' MIAN SAQIB NISAR, J.---The petitioner filed a suit for declaration, in which the plaint was ordered to be returned by the learned Civil Judge, however, it is alleged by the petitioner that the learned Judge, in order to cause prejudice to the petitioner, retained the file in the office for two months, whereafter, when the file was released, the petitioner challenged that order in appeal which too was dismissed. However in revision before this Court, the orders of the Courts were set aside and the matter was remanded for fresh trial and finally, the suit in favour of the petitioner was decreed.
During this period, the petitioner brought another suit for damage against the presiding officer of the trial Court on the ground that after having passed the order for the return of the plaint in the earlier suit the file was kept by the learned Civil Judge for two months of the order, with a view to cause prejudice to the petitioner and this was done with mala fide intention. The plaint in the suit was rejected to the extent of respondent No,1, the presiding officer by applying the Judicial Officers Protection Act, 1850. Appeal filed by the petitioner has also failed.
2. Learned counsel for the petitioner by relying upon PLD 1960 Lahore 1039 and PLD 1962 Lahore 411, has argued that there is no protection of the above Act if the action of the Presiding Officer is A malafide; the petitioner in his plaint in clear and unequivocal terms has alleged the mala fide and therefore, until and unless this aspect which is a question of fact was allowed to prove through evidence the plaint could not be rejected.
' I have heard learned counsel for the parties and find that the argument of learned counsel for the petitioner has force; the judgments referred to above, squarely apply to the case in hand because there are allegation of mala fide against the officer and no protection is available under the law for such an action resultantly, by allowing this petition, the impugned orders are set aside the matter is remanded to the trial Court, for deciding the case after giving opportunity to the respondents to file the written statement and framing of issue and conducting the trial. Parties are directed to appear before the learned trial Court on 12-1-2004.