PROVINCE OF PUNJAB Versus ZAFAR ALI SHAH

1. WALI MUHAMMAD KHAN, J.‑ The Province of Punjab through Collector, Rawalpndi, petitioner herein, through the instant petition under Article 204 of the Islamic Republic of Pakistan, 1973, prays for initiation of contempt of Court proceedings against the respondent.

2. The petitioner filed a Civil Petition for Leave to Appeal No.344 of 1993 in this Court challenging the orders dated 5‑4‑1993 and 6‑2‑1993‑passed in C.M.No.464‑C/93 and C.M.No.452‑C/92 in R.FA. No.28 of 1992, whereby the learned Division Bench of the Lahore High Court declined to stay the execution of the decree passed by the trial Court dated 9‑6‑1992. Alongwith the petition an application for suspension of the operation of the impugned decree of the trial Court was also filed which was registered as C.M.P. No. 256 of 1993 which came up for hearing before Mr. Justice Abdul Qadeer Chaudhry, in chamber, who suspended the operation of the decree dated 9-6‑1992 till the decision of the main petition vide order dated 7‑8‑1993.

3. In the instant petition it is contended that the respondent, on 21‑8‑1993, in spite of the knowledge of the stay order, started construction of 50 ft. long and 2‑1/2 ft. high wall on the spot in dispute and the Tehsildar of the area, under orders of the petitioner, tried to prevent him from construction, showing him the stay order of this Court but the respondent and his father Qalandar Ali Shah completed the wall in dire disregard of the stay order issued by this Court thereby making themselves liable for contempt of Court. In support of the application two affidavits have been annexed, one of Muhammad Hussain, Tehsildar to the effect that on 8‑8‑1993 he informed Qalandar Ali Shah, father of the respondent, about the stay order issued by this Court and the second by Rabnawaz Tehsildar to the effect that on 21‑8‑1993 the respondent had started construction of the wall and that he informed him, in writing, about the order of this Court and tried to persuade him to desist from construction but his workers did not desist. The allegations have been controverted by the respondent through affidavit wherein it is stated on oath that the construction had been completed on 31‑7‑1993 and that the stay order was seined on 22‑8‑1993 by the executing Court and they had no knowledge of the stay order prior thereto and that no violation of the stay order has been made. Certified copy of the order of the executing Court has been annexed with the affidavit.

4. Admittedly, the stay order was passed in the absence of the respondent and as long as it had not properly been served upon the respondent they cannot be attributed any knowledge of the issuance of the stay order. The affidavit of the Tehsildars furnished by the petitioner does not disclose that the deponents were in possession of the certified copy of the order of this Court and had shown the same to the respondent, rather, on the contrary, it is clear from the record that no certified copy had been obtained by them at that time. It is conceded by the learned counsel for the petitioner as well, that the certified copy of the order was obtained subsequently.

5. In the circumstances, we do not find it a fit case for initiation of the contempt proceedings and accordingly dismiss the instant petition.

6. A.A./P‑222/S ????????????????????????????????????????????????????????????????????????? Application dismissed.