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
2
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.
2.
Heard.
C.R.No.44458 of 2021
3
3.
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
4
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
5
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
6
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.
4.
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.
5.
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
7
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
Comments
Post a Comment