ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

I. A. No.28 of 2011

Date Order with signature of Judges

Before:

Mr. Justice Aqeel Ahmed Abbasi, J

Mr. Justice Muhammad Junaid Ghaffar, J

1. For hearing of CMA No.2511/2014 (U/S 3 & 4 of the Contempt of Court Act, 2012)

2. For hearing of CMA No.2378/2014 (U/S 152 read with Section 151 CPC)

16.01.2015.

Khawaja Shams-ul-Islam, advocate for the appellant.

Mr. Ghulam Rasool Korai, advocate for the respondent.

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O R D E R

2. CMA No.2378/2014

(i) Through listed application, filed under Section 152 read with Section 151 CPC on behalf of the respondent bank, after disposal of the instant appeal vide consent order dated 20.08.2014, wherein, the respondent has sought rectification of error in the aforesaid order, as according to the learned counsel for respondent, due to accidental slip and omission the amount of markup and cost of suit have been omitted to be mentioned in aforesaid order. It has been further stated that name of counsel appearing on behalf of the respondent bank has been incorrectly mentioned as Zohaib Zulfiqar Sarki instead of Ghulam Rasool Korai.

(ii) Notice of the listed application was issued to the appellant, who has filed Counter Affidavit in reply to the listed application, wherein, maintainability of the listed application has been vehemently opposed.

(iii) Learned counsel for the respondents submits that during the course of hearing of the instant appeal certain proposals were made for disposal of the instant appeal, whereafter, the appeal was finally disposed of by consent vide order dated 20.08.2014, whereas, in the impugned order, the amount of markup Rs.4,34,520.97 and costs of suit Rs.33,348.00 has not been mentioned due to error or omission, which amount, according to learned counsel, is required to be paid over and above the amount which has been mentioned in the order dated 20.08.2014 as per settlement between the parties. It has been prayed that the order may be recalled and modified by making necessary correction and the aforesaid amount of markup and costs of suit may be paid by the appellant to the respondent bank.

(iv) Conversely, learned counsel for the appellant has vehemently opposed the contention of the learned counsel for the respondent and submitted that inspite of the fact that the appellant had a good prima-facie case on merits, however, in order to avoid day and any further litigation, the appellant agreed for the disposal of the instant appeal by consent of the respondent in terms of the settlement as recorded in orders dated 14.05.2014 and 20.08.2014, wherein, the entire terms and conditions of the settlement and the amount to be paid by the appellant to the respondent bank have been clearly reflected, whereas, there is no ambiguity or error in the consent order passed by this Court while disposing of instant appeal nor there is any error or omission as alleged by the respondent in the listed application, which may require any modification or correction by this Court. Per learned counsel, the appellant has complied with the directions of this Court as contained in the order as referred to hereinabove, whereas, the respondent bank has failed to comply with such directions and thus committed contempt of Court for which the appellant has filed an application under Section 3 and 4 of contempt of Court Act, 2012 i.e. CMA No.2511/2014, which has also been fixed for hearing along with listed application. Per learned counsel, the listed application is misconceived in law and facts and the provisions of Section 152 CPC are not attracted in the instant case as no error or omission whatsoever has been committed by this Court while disposing of the instant appeal through consent order. Per learned counsel, the scope and mandate under Section 152 CPC is otherwise very narrow and restrictive as it applies in a case of some inadvertent clerical or arithmetical error or omission, whereas, it cannot be used as a tool for seeking modification or amendment of an order passed by consent of the parties by dictating the order in Court in presence of the counsel for the parties. It has been contended by the learned counsel for the appellant that instant application has been filed with malafide intention by making certain allegations, which are not duly supported by any material, hence the same is liable to be dismissed with cost, whereas, the alleged contemnor, who deliberately did not comply with the consent order passed by this Court, may be prosecuted for having committed contempt of Court.

(v) We have heard the learned counsel for the parties and perused the record with their assistance. It appears that Instant appeal, which was pending disposal since 2011 finally came up for hearing before this bench when it was heard at some length on 14.05.2014 and following order was passed:-

“After hearing both the learned counsels at some length, it appears that they have agreed for the disposal of instant appeal through settlement. However, the only dispute remains with regard to calculation of cost of funds which is being claimed by the respondent bank from 17.5.2006 till realization whereas counsel for the appellants submits that since the amount was deposited with the Nazir of this Court pursuant to order of this Court on 09.12.2012, therefore, the cost of funds thereafter may not be allowed. However, it has been stated that the amount was invested in the profit bearing scheme, the appellants will forego that amount which may be allowed to be disbursed in favour of the respondent bank, if they are agreeable to such settlement.

Learned counsel for the respondent requests for time to seek instructions in this regard. By consent adjourned to 28.5.2014 at 11.00 A.M. In the meanwhile Nazir is directed to submit report with regard to the investment of amount and profit accrued thereon.”

(vi) Pursuant to aforesaid order, whereby the learned counsel for the respondent bank requested for time to seek instructions with regard to the proposal relating to calculation of cost of funds, the appeal was taken up for hearing on 20.08.2014 and after hearing both the learned counsel for the parties and with their consent the order was passed in the open Court and the appeal was finally disposed of. From perusal of the order dated 20.08.2014 passed by this Court, it appears that the settlement reached between the parties has been duly recorded in detail, whereas, admittedly, in the order dated 20.08.2014 was dictated in the open Court in the presence of both the learned counsel for the parties, who did not point out any error and/or omission regarding settlement between the parties. Noting of the Deputy Nazir shows that the appellant has complied with the order passed by this Court, whereas, the respondent bank, instead of complying with the directions of this Court has chosen to file listed application under Section 152 read with Section 151 CPC, seeking rectification of the order passed by this Court with the request to include the amount of markup and costs of suit, which according to learned counsel for the respondent, could not be mentioned due to inadvertence or omission by this Court while passing the aforesaid consent order. Nothing has been shown or referred from the record to substantiate the contention of the learned counsel for the respondent to the effect that the amount of markup and costs of suit was also part of the settlement between the parties. Whereas, nothing can be presumed or read in the consent order, at the behest of a party, once the matter is finally disposed of in terms of the settlement between the parties, without considering the merits or evidence of the case. We are of the considered opinion that the respondent could not make out a case for seeking rectification or correction under Section 152 CPC of the consent order passed by this Court on 20.08.2014 pursuant to order dated 14.05.2014, whereas, the scope of Section 152 is otherwise limited only to the extent of making correction of some clerical or arithmetical error, which is not the case in the instant matter. Accordingly, instant application being devoid of any merits is hereby dismissed.

1. CMA No.2511/2014

(i) Listed application has been filed on behalf of the appellants under Sections 3 & 4 of the Contempt of Court Act, 2012, on the ground that the alleged contemnor i.e. President, UBL, has deliberately failed to comply with the consent order passed by this Court on 20.08.2014, whereas, the appellants have already acted upon such order and performed their part of obligation. Learned counsel for the applicant submits that a consent order passed by this Court in terms of settlement reached between the parties as reflected in order dated 20.08.2014 is binding on both the parties, whereas, according to learned counsel for the appellant, the alleged contemnor/respondent in order to frustrate the enforcement of compromise order passed by this Court instead of complying with the order of this Court has filed a frivolous application i.e. CMA No.2378/2014 under Section 152 read with Section 151 CPC seeking rectification, correction of alleged error and omission in the said order. Per learned counsel, the alleged contemnor has deliberately violated the consent order passed by this Court, therefore, provisions of Contempt of Court are attracted, hence the alleged contemnor may be punished under the Contempt of Court Act, 2012.

(ii) Conversely, learned counsel for the respondent/alleged contemnor submits that no violation or defiance of the order of this Court has been committed by the alleged contemnor, whereas, prior to filing of the listed application under the Contempt of Court Act, 2012 read with Article 204 of the Constitution, respondent bank has already filed an application under Section 152 read with Section 151 CPC seeking rectification of an error, therefore, the allegation as contained in the listed application are false and frivolous. It has been further contended by the learned counsel for the alleged contemnor that the respondent cannot imagine to disobey the order of this Court in any manner, however, they are entitled under the law to file appropriate proceeding for seeking rectification of some error, therefore, no malafide can be attributed to the alleged contemnor, who has resorted to file legal proceedings before this Court in accordance with law.

iii) We have heard the learned counsel for the parties and perused the record. Since the order passed by this Court, whereby the instant appeal was finally disposed of by consent of parties in view of settlement reached between them, was disputed by the respondent by filing an application under Section 152 read with Section 151 CPC seeking rectification/modification through CMA No.2378/2014, which has been disposed of hereinabove by this Court today, therefore, we are not inclined to draw any adverse inference against the alleged contemnors to the effect that the listed application was filed with malafide intention or with an intention to defy or violate the consent order passed by this Court in the instant matter. Moreover, learned counsel representing the alleged contemnor has candidly stated that the alleged contemner cannot even think of violating or defying the order passed by this Court under any circumstances, whereas, the delay in this regard has been caused due to a genuine misunderstanding, which has been clarified by this Court vide above order passed by this Court on CMA No.2378/2014 today. While, confronted with such position, learned counsel for the applicant has not seriously pressed the listed application, which is accordingly disposed of, however, with the direction to the alleged contemnors be careful in future and to ensure compliance of orders and directions of the Court in letter and spirit.

J U D G E