Violation of order 39 rule 1 and 2 .

The case involves a dispute over possession of property between the petitioners and respondents. Initially, the petitioners filed a suit for specific performance against the respondents and also sought a temporary injunction, which was dismissed by the trial court. The petitioners appealed this decision, and the appellate court granted the injunction. Subsequently, the respondents filed an application seeking restoration of possession of the property based on an appeal decision. The appellate court accepted this application, leading to the petitioners filing a revision petition challenging the decision.

During the hearing, the Lahore High Court emphasized that the appropriate legal remedy for seeking restitution of possession, in the event of a violation of an injunctive order, was to file an application under Order XXXIX, Rule 2-C read with section 144 of the Code of Civil Procedure, 1908 before the court of first instance (the civil court where the suit between the parties is pending). Since the matter was still sub-judice before the trial court, the court concluded that the application filed by the respondents under different sections and rules was not proper and hence dismissed it. As a result, the revision petition filed by the petitioners was accepted, and the impugned order passed by the appellate court was set aside, resulting in the dismissal of the application filed by the respondents seeking restoration of possession.

The unique point the court decided regarding Order XXXIX, Rule 1 and 2 was that the appropriate legal remedy for seeking restitution of possession, in case of a violation of an injunctive order, was to file an application under Order XXXIX, Rule 2-C read with section 144 of the Code of Civil Procedure, 1908 before the court of first instance (the civil court where the suit between the parties is pending). The court clarified that this remedy was applicable when the matter was still sub-judice before the trial court. The court emphasized that the application filed by the respondents under different sections and rules, including Order XXI, Rule 101, was not maintainable because it related to the right of a third person in possession of the property, not the parties to the suit.

Stereo. HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Civil Revision No.44458 of 2021

Muhammad Rehman and others

VERSUS

Asim Rasheed and others

JUDGMENT

Date of Hearing: 13.03.2024

Petitioner(s):

Syed M. Shah, Advocate

Respondent(s):

Chaudhry Umar Farooq Cheema,

Advocate

SHAHID BILAL HASSAN-J:

C.M.No.01 of 2023

Through this application, the applicants

seek restoration of the captioned revision petition,

which was dismissed for non-prosecution on

10.04.2023. Relying upon contents of the application

adorned with an affidavit, the same is allowed subject

to all just and legal exceptions and the office is directed

to fix the main petition for today.

Main Petition

Succinctly, father of the petitioners

instituted a suit for specific performance against t

C.R.No.44458 of 2021

respondents. Alongwith the suit an application for grant

of temporary injunction under Order XXXIX, Rules 1

and 2, Code of Civil Procedure, 1908 was also filed.

The suit and application were resisted by the

respondents. The learned trial Court, after hearing

arguments, dismissed application for grant of temporary

injunction vide order dated 17.12.2015. The petitioners

being aggrieved preferred an appeal before this Court

but due to enhancement of pecuniary jurisdiction, the

same was remitted to the District Courts and the learned

appellate Court vide order dated 14.12.2016 accepted

the appeal and passed restraining order as to change of

possession of the suit property. The respondents filed

an application under section 36, 94(c), 151, read with

Order XXXIX Rule 2 and Order XXI, Rule 101, Code

of Civil Procedure, 1908 for restoration of possession

of four shops and a hall, situated at Sialkot road

according to appeal decided on 14.12.2016, which was

resisted by the present petitioner(s). The learned

appellate Court vide impugned order dated 26.06.2021,

accepted the said application and ordered to issue

Robkar in the name of the respondents qua delivery of

possession of the suit property forthwith; hence, the

instant revision petition.

Heard.

C.R.No.44458 of 2021

It is an admitted fact on record that the

learned appellate Court vide judgment dated 14.12.2016

accepted the application for grant of temporary

injunction while allowing appeal filed against order

dated 17.12.2015. The learned appellate Court after

deciding the appeal on 14.12.2016 had become functus

officio, because no matter remained pending with it and

the suit inter se the parties was sub-judice before the

learned trial Court. If any violation of order dated

14.12.2016 was committed by either of the party, the

aggrieved person had remedy of filing application

under Order XXXIX, Rule 2-C read with section 144 of

the Code of Civil Procedure, 1908 seeking restitution of

possession and contempt proceedings for violation of

the Court’s order. For ready reference, the said

provisions of law are reproduced infra:-

‘144. Application for restitution. (1)

where and insofar as a decree is varied or

reversed the Court of first instance shall,

on the application of any party entitled to

any benefit by way of restitution or

otherwise, cause such restitution to be

made as will, so far as may be, place the

parties in the position which they would

have occupied but for such decree or such

part thereof as has been varied or

reversed; and, for this purpose, the Court

may make any orders, including orders for

C.R.No.44458 of 2021

the refund of costs and for the payment of

interest, damages, compensation and

mesne profits, which are properly

consequential on such variation or

reversal.

(2)

no suit shall be instituted for the

purpose of obtaining any restitution or

other relief which could be obtained by

application under sub-section (1).’

Sub-Rule 2-C of Order XXXIX, Code of Civil

Procedure, 1908:

‘2-C Consequences of disobedience or

breach of injunction: (1) In case of

disobedience of any injunction granted or

other order made under rule 1 or rule 2 or

breach of any of the terms on which the

injunction was granted or the order made,

the Court to which the suit or proceeding

is transferred, may order the property of

the person guilty of such disobedience or

breach to be attached, and may also order

such person to be detained in the prison

for a term not exceeding three months,

unless in the meantime the Court directs

his release.

(2) ………………………...........................’

In view of the above said provisions of law, the Court

of first instance, where the suit was pending and subjudice, had to be resorted to for redressal of grievance

because law has provided a sufficient remedy in th

C.R.No.44458 of 2021

form of filing an application under Order XXXIX, Rule

2-C read with section 144, Code of Civil Procedure,

1908 in case of any violation of the injunctive order

passed in favour of a party. The application under

section 36, 94(c), 151 read with Order XXXIX, Rule 2

and Order XXI, Rule 101, Code of Civil Procedure,

1908 was not maintainable before the learned appellate

Court, because Rule 101 of Order XXI, Code 1908

cannot be read in isolation rather the same would be

considered and read with preceding Rule 100. Both the

said Rules are reproduced for ready reference:

‘100. Dispossession by decree-holder or

purchaser. (1) Where any person other

than the judgment-debtor is dispossessed

of immovable property by the holder of a

decree for the possession of such property

or, where such property has been sold in

execution of a decree, by the purchaser

thereof, he may make an application to the

Court complaining of such dispossession.

(2)

The Court shall fix a day for

investigating the matter and shall summon

the party against whom the application is

made to appear and answer the same.

101. Bona fide claimant to be restored to

possession. Where the Court is satisfied

that the applicant was in possession of the

property on his own account or on account

of some person other than the judgment-

C.R.No.44458 of 2021

debtor, it shall direct that the applicant be

put into possession of the property.’

The above provisions of law vividly demonstrate that

the same relate to right of a third person who is in

possession of the property, for which a decree is passed

and not related to the parties to the suit. However, here

the matter is still sub-judice before the learned trial

Court and has not finally been decided; therefore, the

proper remedy as observed above was not under

sections 36, 94(c), 151 read with Order XXXIX, Rule 2

and Order XXI, Rule 101, Code of Civil Procedure,

1908 rather was under Order XXXIX, Rule 2-C read

with section 144, Code of Civil Procedure, 1908, that

too, before the Court of first instance i.e. civil Court

where the suit inter se the parties is pending.

For the foregoing reasons, it is concluded

that the learned appellate Court has wrongly exercised

vested jurisdiction while passing the impugned order

dated 26.06.2021, which cannot be allowed to hold

field further.

Resultantly, while exercising jurisdiction

under section 115, Code of Civil Procedure, 1908, the

revision petition in hand is accepted, impugned order

dated 26.06.2021 passed by the learned appellate Court

C.R.No.44458 of 2021

is set aside, consequent whereof the application filed

under sections 36, 94(c), 151 read with Order XXXIX,

Rule 2 and Order XXI, Rule 101, Code of Civil

Procedure, 1908 by the respondents stands dismissed.

No order as to the costs.

SHAHID BILAL HASSAN

Judge

Announced in open Court on ___________.

Judge

Approved for reporting.

Judg

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