' The brief facts out of which present revision petition arises are that the petitioner filed a suit for declaration with consequential relief to the effect that she is owner in possession of the plot bearing Khasra No,5779/3009/2 measuring 10 Marlas, 6 Square feet, situated in Revenue Estate of Mauza Nawankot, Lahore. The said plot was purchased by her through registered sale deeds dated 31-10-1988. According to her, the said deeds were given affect to in the Revenue Record.
Subsequently, the petitioner submitted proposed site-plan for the constructions of a residential house over the plot in dispute in the year 1989, wherein the objection was raised by present respondent No,5 that the plot falls in open space/children park and is situated in the sanctioned scheme known as Nadir Ali Shah and Bashir Ali Shah. Thus, the petitioner-plaintiff approached the Provincial Government/respondent No,6defendant No, 2 through letter dated 17-2-1991 to amend the scheme so that to enable the petitioner-plaintiff to construct her house in dispute, respondent No,6 directed respondent No,5 to amend the scheme but respondent No,5 did not pay any heed and failed to approve the site-plan. Subsequently, respondent No,5 rescinded earlier sanction accorded to the petitioner vide letter dated 17-2-1991 through subsequent letter dated 8-6-1993.
The petitioner being aggrieved filed a suit for declaration with consequential relief against respondents Nos.5 and 6 in the Court of Civil Judge 1st Class, Lahore, on 13-7-1993 on the ground that withdrawal letter had been issued without affording opportunity of being heard to the petitioner and since valuable right has accrued to the petitioner for constructing a house on the plot in question dated 17-2-1991, therefore, the same cannot be taken away through the impugned letter. That already 16 houses were constructed in that area and the said scheme is not in its original shape nor is in existence at the spot. The petitioner has already raised construction, therefore, the same cannot be demolished and the impugned letter is illegal, void and thus respondents Nos.5 and 6 restrained to demolish the constructions of the petitioner.
' Respondent No,5 in the said suit filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the suit cannot proceed under the law? OPD
(2) Whether the plaintiff has filed this suit without any locus, standi and cause of action? OPD
(3) Whether the plaint is liable to be rejected under Order VII and rule 11, C.P.C.? OPD
(4) Whether the,. Letter dated 8-6-1993 is illegal, void, inoperative upon the right of the plaintiff'?
OPP
(5) Whether the plaintiff is entitled to the decree prayed for? OPP
(6) Relief.
' The learned trial Court decreed the suit of the plaintiff-petitioner vide judgment and decree dated 10-6-1996. Respondent No,5 being aggrieved filed an appeal before the learned Additional District Judge, Lahore, who dismissed the same vide judgment and decree dated 17-7-1998. Respondent No,5 being aggrieved filed Civil Revision vide Diary No,1602 on 25-11.1998 before this Court, but the same was returned with certain objection, thereafter the revision petition was never resubmitted and it became time-barred. The petitioner filed a Constitutional Petition No, 4978 of 2002 on 21-3- 2002 in person with the prayer that the respondents be directed to sanction the site-plan in terms of the judgment and decree dated 10-6-1996 passed by the learned trial Court, which was disposed of by this Court vide order dated 28-3-2002 with the direction to the petitioner to file execution petition before the learned trial Court/Executing Court.
2. The petitioner filed execution petition before the aforesaid Executing Court on 27-4-2002. In the meanwhile, respondent No,5 filed an application under section 47 of C.P.C. Read with section 3 and Article 181 of the Limitation Act. The learned Executing Court dismissed the application of respondent No,5 and accepted the execution petition of the petitioner vide order dated 28-3-2003 with the direction to respondent No,5 to act in accordance with order dated 19-3-2003 passed by the Executing Court on the application of the petitioner and to submit compliance report on 9-4- 2003. Respondent No,5 being aggrieved filed an appeal before the learned Additional District Judge, Lahore, who accepted the appeal of respondent No,5 and dismissed the execution petition of the petitioner as time-barred, vide judgment dated 30-4-2003, hence the present revision.
3. The revision petition was fixed before this Court on 23-5-2003 and the following order was passed:- "The question which, inter-alia, requires consideration, is whether decree granting a prohibitory injunction applies by its own force without requiring any execution and whether Article 181 of the Limitation Act has wrongly been applied by the First Appellate Court."
4. Mian Hameed-ud-Din Kasuri, D.A.-G. And Syed Ali Zafar, Advocate, were directed to assist the Court on the next date of hearing as Amicus curiae.
5. The learned counsel of the petitioner submits that the petitioner approached respondent No,5 for sanctioning of the site-plan but the official of the respondents pointed out that respondent No,5 has filed revision petition before the High Court, therefore, her application would be decided after the decision of revision petition. He further submits that respondent No,5 had withdrawn the revision petition from this Court on 26-2-2001, therefore, time would be started from the date of withdrawal of revision petition filed by respondent No,5 from this Court, hence the First Appellate Court erred in law to dismiss the execution petition of the petitioner as time-barred. He further submits that the suit of the petitioner was accepted and respondents were restrained to demolish the constructions of the petitioner and also directed the respondents to sanction the site-plan, therefore, the right of the petitioner is established by virtue of judgment and decree of the learned trial Court dated 10-6-1996 and the date of judgment and decree dated 17-7-1998 of the learned Additional District Judge, Lahore is continuing, therefore, there is no need to file execution petition separately. He further submits that the petitioner approached respondent No,5 directly time and again and submitted her application in this regard as record of file of the petitioner had been misplaced by the respondents as is evident from the contents of the application filed by the petitioner before respondent No,5. The mandatory injunction has also been granted in favour of the petitioner, but this fact was not considered by the First Appellate Court in its true perspective. He further submits that the First Appellate Court observed in the impugned judgment in the following terms in Para. No,7:-- "It is unfortunate that the respondent lady could not file an application under section 5 of the Limitation Act alongwith her execution petition, may be, due to lack of proper legal assistance. Had she filed such application, the delay caused in filing of execution application, probably on account of misunderstanding the processing of memorandum of revision by the office of the Honourable High Court, it might had been considered as a sufficient cause to condone the delay under application under section 5 of the Limitation Act."
6. The learned counsel for respondents Nos.2 to 4 submits that the revision petition filed by respondent No,5 before this Court was not fixed before any Court. Office had raised objection on the memorandum of revision petition, which was returned to respondent No,5, who did not resubmit the same till date and this Court had not suspended the judgment of Courts below passed in favour of the petitioner, therefore, time consumed in this Court cannot be excluded in view of section 15 of Limitation Act. In support of his contention, he relied upon "Muhammad Hussain and others v. Muhammad Aslam" 1988 SCM R 151. He further submits that the decree is executable; therefore, the petitioner has to file the execution petition within 3 years in terms of Article 181 of the Limitation Act. The petitioner has not filed execution petition before the learned trial Court/Executing Court within prescribed period, therefore, the First Appellate Court was justified to accept the appeal of respondent No,2 as the petitioner had filed execution petition after 3 years.
The execution petition was fixed on 27-4-2002, which had become time-barred to the extent of 286 days. He further submits that the petitioner failed to explain delay of each day and did not file an application under section 5 of Limitation Act for condonation of delay as the petitioner had not filed first application for execution within 3 years, therefore, the petitioner is not entitled under the law to take benefit under section 48 of C.P.C. In support of his contention, he relied upon "National Bank of Pakistan v. Mian Aziz, ud-Din and others" 1996 SCM R 759.
7. Kh. Muhammad Afzal, Advocate/ legal advisor of respondent No,5 submits that the petitioner is well within her right to file an application before the respondent No,5 for sanctioning of site,-plan on the basis of two judgments passed by the lower Courts in her favour.
8. Mian Hameed-ur-Din, D.A.-G. As Amicus curiae submits that judgment is composite consisting of declaratory decree and prohibitory decree. The judgments of the Courts below must be read as a whole then it is a simplicitor declaratory decree and consequential relief has been given by the Courts below to the petitioner, therefore, Article 181 of the Limitation Act, is not applicable. He further submits that Article 182 of Limitation Act has been omitted, but this fact was considered by Peshawar High Court. According to which, the petitioner can file an execution petition within 6 years. In support of his contention, he relied upon "Raza Muhammad Khan and others v. Jalal-ud- Din Khan and others" 1988 CLC 30. He further submits that the petitioner even without filing executing petition is within her right to file an application before the respondents for sanctioning of site-plan. Coupled with the facts that the respondents are restrained by the Courts to demolish the constructed house of the petitioner, therefore, this aspect was not considered in its true perspective by the First Appellate Court and erred in law to accept the appeal of respondent No,2:
9. Syed Ali Zafar, Advocate as Amicus curiae submits that decree is an executeable as the Courts have granted prohibitory injunction in favour of the petitioner in view of section 2(2) read with Order 21, rule 10 and Order 32, rule 21, C.P.C. In support of his contention, he relied upon the following judgments:-- "Burhan-ud-Din Ahmed and others v. Veda Brata Chakaraborti and others" PLD 1964 Dhacca 661 "Muhammad Hussain and others v. Muhammad Aslam" 1998 SCMR 151 "U.C. Darya Khan Sooho, Mirpur v. Messrs Bewan Sugar Mills" 1989 M LD 385 "Muhammad Azam Khan and others v. Nobat Khan and others" 1990 MLD 1450 ' He further submits that the application of the petitioner was rejected by the respondents on 16-8- 2001, therefore, the First Appellate Court erred in law to accept the appeal of the respondents and to dismiss the execution petition of the petitioner as time-barred, without adverting to the wording of Article 181 of the Limitation Act, wherein the Legislature in its wisdom has specifically mentioned when the right to apply accrues which right has been accrued to the petitioner on the rejection of the application of the petitioner on 16-8-2001. In support of his contention, he relied upon the following judgments:-- "Sheo Lal and another v. L. Devi Dasannd another" AIR 1952 Alaabad 900 "Merla Ramanna v. Nallaparaju and others" AIR 1956 SC 87 "Gyaniram v. Gangabai" AIR 1957 MP 85 "Kartar Singh v. Sultan Singh Patrap Singh" AIR 1967 Punjab 375 "Muhammad Hussain and others v. Muhammad Aslam" 1988 SCM R 151
10. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
11. It is better and appropriate to reproduce the basic facts in chronological orders alongwith the operative part of judgment and decree of the learned trial Court dated 10-6-1996 and operative part of judgment of First Appellate Court dated 17-7-1998 to resolve the controversy between the parties:--
(1) The petitioner was allowed to raise constructions over the plot in question through letter dated 17-9-1991.
(2) The said letter had been withdrawn by the respondents vide order dated 8-6-1993.
(3) During this interregnum period, the .Petitioner had raised constructions on the plot in question.
(4) The petitioner had also deposited the fee in the month of January, 1989.
(5) The report was called from the Patwari and Patwari submitted report that scheme was not acted upon and other persons have also raised similar constructions.
(6) The petitioner filed a suit for declaration with consequential relief in the Court of Civil Judge 1st Class, Lahore on 13-7-1993.
(7) The said suit was decreed on 10-6-1996..
(8) The respondents filed an appeal before the learned Additional District Judge, who dismissed the same vide judgment and decree dated 17-7-1998.
(9) The respondents filed civil revision before this Court vide Diary No,1602 on 25-11-1998.
(10) Office returned the same to the respondents with certain objections.
(11) The respondents never resubmitted the same and it has been become time-barred.
(12) The petitioner filed herself Constitutional Petition No,4978 of 2002 without attaching all the pleadings of the Courts below alongwith Constitutional petition in person, which was disposed of vide order dated 28-3-2002 with the observations that the petitioner has alternative remedy to file an execution petition before the Executing Court.
(13) The petitioner filed execution petition before the Executing Court on 27-4-2002; whereas the respondents filed objection petition and the learned Executing Court decided both by one consolidated order dated 28-3-2003, wherein the execution petition was accepted and the objection petition was dismissed.
(14) The respondents filed an appeal before the learned Additional District Judge, Lahore who accepted the same on the ground that the petitioner did not file an execution petition within three years which is prescribed under Article 181 of the Limitation Act with the lapsed of 286 days.
(i) The operative part of judgment and decree dated 10-6-1996 of the learned trial Court.
Issue No,4 ' Whether letter dated 8-6-1993 is illegal, void and ineffective qua the plaintiff's right? 0 PP "So it is proved that the defendants have deviated from the original site-plan. The defendants in rebuttal have failed to produce any evidence. So this issue is decided in favour of the plaintiff."
' Relief "Keeping in view of my findings on the above issues, I do hereby pass a decree in favour of the plaintiff to the effect that the defendants be restrained from demolishing the constructions of the plaintiff on the plot in dispute, and to sanction the site-plan as per rules. The parties are left to bear their own costs."
(ii) The operative part of judgment and decree dated 17-7-1998 passed by the First Appellate Court.
"Once the permission having been granted and the plaintiff having raised the constructions thereon, defendant No,1/MCL was not competent to withdraw the same in such a slipshod manner especially when the valuable right had accrued to the plaintiff and she had raised construction thereon. The defendants have not led any evidence before the learned trial Court that whether the plaintiff was given any proper opportunity of being heard and in the absence thereof the impugned notice even otherwise is illegal and cannot be given effect too. All these aspects have been considered by the learned trial Court and no exception can be taken to the findings recorded by the learned trial Court in this behalf nor there is any legal infirmity in the impugned judgment."
(iii) It is also better and appropriate to reproduce the contents of the application of the petitioner filed before the respondents on 6-8-2001, which was rejected by the respondent on 16-8-2001. {{URDU TEXT}}
12. In case, the aforesaid operative part of the judgment and decree dated 10-6-1996 be read as a whole then, it brings that the learned trial Court has passed composite decree in favour of the petitioner to the following effect:--
(i) The letter dated 8-6-1993 of the respondents was declared illegal and void while deciding Issue No,4. Consequently the letter dated 17-2-1991 was stood restored automatically.
(ii) The respondents were restrained t6 demolish the constructions of the petitioner on the plot in question.
(iii) The respondents were directed to sanction the site-plan as per rule.
' It is also settled principle of law that simplicitor declaratory decree is not an executable as per law laid down in "Gladstone, Wyllie & Co. Ltd. v. Badsha Miah" PLD 1960 Dacca 305 and "Board of Intermediate & Secondary Education, Lahore and another v. Mrs. Najma Khurshid and another" 2001 M LD 89. It is also settled principle of law that the prohibitory decree can be executed when the prohibitory decree is violated. In arriving to this conclusion, I am fortified by "Shyam Sundar Prasad v. Ramdas Singh" AIR 1946 Patna 392, wherein Article 181 of the Limitation was interpreted in the following terms:- "Where a decree prohibits the defendant from obstructing a village path it is a decree granting permanent injunction and is not capable of execution on the date it is passed or in other words, until an obstruction is caused there is nothing to execute. In such circumstances, its execution may not be necessary till after 12 years of the date of its passing. As soon as any obstruction is caused and the Court's order in that behalf is breached a cause of action for enforcement of the decree arises. In such cases Article 181 of Limitation Act, applies and not Article 182 and the decree-holder's right to apply accrued only when the obstruction is caused. Such a decree is beyond the reach of the bar provided in section 48, Civil Procedure Code, (21) 8 AIR PC 31".
' It is also pertinent to mention here that the respondents did not give any threat to the petitioner to demolish her constructions over the plot in question. The respondents had rejected the site plant of the petitioner as directed by the learned trial Court in the said judgment and decree on 16-8-2001.
Order 21, rule 32 of C.P.C. Applies to the injunction both mandatory and prohibitory. In arriving to this conclusion, I am fortified by the following judgments:-- ' Pauls's case AIR 1969 Kerala 232 Subbayya's case AIR 1969 A.P. 92 Murari's case AIR 1961 A.P. 482 ' Abdul Rajack's case AIR 1961 A.P. 482 ' It is also settled principle of law that there is no ground for non-applying of Order 21, rule 32 of C.P.C. To a case of writ mandamus issued by this Court, if such a C suit is in the nature of merely a mandatory injunction issued by the Court. In arriving to this conclusion, I am fortified by "State of Tamil Nadu v. Messrs National Trading Corporation" 1961 L.W.
263. It is also settled principle of law that the application to enforce a decree granting perpetual/ prohibitory injunction is not subject to limitation. In arriving to this conclusion, I am fortified by the law laid down in "Aram Siongh v. Salig Ram" AIR 1975 Ala-abad 11. It is also settled principle of law that if simple prohibitory injunction is disobeyed the fresh cause of action arises for which remedy either by mandatory injunction or in some other way has to state for in a suit as per law laid down by "Him's case" AIR 1957 A.P.
44.
13. In view of what has been discussed above, the judgment of First Appellate Court is not sustainable in the eye of law.
'It is pertinent to mention here that the petitioner had submitted an application after the judgments of the learned trial Court and the First Appellate Court before the respondents for sanctioning of the site-plan, which was rejected by the respondents without any cogent reasons. It is the duty and obligations of the respondents to decide the application of the petitioner in accordance with law in view of section 24-A of the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "Messrs Airport Support Service's case" 1998 SCM R 2268. As mentioned above, it is a composite decree, the respondents have no lawful authority in view of two decrees in favour of the petitioner, to demolish the constructions over the plot of the petitioner, therefore, keeping in view the contents of the application of the petitioner, which was submitted by her for sanctioning of the site-plan and that the file of the petitioner was misplaced, the respondents are directed to sanction the site-plan of the petitioner in terms of judgment and decree of the learned trial Court within two months afresh. In case, the respondents reject the site-plan of the petitioner then the petitioner is well within her right to avail the proper remedy before the competent authority/Court.
13. At the end, I must put on record my deep sense of appreciation for valuable assistance of the Court by the learned counsel of rival party and the learned Amicus curiae Ch. Hameed-ud-Din, D.A.-G. And Syed Ali Zafar, Advocate, who have taken a lot of pain to assist this Court.
' This civil revision is disposed of in view of the aforesaid observations.