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Civil Revision No.280 of 1974, decided on 13th October, 1986.

Civil Procedure Code (V of 1908)--

---O.XXXIX, R.2(3) & S.115--Violation of interim order--Proof- Petitioner not only failed to establish any violation of interim order alleged to be committed by respondents, but Court after carefully considering report of Commissioner appointed to investigate matter of alleged violation of interim order, also was satisfied that contemners mentioned in application had neither violated interim order nor any case for taking action against them under O.XXXIX, R.2(3), C.P.C., has been made out by petitioner--Revision being devoid of merit, was dismissed.

The petitioner has prayed in his application under Order 39 Rules 2(3), C.P.C. for action against the officials of Evacuee Trust Property Board, Karachi named in the application. It is alleged that these officials have violated and/or committed breach of the order, dated 4-2-1975 passed by this Court on the interim application of the petitioner. The Court vide order, dated 13-1-1985 appointed a Commissioner to record evidence of the parties on the above application which has since been recorded. The Court by another order, dated 8-12-1985 also appointed a Commissioner to inspect Nag Nath Mandir Akhara, Gujrat Nagar Shiva Temple, Lakhpatia Mahajan Community Mandir, Mahadam Mandir and Chita Kashir Mandir and submit his report with regard to the existing conditions of these properties. This report has since been submitted. After hearing the learned counsel for the parties and considering the material on record I am satisfied that no case for taking action against the officials named in the application is made out.

2. The petitioner has ailed following specific acts on the parts of contemnors in respect of the properties involved in the application.

It is alleged that this Mandir has been demolished by the contemnors in contravention of the order, dated 4-2-1975. However, after some arguments the learned counsel did not press the grievance of petitioner in respect of this property.

It is alleged that this Man dir has been closed in October, 1984 and shops constructed around the Mandir have been let out by the Department.

It is alleged that the respondent shifted their office in this Mandir in the year 1978 which amounted to breach of the order referred to above.

It is alleged that the plot bearing No.607 which is attached to this Mandir has been separated by the respondent by constructing a wall.

All the above allegations made by the petitioner are refuted by the respondents. Before examining the alleged acts of violation of the contemnors it will be useful to reproduce here the order, dated 4-2-1975 which is the basis of present application by the petitioner. It reads as follows:-

"By consent the respondents could not interfere with the management of the temple but the property attached to the temple will be managed by the respondents as before till the disposal of revision application".

A careful reading of the above order will show that the petitioners were presumed to be in the control and management of the temples referred to in the petition above and respondents were restrained from interfering with the management of these temples by the petitioner. However, with regard to other properties which were attached to the temples the right to manage and deal with the same as before, by the respondents was preserved. It is, therefore, necessary in order to succeed in the above application the petitioner must establish interference by the respondents or their officials named in the applicant with the right of management exercised by the petitioner.

The allegation of the petitioner with regard to this Mandir is that it was closed down by the respondents in or about October 1984. The allegation has been refuted by the Department who stated that they have taken no steps whatsoever in closing down any of the Mandirs, including the above one. The petitioners in his statement before the Commissioner recorded on 8-5-1985 stated that the Nag Nath Mandir was closed by the Board and in its area shops and godown are constructed and given on rent. In cross-examination the petitioner admitted that he personally visited Nag Nath Mandir and that his last visit was 6 months before he was examined in the Court. He, however, could not say if the Mandir was intact and its gates were always closed. He also admitted that the old shop adjacent to Mandir belonged to K. M. C. Ht further stated that the passage for ingress and egress to the Mandir is open. The other witness Mukhi Chitromal, in his evidence stated that this Mandir has been closed down for the last 8 months and a part of it has been given on rent. In cross-examination his witness admitted that Nag Nath Mandir is situated in Bheempura which is about half mile from his residence and that he never visited this Mandiz for worshiping. He also stated that he could not name any official who had closed down the Mandir. He, however, denied the suggestion that the Mandir is closed since partition. The respondents in their evidence categorically stated that they have neither closed nor had taken any steps for closing the above Mandir. No where in the evidence of petitioner there is mention of any of the contemners that they personally took steps to close the Mandir. There is also no reliable evidence in support of the assertion made by the petitioner that respondents had closed down the Mandir. There is categorical denial by the respondents and the alleged contemners that they had taken any action for closing down the above temples. I accordingly hold that the petitioner had failed to establish any violation of the order, dated 4-2-1985 with regard to Nag Nath Mandir.

The petitioner has alleged that the respondents shifted their office in this Mandir after passing of the order, dated 4-2-1975. The shifting of the office of the respondent in 1977-78 is not disputed. The case of the respondents, however, is that there was no Mandir at all in this building at any time. It is claimed by the respondents that prior to the shifting of the office of the respondent the building was first occupied by the office of Indian Embassy and then by Social Welfare Department who were paying rent to the respondents. In support of this assertion he respondent has produced photo copy of rent receipt issued to the Social Welfare Department by respondents in the year 1973. The petitioner and his witness in the cross examination also admitted that this building was occupied after partition by' the Indian High Commissioner and thereafter it remained in occupation of different Government offices from time to time. In fact ore of the witnesses of the petitioner admitted in cross-examination that the office of the Indian High Commission was housed in this building for about 8 to 10 years after partition. In these circumstances the shifting of the office of the respondents in the year 1977 could not amount to any breach of the order, dated 4-2-1975 as it was consequent upon the vacation of the building by Social Welfare Department who were tenant of the building. The site inspection report of the Commissioner also substantially confirmed the stand of respondents.

The allegation of petitioner with regard to this Mandir is that the respondents in the year 1984 constructed a wall to separate the compound from the Mandir which was a part of the Mandir. The petitioner in his evidence before the commissioner stated that the respondents constructed a boundary wall for separating the Mandir from its courtyard and then disposed of the separated portion to a third party in November, 1984. In cross-examination he admitted that Mandir is intact. He denied the suggestion that what was separated from the Mandir was plot No.607 and not the courtyard of the Mandir. The witness of the petitioner Mukhi Chitromal in his evidence admitted that the temple Gujrat Nagir Mandir is open for worship. He, however, claimed in his examination in chief that other plot which is portion of temple was sold by the Evacuee Trust Board for Rs.18 lacs. In cross-examination he admitted that there is no Mandir on plot No.607 and he also stated that there is easy access to the Mandir from both sides. He further stated that the could not give the name of the person to whom the plot has been sold. The respondents' witness in his evidence stated that the Gujrat Nagar Mandir is intact and is located on plot No.606. He also stated that there is a free access to this Mandir from both the sides. He further stated that plot No.607 is a separate plot which was auctioned in favour of Messrs Saeeda Construction Co. and in respect whereof a litigation is pending before this Court. There is no evidence on record to show that Plot No.607 is courtyard of above temple. The mere fact that plot No.607 was attached to the Mandir is not sufficient to establish any violation on the part of respondents as the order, dated 4-2-1975 put no restraint on the respondents to deal with properties attached to Mandir. Learned counsel for the respondents contends that pier 'to the present application the petitioner had made several applications alleging violation on the part of respondent but they were dismissed for non-prosecution. In this connection learned counsel specifically invited my attention to C. M. A . No.1883/81 in which 'precisely the same allegations as are made in the present application were made against the contemnors but this application was dismissed for non-prosecution on 20^th September, 1981 with the direction that the petitioner should pay Rs.250 to each of the alleged contemnors who were present in Court on that date. The learned counsel for the respondents and the contemnors accordingly contended that the present application is mala fide one and is only aimed at harassing the respondents. After hearing the learned counsel for the parties I am satisfied that the contemners mentioned in the application have neither violated the order, dated 4-2-1975 nor there existed any reasonable ground for filing of the present application. I accordingly dismiss this application and direct that the petitioner will pay costs of Rs.500 to the respondents.

H.B.T./M-80/K. Application dismissed.

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