Pakistan and finally ended in 1957 with the dismissal of the appeal filed by Messrs Irfanullah and others. The question then arose as to the mode of payment of the auction price by the petitioner. The Settlement authorities directed the petitioner to pay one‑fourth of the outstanding amount in cash. They declined to accept the compensation books issued in the Province of Sind for the reason that the same could not be utilized in the Province of Punjab. The petitioner being dissatisfied filed a Writ Petition (No. 257‑R of 1973) in the High Court. Upon notice, Mr. Maqbool Elahi Malik, Legal Adviser of the Settlement Department appeared and took an objection to the maintainability of the writ petition on the ground that it was premature for, according to him, the petitioner should have approached the Department for the purpose in the first instance. He, however, undertook that no action would be taken against the petitioner till such time the matter was finally decided. The Additional Settlement Commissioner (Industries) by his order, dated the 9th of June 1973 withdrew the condition of payment of one‑fourth of the auction price in cash, and further ordered that the compensation books issued in the Province of Sind should also be adjusted towards the payment of the auction price. The petitioner was directed to clear all the outstanding dues within thirty days. The petitioner does not appear to have complied with this order and instead challenged the same in appral, whereupon Sardar Flidayatullah Khan Mokal, Settlement Commissioner (Industries) passed the following order:

"In June 1962 the Capital Cinema, Lahore was sold out for Rs. 36,00,000 in favour of Mst. Kishwar Sultan Jehan Begum. According to the terms and conditions of auction, she was required to deposit the entire amount within three years, but she made very nominal payments. In order to know the genuineness of the compensation books, the `W forms which she had tendered towards payment, references ware made to the Deputy Settlement Commissioner, Karachi, who reported that the associates of the auction purchaser had not deposited their compensation books and as such their genuineness could not be authenticated.

The then Additional Settlement Commissioner (Ind.) vide his order dated 9‑6‑1973 directed the auction‑purchaser to deposit the entire auction price within 30 days but she did not care to comply with the aforesaid orders despite the expiry of the stipulated period long ago.

Whenever steps were initiated to enforce recovery she involved the Department in litigations by filing writs in the High Court, Special Leave to Appeal in the Supreme Court and Civil Suit in the Civil Court and Department remained deprived of payment up‑to‑date.

Having been disappointed from her attitude the matter was brought to the notice of the Chief Settlement and Rehabilitation Commissioner, Punjab, who was pleased to order that as she was/is a chronic defaulter and her genuine payment is below 25 % of the auction price of Rs. 36,00,000 the cinema should be sealed forthwith.

In view of the above circumstances and in pursuance of the orders of the Chief Settlement and Rehabilitation Commissioner, I, Sardar Hidayat Ullah Khan Mokal, Settlement Commissioner (Industries) resume the cinema, cancel the auction and impose attendant penalties."

The petitioner then filed this petition under sections 2 and 3 of the Contempt of Courts Act read with Article 204 of the Constitution of the Islamic Republic of Pakistan. When it came up for hearing before one of us (Shameem Hussain Kadri, J.) on the 3rd of April 1974, the following order was recorded:‑

"Mr. Gul Muhammad Khan, Advocate contends that the under taking given by Malik Maqbool Elahi counsel for the Settle ment Department in Writ Petition No. 257‑R of 1973 has not been adhered to by the public functionaries. They have thus. made themselves liable for punishment under Article 204 of the Constitution. The question `whether the public func tionaries are at liberty to proceed according to their whim and pass any order against the undertaking given on their behalf by their counsel in the Superior Courts, involved in these proceedings is of great public importance. Notice for 10th April 1975 (Actual). The case may be laid before my Lord the Chief Justice for framing a larger Bench in order to consider the question involved. The Advocate General or any of his Assistants and Raja Mohammad Anwar, Deputy Attorney General, Government of Pakistan, will assist the Court on that date."

The Full Bench was then constituted to determine the question whether or not the breach by a person of an undertaking given to the Court by a party on its counsel amounts to contempt of Court.

2. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfil the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself in a perilous situation if later he commits a breach of his undertaking, and such a conduct on his part amounts to contempt of Court. In Chaturbhujdas Parmanandas v. Natvarlal Tribhovan das (134 1 C 1165) it was held that if an undertaking is given and is duly recorded in the order of the Court, its breach is punishable as contempt of Court. If a lawyer is acting in his capacity as counsel for a party and gives an under taking, it is open to the Court to enforce the same even if it was given gratuitously. An undertaking can be enforced even though the lawyer's conduct involves no misconduct. Hamilton, J., observed in United Mining & Finance Corporation Ltd. v. Becher ( (1902) 2 K B 296 ) that the jurisdiction may be invoked not only to secure honesty, in its moral sense, in Court officers, but also to secure the "proper and professional observation of undertakings professionally given". He added: "The conduct which is required of solicitors is to this extent perhaps raised to a higher standard than the conduct required of ordinary men, in that it is subject to the special control which a Court exercises over officers so that in certain cases they may be called upon summarily to perform their undertakings, even where the contention that they are not liable to perform them is entirely free from any taint of moral misconduct." It is also no justification that such an officer was not bound by the undertaking because he was not served with the order containing the undertaking. In re: Galwandzed Tank Manufacturers' Association's Agreement ((1965) 2 All E R 1003) Megaw, P., said: "We would, however, emphasise that a company which has given an undertaking to the Court must be treated as having failed lamentably and inexcusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its respon sible officers, that those officers themselves, and anyone to whom they may delegate the handling of matters which fall within the scope of the under taking, do not forget or misunderstand or overlook the obligations imposed by such undertakings." If a person, bound by an undertaking, acts in viola tion of the same, though on the pretext that his action was backed by some legal advice, he renders himself liable for action. In re: Agreement of Mileage Conference Group of the Tyre Manufacturers' Conference Ltd. ( (1966) 2 All E R 849) certain tyre manufacturers had given an undertaking inter alia not to operate a certain scheme which the Restrictive Practices Court had declared con trary to public interest. A new scheme was devised and operated which was held to be a breach of the undertaking. The companies argued, however, that since they had relied upon legal advice that the new scheme would not amount to a breach of their undertaking, they could not be said to have committed contempt because the breach had not been contumacious. The Court held that although reliance on legal advice might be a mitigating factor provided that it was reasonable to rely on such advice, nevertheless a con tempt will still have been committed. Megaw, P., observed: "We con clude . . . . that the breaches of undertaking here were contempts of Court. even though it were to be shown that they were things done, reasonably and despite all due care and attention, in the belief, based on legal advice, that they were not breaches." Accordingly, we would hold that breach by a: party of an undertaking given to a Court by him or his counsel amounts to contempt of Court and is punishable brevi manu, and the party in contempt must wash the stain that is sticking to him by obeying the order of the Court which it may choose to make. However, before exercising such a wide jurisdiction, the Court must ensure that the undertaking was unambiguous and the breach was also clear beyond all reasonable doubt.

3. We now proceed to examine whether or not the respondents in the present case are guilty of contempt of this Court. When Writ Petition No. 257‑R of 1973 came up for hearing before one of us (Shameem Hussain Kadri, J.) Mr. Maqbool Elabi Malik, learned counsel for the Settlement Department, contended that since the petitioner had not approached the Settlement Department, in the first instance, the petition was premature. He, however, undertook that if the petitioner were to approach the Department ‑no action would be taken against her so long as the matter was not finally decided by the Department. On this statement of Mr. Maqbool Elahi Malik tbp writ petition was disposed of as premature. When the petitioner approached the Department, the Additional Settlement Commissioner ('Industries) passed the order, dated the 9th of June 1973 which resulted into initiation of proceedings in appeal by the petitioner whereupon the Settlemant Commissioner (Industries) passed his order, dated the 28th of March 1974 resuming the cinema, cancelling the auction and imposing attendant penalties. It is complained that these orders violate the undertaking given ; by the counsel ffor the Department. In the writ petition filed by the petitioner, the reliefs ,claimed were‑

(a) that the orders directing the petitioner to pay one‑fourth of the outstanding amount by cash and refusing to accept the compensation books from Sind Government be declared to be without lawful authority; and

(b) that the respondents be directed to adjust all the compensation books already given against the balance of the transfer price finally decided.

,So far as the first relief is concerned, the learned Additional Settlement Commissioner held; "I am in full agreement with the learned counsel for the petitioner that the Central Government allowed the transferee/auction purchaser to make payment by adjustment in the compensation books through association in 1971 on the usual terms and conditions. This was further clarified by the Central Government in their Letter No. F. 1(5)/71‑SLi, dated 24‑5‑1973 in which it has been decided that the entire outstanding transfer price may be allowed to be paid by adjustment against Compensa tion Books through Association. The condition of one‑fourth in cash is, therefore, withdrawn and the petitioner is directed to clear the entire out standing dues within thirty days' time". It is, therefore, manifest that by means of this order the petitioner was afforded the first relief which she had sought from the High Court through the writ petition.

4. The second relief claimed by the petitioner was also granted to her by the learned Additional Settlement Commissioner inasmuch as he required her to deposit m a week's time all the compensation books relating to Provinces other than Punjah, and issued a simultaneous direction to his own office to immediately move the other Provincial Governments for adjustment of the deferred amounts. In this context, he observed: "I have gone through the relevant provisions of law and have given deep and considerate thought to all aspects of this point. The Displaced Persons (Compensation and Rehabilita tion) Act, 1958 is a Central Statute and applies to the whole of the country. The provisions as contained therein do not debar a claimant displaced person from purchasing an evacuee property in any part of the country and pay the transfer price through deferred amount of his compensation book or if allowed to avail the facility of making payment through association deeds of Compensation Books of other claimants. Since there is no amendment in. law so far in the relevant provisions of the statute, the Settlement Authorities .concerned in every Province are bound to accept the Compensation Books for adjustment of the deferred amount towards the payment of the price of any ‑property transferred irrespective of the fact whether the said Compensation :

'Books have been issued by the Settlement Authority of the Province where the property is situated or not. The provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 being mandatory in nature

;have to be complied with and the present arrangement made by the Central Government distributing the assets and liabilities of the Settlement Organiza tion among the respective Provinces cannot stand in their way. In the result, therefore, the orders of the learned D. S. C. (Industries) returning the Agreement deeds and `W' Forms of Sind Province conveyed in Memorandum No. 401/B/73 dated 27‑2‑1973 are set aside. The petitioner is directed to deposit all the Compensation Books relating to Province other than Punjab within a week's time and the office should immediately move to other Provincial Governments for adjustment of the deferred amount of the Com pensation Books out of its compensation pool. In this view I am guided by the judgment dated 15‑5‑1973, given in Writ Petition No. 482/R‑1972 by his Lordship Mr. Justice Zaki‑ud‑Din Pal." We asked the learned counsel for ,the petitioner to show if any other relief had been claimed in the writ petition and the same had been refused by the learned Additional Settlement Com missioner, but he failed to bring to our notice any other relief which his client might have sought from the High Court.

5. So far as the order, dated the 28th of March 1974 passed by the Settlement Commissioner (Industries) is concerned, it too does not offend against the undertaking given by Mr. Maqbool Elahi Malik. The resump tion of the cinema from the name of the petitioner, the cancellation of auction .and the imposition of attendant penalties were the result of her alleged failure ,to make good the requisite payment. It was precisely this very reason which :prompted the Chief Settlement & Rehabilitation Commissioner to order that 4he cinema should be sealed forthwith. It is not denied that against they ,order of the Settlement Commissioner (Industries) the petitioner could avail of her remedies provided by law. The present petition is not, in our view, the ,roper mode to redress the grievance of the petitioner.

6. On the above view of the matter, we hold that the respondents have mot, in any way, violated the order of this Court, or the undertaking given by 'Mr. Maqbool Elahi Malik. On the other hand, the petitioner has been granted by the respondents all the reliefs which she had claimed through they writ petition. The respondents being not guilty of contempt of Court, the rule issued against them is hereby discharged.

Rule discharged.