NAJMUDDIN Versus MUHAMMAD HUSSAIN

This appeal is directed against the order dated 5‑10‑1987 passed by the learned District Judge (South) Karachi in Civil Appeal No.120 of 1987 upon an application under Order 39 rule 2 (3) C.P.C. for the alleged breach of status‑quo. It seems that during the pendency of the above appeal the above status quo order was passed on 10‑5‑1987. The appellants who were also the appellants before the learned District Judge filed the aforesaid application dated 18‑5‑1987 for the alleged breach of the above status quo order. A Commissioner was appointed to visit the site who submitted his report which has been referred to in the order under appeal on 13‑7‑1987. The operative portion of the above order reads as follows:

"There are allegations by appellants for dis‑obedience of order of status quo, which is denied by respondent. The report of Commissioner shows that alleged construction was raised before order of status quo, but roof of suit property seems to be replaced on 15‑5‑1987 during the status quo order. Thus it is not established that construction was raised after status quo. The burden was on appellants to establish that respondent has violated the status qua order which they failed, hence no action is needed on this application which is dismissed."

It may be noticed that the learned District Judge has referred to the report of the Commissioner and also the factum that in the report it was stated that the roof seems to be replaced on 15‑5‑1987 but he has not held that the above Commissioner's observation was contrary to the factual position.

2. Mr. Khalilur Rahman, learned counsel for the respondent has pointed out that it has been the habit of the appellants to make similar allegations during the pendency of the suit, appeal and revision and this is in fact a repetition of the same type of allegation. It has further been contended that since the main appeal has already been disposed of on the ground that it was not maintainable, no purpose would be served if the case would be remanded to the District Judge.

3. On the other hand Mr. Ali Murtaza Hussain, learned counsel for the appellants has submitted that the present allegation of the appellants is supported by the report of the Commissioner which was based on the examination of four witnesses.

4. In my view, it will be just and proper to order that in case the appellants' revision No.246 of 1987 is allowed and the appeal is remanded back to the learned District Judge for deciding the same on merits, the learned District Judge shall re‑hear the above contempt application and it will be open to the appellants to urge whatsoever pleas they wish to urge. But in case the above revision is dismissed the above contempt application shall also stand disposed of in terms of the order under appeal.

This appeal is disposed of in the above terms with no order as to costs.

A . A. /N‑91/ K ‑‑‑‑‑ Order accordingly.