FAZAL-I-MIRAN CHAUHAN, J. -- Through this Constitutional petition the petitioners have impleaded that respondents Nos.4, 5 and 6 may be directed to take steps to restore the land owned by the petitioners to their possession.
2. The concise facts of the case are that petitioners purchased the land measuring 2 Kanals and 15 Marlas from one Bahadur Khan, .Out of joint Khewat No. 19/17 Khatoni Nos. 423 to 451 situated Mauza Shahpur vide registered deed No. 60011, dated 2.11.2006 for consideration of Rs. 2,50,000/-. They were given the possession of said land and they constructed pacca houses over three and were residing therein. Muhammad Ramzan respondent No. 3 Patwari got a house from them temporarily for using as patwar khana and said Muhammad Ramzan, Patwari dishonestly and mala fidley made a plan to dispossess them from the said land for which he was supported by the then D.D.O.
(R), Kamalia and Tehsildar Kamalia. He firstly got a criminal case registered against them vide F.I.R.
No. 12, dated 14.1.2007 at Police Station Article under Sections 380, 447, 148, 149, P.P.C. And during investigation they found innocent and said case was dismissed on 11.3.2007 by Court of competent jurisdiction. Thereafter said Muhammad Ramzan, Patwari respondent preferred an application before the then D.D.O.(R), Kamalia for dispossessing them from the said land. The D.D.O.(R), Kamalia vide his order dated 3.2.2007 ordered the Tehsildar Kamalia to dispossess the petitioners with the assistance of local police and to give the possession of the impugned piece of land to Muhammad Ramzan etc. The petitioners were accordingly dispossessed by respondent No. 6 and possession was handed over to respondents Nos. 1, 2 and 3. The petitioners preferred an appeal before E.D.O.(R), Toba Tek Singh. The same was allowed and impugned orders dated 22.1:2007 and 3.2.2007 were set aside. However, he observed that the aggrieved party will have to knock the door of the Civil and Criminal Court for getting the ,possession, hence this writ petition.
3. It is contended by the learned counsel for the petitioners that the learned E.D.O.(R) vide impugned order dated 9.7.2008 held that orders dated 22.1.2007 and 3.2.2007 passed by D.D.O.(R), Kamalia are without lawful authority and of no legal effect, resultantly he should have passed the order for restoration of the possession of the petitioners because as a result of illegal order they were dispossessed.
4. Conversely, learned counsel for the respondents raised preliminary objection to the effect that the writ petition is not maintainable, as necessary parties Nazar Muhammad, Nizam son of Ahmad, Saeed Akhtar son of. Najam, Rouf Amjad son of Zulfiqar Ali to whom the land was transferred by way of gift by Muhammad Ramzan (respondents) had not been pleaded as necessary party.
Further submits that writ petition is premature as the adequate remedy of revision before the Board of Revenue has not been availed. Further submits that the petitioners earlier filed a suit seeking injunction against the D.D.0.(R), Kamalia, which is still pending in the Court of Civil Judge, Kamalia hence he cannot pass any adverse order against the petitioners and the petitioners shall not be illegally dispossessed, in which interim stay order was granted till the next date. Since the status-quo order was not extended by the Court D.D.O.(R) proceeded to pass the :order of ejectment against the petitioners. After dispossession second suit was filed challenging the order of the D.D.O.(R) which was subsequently dismissed for non-prosecution. Since the petitioners have invoked the jurisdiction of Civil Court and Civil Suit is still pending. The petitioners are not entitled to any extra- ordinary relief under, Constitution for concealment of material facts. On merits it is argued that learned E.D.O.(R) rightly resisted to pass an order for restoration the possession as he was not competent to pass any order and it was rightly held so by the E.D.O.(R).
5. I have herd the learned counsel for the parties, perused the record and the law referred by the learned counsel for the parties.
6. The writ petition has been filed with the prayer that respondents Nos.4 and 5 be directed to pass order for restoration of possession and S.H.O. Respondent No. 6 be directed to facilitate the petitioners in getting back the possession. The exact proposition of law which emerges from the facts of the case is that the petitioners were dispossessed on the order of D.D.O.(R) dated 3.3.2007 by respondent No. 6 and possession of the same was handed over to respondents Nos. 1 to 3. This- order of D.D.O.(R) was set aside by E.D.0.(R), Toba Tek Singh vide his order dated 9/.2008 declaring that the orders dated 22.1.2007 and 3.1.2007 of the D.D.O.(R), Kamalia are without' lawful authority and of no legal effect. Since the petitioners were dispossessed by the order of D.D.O.(R), hence it was not a case of restoration of possession. Section 144, C.P.C. Would come into playwhich reads as under:--- "Section 144.-- Application restitution. (1) Where and insofar as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will. So far as may be, place the parties in the position which they would have occupied but for such decree or such part; thereof as has been varied or reversed and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1)."
7. The petitioners were required to make an application under Section 144 to D.O.R.(R), Kamalia, who should on the receiving ' of this application by way of restitution placed the petitioners in the same position which was prior to the order passed by him. Section. 144, C.P.C. Empowers the Court to restore possession of the person from whom it was taken under an order.
8. It is fundamental principle of law that an act of Court shall not injure any person. Reference in this respect can be made to Sajawal Khan v. Wall Muhammad and others (2002 SCMR 134) and Ladha Khan and others v. Mst. Bhiranwan (2001 SCMR 533). This principle is also applicable to quasi-judicial proceedings and order of Tribunal. Reliance is placed on case of Attaul Haque and others v. Additional District Judge and another (1992 MLD 1409).
9. The concept of restitution is an old as the law itself. It becomes operative the very moment when the order under which a party to the litigation was deprived of his possession is varied, modified or set aside as it is ordained that the Court must remedy the injury or the wrong done to a party the cause of order of the Court. This section provides for procedure therefore, while the power to order restitution is inherent in Court and should be exercised whenever justice demands. It is not a case of restoration of possession but of restitution of: possession because order of dispossession of D.D.O.(R) has been set aside by E.D.O.(R) declaring the same to illegal and without jurisdiction.
10. The other objection that; after dispossession the property in question was gifted to Nazar Muhammad, Nizam son of Ahnnad, Saeed Akhtar son of Najam, Rouf Amjad son of Zulfiqar Ali who are not party to the writ petition. The arguments has no force because restitution can be ordered against the person who has benefited under such order or decree as well as his transferee or assignee, even though such person may not have been party to the proceeding in which such order or decree was varied or set aside. Reliance is placed on case of K. Anantharam Singh and another v. Marwadi Thara Chand and others (AIR 1936 Madras 634), Zia Ullah v. Muhammad Hussain Afzal and .3 others (2003 CLC 1321), S.A. Latif v. J.B. Dubash and 5 others (PLD 1970 Karachi 220). Upon variation of reversal of order or decree the right of restitution arises automatically and claimable before the Court of first instance. The Court of first instance on receiving order of reversal or setting aside shall take cognizance of the matter and should proceed strictly in accordance with law. It is not necessary for the Appellate Court to direct for restitution specifically.
11. The remedy under Section 144, C.P.C.-is available to the petitioners. The petitioners, if so advised may move application under Section 144, C.P.C. Before the D.D.0.(R), Kamalia, who shall on the receiving of application shall proceed strictly in accordance with law. Reliance is placed on Barkat Ali v. Additional District Judge, Faisalabad and 5 others (2001 MLD 1044), Umatullah Begum v.
Munawar Akhtar (PLD 1996 Lahore 582) and Aquil Usman Dhaduk and another v. Jamil Akhtar Kiyani and 5 others (2004 YLR 122).