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Petitioner: Dr. ASAF HUSSAIN JAFRI VS Respondent: K. B. BHUTTO, ADVOCATEContemner
Court Name: Sindh High Court Judge(s): Syed Sajjad Ali Shah Title: Dr. ASAF HUSSAIN JAFRI vs K. B. BHUTTO, ADVOCATEContemner Case No.: Criminal Original Miscellaneous No,108 of 1988, Date of Judgment:1989-08-31 Reported As: PLD 1990 Karachi 173 Result: proceedings according
JUDGMENT
JUDGMENT ' Dr. Asif Hussain Jafri (hereinafter to be referred as Complainant) addressed three applications to the learned Chief Justice of Sindh High Court making complaint against his own Advocate Mr. K.B. Bhutto (hereinafter to be referred as alleged contemner) alleging categorically that his counsel Mr. Bhutto gave consent in F.RA. No, 992/83 improperly and without authorisation from Complainant and in the result Rent Appeal was allowed by a short consent order and the case was remanded to the Rent Controller for fresh proceedings, which was against the interest of Complainant for the reason that Complainant as landlord had succeeded in getting eviction on the ground of default and appeal was filed by the tenant, which was allowed in the manner stated above. Complaint as such was sent by learned Chief Justice to my learned brother Mamoon Kazi, J., who had disposed of the appeal mentioned above and his Lordship after hearing Complainant issued notice to Mr. Bhutto to show-cause why suitable action under the law should not be taken against him. My learned brother further observed in subsequent order that he himself would not like to try the case as such it should be placed before the learned Chief Justice for passing orders that may be deemed fit. This matter was then marked to me by learned Chief Justice to be dealt with according to law. I issued notices to the parties and A.-A.G. Sindh and then framed charge under sections 3 and 4 of the Contempt of Court Act, 1976 to which alleged contemner pleaded not guilty. I directed the office to register the case and fix it for further to law. ' Factual background of this case briefly stated is that Complainant is landlord of premises which he rented out to his tenant Khawaja Tariq Siddique as per agreement dated 1-9-1972. Complainant filed Rent Case No, 4775/1979 against tenant for eviction on the grounds of default and personal need in the Court of Xth Senior Civil Judge and Rent Controller, Karachi. Ultimately eviction was
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granted vide order dated 3-11-1983 on the ground of default only and issue of personal need was found against Complainant/landlord for the reason that he failed to examine himself as a witness. Against eviction tenant filed appeal in the High Court as F.RA. No, 992/1983 in which Mr. K.B. Bhutto was engaged to appear on behalf of Complainant/landlord and on the other side Mr. Khalid Ishaq appeared on behalf of the tenant. In the High Court on 22-11-1987 my learned brother Mamoon Kazi, J., after hearing both the Advocates mentioned above disposed of appeal by a short consent order in consequence of which impugned order of eviction was set aside with finding on issue No,1 relating to default reversed and case was remanded for fresh decision on issue No,2 relating to personal need. Appeal was allowed and it was directed that both parties were at liberty to lead fresh evidence before the Rent Controller. ' It appears that complainant was not present when appeal was disposed of and later he was informed by his counsel about the result of appeal. Complainant quietly without making any protest went about contesting case on remand before Rent Controller on issue of personal need and when Rent Controller gave negative finding on this issue, he wrote to Mr. Bhutto on 6-3-1988 after a lapse of 3-1/2 months raising objection to the consent order of remand passed on 22-11- 1987 in F.R.A. No, 992/1983 on the ground that his Advocate had no authority from him to give consent and further he was engaged to contest appeal on one issue only for which his services were hired. It was also claimed in that letter that appeal was not properly argued by Mr. Bhutto on 22-11-1987 and in the telephonic talk between complainant and Mr. Bhutto which took place three days after the result, such verbal objection was taken by complainant against consent, which was being reduced in writing. It may be mentioned here that Mr. Bhutto did not appear for complainant before Rent Conroller either in original proceedings or after remand. He was engaged only for appearance in the High Court. Vide letter dated 26-3-1988 Mr. Bhutto explained fatual position to the complainant as to how hearing took place and appeal was disposed of by consent order resulting in remand of the case. On 30-3-1988 complainant filed complaint against Mr. Bhutto with Sindh Bar Council for professional misconduct and he addressed his first application dated nil to the learned Chief Justice which was received by member, Inspection Team of Sindh High Court on 23-4-1988. Subsequently, complainant sent two other applications dated 14-5-1988 and 15-6-1988 to the learned Chief Justice. ' In the contempt proceedings before me, complainant examined himself and closed his side. Similarly alleged contemner examined himself and closed his side. No other witness was examined by either side. Subsequently, at the time when I was examining the case in detail for judgment, it occurred to me that it was essential in order to give just decision to examine Mr. Khalid Ishaq, Advocate for tenant, who was present and was heard by the learned Judge and he was not examined by any one of the two parties. I then fixed the case for further hearing and after issuance of notice examined Mr. Khalid Ishaq as Court-witness. Later in this judgment at proper stage and in the relevant paragraphs it would appear as to why it became necessary to examine Mr. Khalid Ishaq. For the time being anxiety is to find out from the evidence recorded and material brought on the record, whether allegations made by Complainant are proved or not and whether contempt is committed or not ? ' When complainant examined himself as a witness before me in contempt proceedings, he chose to file statement in writing which was signed by him and requested that the same may be treated as his evidence. He had filed necessary annexures alongwith the statement. His request was allowed and he was cross-examined on behalf of alleged contemner. From the statement in writing of complainant, it appears that he was not present on 22-11-1987 when appeal was decided and subsequently, he protested to his counsel as to why consent was given by him, when order of remand was not in his favour. Complainant has given these facts very briefly and has stated the relevant dates. According to him consent order was passed on 22-11-1987 and after protesting
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verbally he wrote letter to his counsel on 6-3-1988 in which he objected to the consent. Now the question arises that in between the two dates mentioned above, period of nearly three and half months expired and what was complainant doing before reducing objection to the consent in writing. The answer is that he was acting upon consent order and was contesting proceedings after remand on the issue of personal need before Rent Controller. When Rent Controller found this issue against complainant he raised objection in writing against consent order which was passed three and half months ago. When complainant came to know that consent order was not in his favour and he had registered verbal protest against it with his counsel two three days after result was announed, as is claimed by Complainant, then nothing prevented him from openly disowning that consent order and he could have challenged its validity as is allowed under the law. Not doing so and belated raising of objection in witing by complainant clearly shows that in the beginning after consent order was passed complainant had no intention of raising objection to the consent and was content with order of the High Court, in compliance of which he contested the case after remand and when he lost it again he raised objection very late. In this context, factual position as stated above is admitted by complainant in his cross-examination before me and he stated that for the intervening period he waited and did not raise objection to the consent order because he was advised by Advocates, whom he consulted, to wait till finding is given in the case after remand. In other words, had the finding been in favour of complainant after remand he would not have raised objection in writing against consent order passed by the High Court. ' Complainant admitted in his cross-examination before me that after remand Rent Controller gave finding against him on the issue of personal need and against that decision he filed F.R.A.. No, 293/88. He was asked a question that if that appeal was allowed in his favour, would he still persist and press his objection againt consent order in F.R.A. 992/83, he was evasive and replied that he was not prepared to answer such speculative question. On this point as stated above, it appears from the record that complainant was complacent with and accepted consent order and contested proceedings wholeheartedly but when finding was against him for the second time on the issue of personal need, he pressed in service belatedly his objection against consent order; which shows lack of bona fides. In this connection, explanation furnished by complainant as stated above assigning reasons for confirming in writing verbal protest against consent order after 3-1/2 months is unsatisfactory and unconvincing. ' Coming back to letter dated 6th March, 1988 written by complainant to the alleged contemner, objection is raised therein that Mr. Bhutto was engaged in appeal for issue of default only and had no authority to say anything on the issue of personal need, which was outside the scope of appeal. Relevant first paragraph in the letter mentioned above is not happily worded but if it is read conjointly with second paragraph, in the same letter, then such intention would appear clearly. At the time of giving evidence, complainant was confronted with Vakalatnama Ex.1-B in F.R.A. No, 992/83, which indisputably showed that authority was given to the Advocate to compromise and withdraw the matter. With regard to the stand taken by complainant that he engaged Mr. Bhutto for one issue only which related to default, he was confronted with application under section 151, C.P.C. In F.R.A. No, 992/83 in which prayer was made on behalf of complainant to produce documents in support of issue of personal need. This application is supported by personal affidavit of complainant, certified/copy of which is on the record. In this affidavit in paras.2 and 3 this fact is admitted that eviction was also applied for on the ground of personal need but complainant had to delay his arrival in Karachi till he could get possession of disputed premises and in the meantime, his health had deteriorated and he came back to Karachi on 15-2-1985. Documents sought to be produced are transfer of residence form, relevant pages of Passport showing arrival of complainant in Karachi on 15-2-1985 and visa of U.S.A. And letters dated 11-6-1986 of Texas heart institute. Complainant in his evidence before me took up stand that such application was filed and
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such documents were sought to be produced not in support of personal need but in support of issue of default. Certified copy of this order dated 1-10-1986 on C.M.A. No, 1574/86 is produced, which clearly shows that these documents were sought to be produced in support of issue of personal need and the Court ordered that this application would be heard at the time of regular hearing of appeal. Confronted with such situation, complainant was still adamant and persistently insisted that these documents were to be filed in connection with issue of default and did not relate to the issue of personal need. Ultimately complainant admitted that order passed on application showed that his counsel was making efforts for hearing of appeal on the issue of personal need also but he was unaware because his counsel kept him in dark about such order having been passed by the Court. In this context claim made by complainant as stated above was vain and feeble attempt to speak against the record, which cannot be believed and is also unwarranted. Complainant has failed to prove his averment that he engaged his counsel only for arguing appeal to the extent of issue of default and he had not authorised his counsel to agitate issue of personal need. ' Coming back to the brass-tacks, it is claimed by the Complainant that he became aware of the contempt, when he received letter dated 26th March, 1988 from Mr. Bhutto, which gave impression that alleged contemner gave consent to the order of remand under compulsion from the Court. While giving evidence before me in contempt proceedings, complainant filed statement in writing in which he has stated that letter dated 26-3-1988 of alleged contemner is contemptuous because Mr. Justice Mamoon Kazi has remarked so while taking cognizance and issuing show-cause notice to the alleged contemner. Reliance was also placed on the affidavit of alleged contemner, in which factual position is reiterated. Further complainant has quoted paragraphs from the comments and orders passed by my learned brother Mamoon Kazi, J. During contempt proceedings before and after issuance of show-cause notice. This is so stated obviously for the reason that complainant himself was physically not present when consent order of remand was passed so he does not know what transpired at the hearing. During cross-examination, plight of complainant became more pronounced on account of his vulnerability and he asserted positively that consent order was without his consent but he did not say that consent order was passed ender compulsion. Complainant further stated that he did not want to examine Mr..Bhutto as his witness to prove that order passed by the Court on 22-11-1987 was not a consent order but he wanted to examine Mr.Bhutto in the light of his letter addressed to him, which gave impression that order dated 22-11- 1987 was passed under compulsion from the Court. Complainant further stated that he got :hat impression after reading letter and so did everybody else whom he gave that etter for reading. In respect of second part of assertion about others, complainant has not mentioned their names and has not examined any other witness to prove that allegation, so I shall have to confine myself to the first part )f assertion that complainant himself got such impression without being able or ready to prove the factum that order was passed under compulsion. ' Since spring board of contempt case appears to be on the face of it letter dated 26-3-1988 of alleged contemner, it would be worthwhile and pertinent to reproduce hereunder relevant paragraph of it stating in detail factual position and background in which order of remand was passed, which is as follows:- "Lastly the said appeal was fixed on 22-11-1987 which date was also in your knowledge and that of your attorney. On the same date honourable Judge of the High Court heard the learned counsel of the appellant with respect to the ground of default which was impugned in the appeal and thereafter heard me also on the same ground of default partly with observation that he agreed with me on the point of default and I would be heard on the ground of personal requirement if necessary. After further hearing learned counsel of appellant in reply to my submission on the ground of default, the learned Judge, who had so expressed himself to opine in your favour on the
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question of default and as such did not permit me to elucidate and submit authorities, was heard to announce that appeal is allowed for reasons to be recorded later. Thereupon, I submitted to the Honourable Judge that I was not heard and also that I had yet to be heard on the ground of personal requirement. At this stage the Honourable Judge pondered for a while and asked the learned Advocate for appellant and me to consent to remand of appeal for hearing on the ground of personal requirement. As the Hon'ble Judge and already announced that he allowed appeal against you and I was made to decide about the offer for the sane remand then and there, I accepted such offer of the Hon'ble Judge for the remand of the case for re-decision on the ground of your personal requirement in your interest." ' Perusal of the paragaph reproduced above and for that matter even perusal of whole letter of Mr.Bhutto does not show at any place direct or indirect mention of the fact that he gave consent to the order of remand on account of compulsion or pressure from the Court. He has only tried to explain as to in what 'actual background he had given his consent to the order of remand. He has iarrated facts as to how hearing took place and how he was briefly heard on the point of default after learned counsel for appellant and the learned Judge appeared to be in agreement with alleged contemner and then he re-heard counsel for appellant and changed his mind and announced that appeal was allowed. Alleged contemner has further explained that he informed the learned Judge that he was not heard on the point of personal need and then the learned Judge pondered for a while and suggested remand of case with consent on the issue of personal need. It is further explained by alleged contemner that he gave consent in such circumstances as it was in the interest of his client. ' Application of complainant was sent by learned Chief Justice to my learned brother Mamoon Kazi, J. Who was pleased to issue notice to Mr.Bhutto vide order dated 13-7-1988 to show cause why he should not be punished for contempt of Court. This order was passed after hearing was granted to the complainant. Letter dated 26-3-1988 of alleged contemner was also before my learned brother, who was pleased to observe that Mr.Bhutto had no authority from his client to give consent for a compromise order and his letter dated 26-3-1988 gave impression that he was forced by the Court to give consent. After show-cause notice Mr.Bhutto appeared and filed his affidavit dated 25-8-1988 in reply to show cause notice. In this affidavit on oath after taking some legal objections regarding jurisdiction he had once again reiterated the same factual position as was done in his earlier letter dated 26-3-1988 addressed to the complainant. In the affidavit he took up the stand that his letter dated 26-3-1988 was part of correspondence between Advocate and his client and it was fair reporting of proceedings and there was nothing derogatory in it. In paragraphs 8 and 9 it is said that at the time of hearing of appeal, his Lordship was inclined to dismiss appeal on the ground of default in favour of landlord in view of case-law as two rulings were cited namely 1975 S.C.M.R. 464 and 1987 C.L.C. 692, latter being decision of the same learned Judge Mamoon Kazi, J. It is further stated in the affidavit that afterwards his Lordship was heard to say that appeal was allowed and then alleged contemner informed the Court that he was yet to be heard on the point of personal need and the learned Judge suggested remand on the question of personal need with consent of the counsel, which was accepted. It was also pointed out in the affidavit that complainant acted upon consent order, contested case on the issue of personal need but when finding was against him, he made applications against his counsel. ' In support of assertion of alleged contemner that learned Judge initially had agreed with him on the point of default but then changed his mind, two rulings were cited as is stated in paragraph 8 of the affidavit. Of course, against this affidavit, complainant filed counter-affidavit and then there was also affidavitin-rejoinder by alleged contemner but I do not propose to refer to the counter- affidavit of complainant because he was not present at the hearing so he is not expected to know as to what transpired and on this point his affidavit is not useful at all. After taking into
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consideration affidavit and rejoinder affidavit of alleged contemner the learned Judge passed a detailed order on 13-10-1988 holding therein positively that he was of the view that there was clear prima facie case against Mr. Bhutto for which he must be tried. Paragraph 10 of this order is very pertinent to the point under consideration, hence it is reproduced verbatim as under:-- "On merits also, I am least impressed by Mr. Bhutto's defence. Mr. Bhutto has given clear impression in his letter that it was the manner in which appeal against Dr. Jafri had proceeded before the Court which left Mr. Bhutto with no other option but to agree for a consent order. He has even gone to the extent of alleging that he had been forced by the Court to agree for such order otherwise the Court had already decided to allow the appeal against Dr. Jafri. Although it is difficult. For me now to recall how exactly the case proceeded but it may be pointed out that Courts always act as netural arbiters and question of compelling any party to agree to a particular order or judgment can hardly arise. The question of Mr. Bhutto being compelled by the circumstances as described by him in his letter also does not arise as judgments of this Court are not final and it is always open to an aggrieved party to file a petition before the Supreme Court against an order or judgment of this Court. The account given by Mr. Bhutto in his letter in respect of the conduct of the proceedings in the case is not only highly exaggerated but ex facie false. It is not very uncommon that a Judge after hearing arguments gives away his mind particularly when the case is to be decided by him then and there at the conclusion of arguments but a final decision is that which is written and signed or has been dictated in the open Court and reduced to writing. Since the only order passed after conclusion of the arguments in this case was the consent order, by which, the appeal was disposed of,' the question of any other order being announced, can hardly arise. It appears that Mr. Bhutto was already aware of the weakness of his case, therefore, he agreed for a consent order." ' In the contempt proceedings before me alleged contemner examined himself as his witness and closed his side. He stated that his affidavit dated 25-8-1988 in reply to show-cause notice and affidavit-in-rejoinder dated 3-10-988 be considered as part of evidence. He further reiterated the contents of the affidavits and claimed that he had not stated in his letter dated 26-3-1988 addressed to his client that he gave consent due to compulsion from the Court but merely stated correct factual position as to how consent order came to be passed. Now it is indisputable that how and in what circumstances consent order was passed by the Court is a question of fact. In this connection, on one hand I have one version given by alleged contemner. On the other hand, there is version of complainant, who was not present at the hearing but claims that he received letter dated 26-3-1988 from alleged contemner, which gave impression that he was forced by the Court to agree to consent order. Apart from this letter and evidence of complainant, there are two orders passed by the learned Judge dated 13-7-1988 and 13-10-1988 in connection with contempt proceedings, which apparently purport to support the view of complainant but when examined minutely would show that version of alleged contemner also finds support to some extent. ' Now alleged contemner claims to have very definite version of factual state in which consent order of remand was passed. He is consistent about that version from the stage of his letter dated 26-3-1988 addressed to the complainant up to the stage of his evidence recorded by me in contempt proceedings. He has maintained and stuck to this version very consistently. According to him learned Judge agreed with him on the ground of default and then after hearing counsel for the other side changed his mind and announced finding against complainant, hence he informed the learned Judge that he was still to be heard on theground of personal need and then the learned Judge suggested remand of the case to which he gave his consent. He does not say that he was compelled by the Court but he maintains that he has stated bare facts in the background of which ultimately consent order of remand was passed to which he agreed. He stated this factual position twice in affidavits and on third occasion in his evidence before me apart from his initial letter to his client. In his affidavit dated 25-8-1988 he reiterated this fact that the learned Judge agreed with
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him on the question of default as he had cited two decisions mentioned above, out of which one was of Supreme Court and the other was of the same learned Judge. Learned Judge in his detailed…
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