GHULAM SARWAR Versus ALLAH WASAYA

ORDER

On 15-11-2000 the respondents filed a suit against the petitioners for a permanent injunction restraining them from encroaching upon land measuring 4 Kanals, 4 Marlas comprising Khasra No.2150/1-2-3 or A placing any Kiosk thereon. On 6-6-2002 Mr. Muhammad Abbas Ghaloo, Advocate; learned counsel for the petitioners made the following statement in Court:--

Urdu 1553-1554

The learned trial Court proceeded to observe that in the light of the said statement, the suit has become infructuous and it is dismissed. On 24-6-2002 respondents filed an application stating that in violation of said undertaking, the petitioners have placed a Kiosk on the said land. In reply the petitioners stated that they are abiding by the undertaking and had not made any interference with Khasra No.2150/1-2-3, their plea was that the Kiosk has been placed on some other land. The learned trial Court appointed a Local Commissioner who reported that the Kiosk is not in Khasra No.2150. This report was set aside and a Tehsildar was appointed as a Local Commissioner who reported that the Kiosk is in the said Khasra number. On 25-7-2003 an objection petition was filed by the petitioners that since no decree has been passed in favour of the respondents, execution by contempt cannot be ordered. This application was resisted. On 31-7-2003 the learned trial Court directed the removal of Kiosk. The respondents filed an appeal which was allowed by a learned Additional District Judge, Alipur, who remanded back the case to the trial Court with the direction that first the objection petition be decided and thereafter orders be passed. This was done vide order dated 19-4-2004. I may note here that the remand order was challenged by filing a civil revision in this Court which has admittedly been dismissed as withdrawn. After the remand, the objections filed to the said report were rejected and vide order dated 26-1-2005 removal was ordered. A first appeal filed by the petitioner was dismissed by a learned ADJ, Alipur, On 10-5-2005.

2. Learned counsel for the petitioners, with reference to the cases of Ch. Gulzar Khan and 3 others v. Saghir Ahmed and 7 others (2004 MLD 402); Muhammad Afzal Khan v. Muhammad Sadiq (2003 CLC 1318); Muhammad Fazil v. Ch. Muhammad Ashraf through his Legal Heirs and 6 others (1999 YLR 350) and Mst. Nasim Akhtar v. Rao Abdul Hameed and another (2001 SCMR 896) has argued that since a decree had not been passed, no proceedings under Order XXXI, Rule 32, C.P.C. were competent and the impugned orders are without jurisdiction.

3. I have gone through the copies of the records. So far as the merits of the case are concerned, admittedly, the petitioners gave an undertaking as noted by me above. The respondents alleged violation of the same and sought appropriate orders in contempt. Reply was filed reiterating the undertaking. The Tehsildar was appointed as a Local Commissioner with consent of the parties who filed a report that the Kiosk has been placed in Khasra No.2150/1-2-3 and not in Khasra No.2179 as alleged by the petitioners. I have examined the report and do B not find any error in the same. The remand order calling upon the trial Court to pass appropriate orders was not questioned as the civil revision was withdrawn. Post-remand proceedings were joined and the said order was passed.

4. Now coming to the said judgments being relied upon by the learned counsel for the petitioners, so far as the judgment of the Hon'ble Supreme Court in the case of Mst. Nasim Akhtar is concerned, I find that no such question was raised or decided there.

5. So far as the other three judgments passed by learned Single Judges of this Court are concerned, I am afraid the Full Bench judgment of this Court delivered by Chief Justice Sardar Muhammad Iqbal (as his Lordship then was) in the case of Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others (PLD 1976 Lahore 580) was not brought to the notice of their Lordship while passing the said judgments being relied upon by the petitioners. It was held that an undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction issued 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 fulfill the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places c himself in a perilous situation if later he commits a breach of an undertaking, and such a conduct on his part amounts to contempt of Court. Accordingly, it was held by the learned Full Bench 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 chooses to make.

6. In the instant case, a specific undertaking was given acting whereupon the learned Court choose to dismiss the suit as infructuous. The making of the said undertaking and its validity was never denied. On the other hand, throughout the case of the petitioners was that they are abiding by the said undertaking and have not violated the same. The finding recorded by the learned Courts below is that the undertaking has been violated. This being so, the petitioners are bound to obey the order of the learned trial Court directing to remove the Kiosk from the land of the respondents.

7. In respectful agreement with the judgment delivered by the learned Full Bench of this Court, I do hold that the impugned orders have been passed with jurisdiction rather it was incumbent upon the Court to enforce the said undertaking.

8. I may further note here that the observations made in the said judgment in the case of Ch. Gulzar Khan and 3 others, stand completely diluted by the parting note given by his Lordship at page 410 of the report. This civil revision is frivolous and is accordingly dismissed in limine.

9. A copy of this order be immediately remitted to the learned trial Court for further proceedings in the matter.

H.B.T./G-128/L Revision dismissed.