IN THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No. 131 of 2000
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Date |
Order with signature of Judge |
Present :
Mr. Justice Nadeem Akhtar
Mr. Justice Sadiq Hussain Bhatti
Appellants : Civil Aviation Authority, Tariq Mahmood and
Muhammad Anwer Khan, through
Mr. Zahid F. Ebrahim Advocate.
Respondent : Providence Aviation Services (Pvt.) Limited,
through Mr. Younus Saeed Advocate.
Date of hearing : 26.08.2014.
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J U D G M E N T
NADEEM AKHTAR, J. – This appeal is directed against the order passed on 25.04.2000 in Suit No.1540/1998 by a learned single Judge of this Court, whereby appellants 2 and 3 (the alleged contemnors 1 and 2) were punished by imposing fine of Rs.5,000.00 against each of them for committing contempt of the order dated 05.11.1999 (announced on 12.11.1999) passed in the said Suit.
2. The relevant facts of the case are that the respondent filed Suit No.1540/1998 at the original side of this Court against appellant No.1 and the Airport Manager, Quaid-e-Azam International Airport Karachi, for declaration and injunction. It was the case of the respondent that by virtue of agreement dated 10.11.1996 between them and appellant No.1, they were entitled to carry on their business of “meet and assist services” at the international and domestic arrival and departure lounges of Quaid-e-Azam International Airport Karachi with effect from 07.10.1996 ; and, in violation of the said agreement, appellant No.1 refused to allot them counters at the agreed locations, and also threatened to remove their existing counters and to stop them from carrying on their business. An injunction application was also filed by the respondent seeking restraining order against appellant No.1. On 09.12.1998, the parties were directed to maintain status-quo, and vide order passed on 05.11.1999 (announced on 12.11.1999), the injunction application filed by the respondent was granted by directing the defendants, including appellant No.1, “to allow the respondent to continue with the use of the counters in the lounge in payment of the necessary fee.”
3. On 11.01.2000, appellant No.1 issued a show-cause notice to the respondent, alleging that the respondent was indulging in illegal practice of harassing the passengers at the airport in clear violation of Clause 7 of the license agreement dated 10.11.1996. Through this show-cause notice, which was signed by appellant No.2 on behalf of appellant No.1, the respondent was called upon to show cause as to why the said license agreement should not be terminated under Clause 8(b) thereof. The show-cause notice was duly replied by the respondent on 11.01.2000. On 15.01.2000, the respondent filed C.M.A. No.197/2000 praying that action should be taken against appellants 2 and 3 and the S.D.M. Karachi Airport for violating the injunction order passed on 05.11.1999. After hearing the learned counsel for the parties, the learned single Judge observed that since the S.D.M. Karachi Airport / alleged contemnor No.3 had tendered unconditional apology at the first hearing, he deserved leniency. Therefore, no adverse order was passed against him except that he was warned to be careful in future. In their counter affidavits to C.M.A. No.197/2000, appellants 2 and 3 / alleged contemnors 1 and 2 had stated that they had great respect for the Court and they could not even perceive of committing contempt of the Court’s order or violating the same. However, the learned single Judge came to the conclusion that they were liable to be punished. Accordingly through the impugned order, a fine of Rs.5,000.00 each was imposed on them for committing contempt of the Court’s order.
4. Mr. Zahid F. Ebrahim, learned counsel for the appellants, argued with vehemence that the impugned order is not sustainable in law as punishment for committing contempt of the Court’s order could not be awarded to appellants 2 and 3 without issuing them a show-cause notice, without framing charge against them and without proper trial. He submitted that the impugned order is liable to be set aside on this ground alone. In support of this submission, he placed reliance upon the cases of Muhammad Sadiq Leghari, Registrar High Court of Sindh, PLD 2002 Supreme Court 1033, and English Biscuits Manufacturers (Private) Limited (EBM) and 6 others V/S Associated Biscuits International Limited through Attorney, 2005 CLD 430. The learned counsel contended that without prejudice and in addition to his above ground, his further submission would be that the injunction order did not restrain appellant No.1 in any manner from invoking any of the clauses of the license agreement, or from acting upon the agreement, or from terminating the same. It was urged that the impugned order is harsh, illegal and is liable to be set aside.
5. Mr. Younus Saeed, learned counsel for the respondent, conceded that before passing the impugned order of punishment / conviction of appellants 2 and 3, no show-cause notice was issued to them, nor was any charge framed against them, and nor was any formal trial conducted in this behalf. He, however, relied upon the case of Messrs Yousuf Sons and another V/S Muhammad Khalid and others, PLD 2005 Karachi 316, wherein it was held inter alia by a learned Division Bench of this Court that proceedings initiated on the basis of a contempt application were not in stricto senso criminal proceedings, therefore, it was not necessary for the Court to have framed formal charge against the appellants in the cited case ; on service of notice of contempt proceedings, the appellants were well-informed and aware about initiation and pendency of contempt proceedings against them and its ultimate consequences ; in this background of the matter, full opportunity was afforded to them to meet the case with reference to violation of the order in question which was admittedly in their knowledge at the time of commission of acts forming basis for initiation of contempt proceedings for violation of injunction order by them ; and, therefore, the contention that non-framing of charge / issues or non-affording an opportunity of hearing to them before ordering their conviction by the impugned order, had no force. By supporting the impugned order, the learned counsel for the respondent contended that the contempt committed by appellants 2 and 3 was obvious and was of such a nature that there was no need to issue show-cause notice to them, or to frame charge against them, or to decide the question of contempt after trial in view of the case of Messrs Yousuf Sons (supra) relied upon by him.
6. We have heard the learned counsel for the parties, and with their able assistance have also examined the material available on record as well as the law cited by them at the bar. In the case of Muhammad Sadiq Leghari (supra) relied upon by the learned counsel for the appellants, the Larger Bench of 14 Honourable Judges of the Supreme Court of Pakistan was pleased to observe that in the initial order passed by the Honourable three member Bench of the Supreme Court in pursuance of which the proceedings were initiated against the appellant in the cited case, notice for contempt of Court had not been issued to him ; and, he was directed to show cause as to why action for willful disobedience of lawful order of the Court be not initiated against him. It was held inter alia that after considering the pleas raised by him in his reply to the show-cause notice, it was required that a decision should have been taken first by application of judicial mind to the facts and circumstances of the case along with the material brought on the record while considering the pleas raised by him as to whether it was a fit case for proceeding against him for contempt of Court ; and, in case the Bench had decided to proceed further, the procedure as laid down in the Contempt of Court Act, 1976, and in particular Section 7 thereof, had to be followed in that a formal show-cause notice of contempt containing charge-sheet in clear terms was to be issued and inquiry held and thereafter decision taken whether he was guilty of contempt of Court. After holding as above, it was observed by the Honourable Larger Bench that the above reasons were sufficient to remit the case to the learned three member Bench for proceeding further, but it was not found necessary for the reasons stated in the judgment. The appeal was allowed by setting aside the impugned judgment of conviction of the appellant in the cited case and by discharging the notice issued to him.
7. By following the above-cited authority of the Honourable Supreme Court, it was held by a learned Division Bench of this Court in the case of English Biscuits Manufacturers (Private) Limited (EBM) (supra), relied upon by the learned counsel for the appellants, that no doubt the Court could also punish persons guilty of disobeying an order of injunction under Order XXXIX Rule 2(3) CPC, but it was doubtful whether the kind of order disobeyed in the said case fell under Order XXXIX Rule 2(1) CPC, or punishment could be imposed in proceedings other than those to which the order related. It was further held that in any event the said provisions of CPC only provide for attachment of property or imprisonment, and apparently no fine could be imposed. In view of the above findings, the penalty imposed for contempt was set aside by the learned Division Bench.
8. In Messrs Yousuf Sons (supra) relied upon by the learned counsel for the respondent, it was specifically observed that disobedience of the order passed in Suit on the injunction application with full knowledge, was not denied by any of the appellants / contemnors ; the law does not permit parties to violate the order of the Court by mutual understanding, consent, agreement or compromise, as had been pleaded by the appellants / contemnors ; prima facie a collusive game of fraud had been played by the appellants / contemnors for violation of the said order ; their conduct during the pendency of the contempt application filed in Suit against them was throughout contumacious ; and, if the counter affidavits filed by them in reply to the said contempt application were taken at their face value, then too gross and deliberate violation of the said order stood conclusively proved against them. In view of the above observations and admitted disobedience by the appellants / contemnors, their appeal was dismissed and the sentence against them was maintained. After closely examining the case of Messrs Yousuf Sons (supra) and the case in hand, it is our considered view that the facts and circumstances of both the cases are clearly disguisable. In the instant case, disobedience of the Court’s order was never admitted by any of the appellants 2 and 3 ; nor was it pleaded by them that the alleged disobedience / contempt was due to any consent, mutual understanding, agreement or compromise between the parties ; it has not been held in the impugned order that their conduct during the pendency of the contempt application filed in Suit against them throughout remained contumacious ; and, there is no finding of collusion or fraud against them in the impugned order. The ratio of Messrs Yousuf Sons (supra), therefore, cannot be applied in the present case.
9. With reference to the controversy involved in the present case, we would like to refer to the case of Raja Talat Mahmood V/S Ismat Ehtishamul Haq, 1999 SCMR 2215, wherein the Honourable Supreme Court of Pakistan was pleased to hold that the party facing the charge of disobedience or breach of the terms of injunction / status quo order under Order XXXIX Rule 2(3) CPC, should be conscious and aware of the charge against him vis-à-vis violation of such order, and proper opportunity should be afforded to him to defend himself.
10. It is an admitted position in the instant case that before passing the impugned order of the punishment / conviction of appellants 2 and 3, no show-cause notice was issued to them, nor was any charge framed against them, and nor was any formal trial conducted in this behalf. In view of the authoritative pronouncement by the Honourable Larger Bench of the Supreme Court of Pakistan in the case of Muhammad Sadiq Leghari (supra), notice for contempt of Court ought to have been issued to appellants 2 and 3 by the learned single Judge before proceeding against them for the alleged contempt of Court ; after considering the pleas raised by them in their reply to such notice, a decision ought to have been taken first by application of judicial mind to the facts and circumstances of the case along with the material brought on the record while considering the pleas raised by them as to whether or not it was a fit case for proceeding against them for contempt of Court ; and, in case the learned single Judge had decided to proceed further, only then the procedure laid down in the Contempt of Court Act, 1976, and in particular Section 7 thereof, had to be followed by issuing a formal show-cause notice of contempt to appellants 2 and 3 containing charge-sheet in clear terms, then by holding an inquiry into the matter, and thereafter by deciding whether the said appellants were guilty of contempt of Court or not. Since the above procedure was admittedly not adopted, the impugned order of conviction and sentence of appellants 2 and 3 is not sustainable in law and is liable to be set aside.
11. Foregoing are the reasons of the short order announced by us on 26.08.2014, whereby this appeal was allowed, the impugned order was set aside, and the Nazir was directed to return to appellants 2 and 3, after proper verification and identification, the amount of fine deposited by them in pursuance of the impugned order.
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J U D G E
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J U D G E