ABDUL AZIZ KUNDI,J--- Through the instant appeal. Government of N.-W.F.P. Through Secretary, Board A of Revenue, N.-W.F.P. , Peshawar and two others appellants seeks the following relief.
"On acceptance of the instant appeal, the impugned judgment and order dated 12-7-2006 passed by Senior Civil Judge, Swabi, ex parte proceedings dated 2-1-2002 and ex parte decree dated 25- 10-2002 may kindly be set aside and the case may be directed to be heard on merits."
2. Facts precisely stated are that Land Acquisition Collector/A.C. Lahor, District Swabi proceeded to acquire land measuring 181 Kanals 9 Marlas of Mauza Lahor, District Swabi for construction of Tehsil Headquarter, Lahor and Award under section 11, Land Acquisition Act, 1894 was passed on 11-3-1990 wherein Rs,16,880 per Kanal was fixed as price of the said land to be paid to the real owners as per the record of rights of the land. The price so determined included Rs,2020 extra as compulsory charges per Kanal.
3. Sahibzar and nine others feeling aggrieved exercised their rights by filing objections under section 18, Act ibid which objection petition was entrusted to Senior Civil Judge, Swabi and ultimately vide judgment dated 19-1-1998 the Court seized of the objection petition accepted the same and enhanced the compensation to they claimed that they are also affectees of the said Award. This application upon contest was, however, dismissed by trial Court on 26-2-1996. This order was also not challenged and attained finality.
5. Notwithstanding dismissal of their aforestated application when Sahib Zar etc. Started execution of their decree for enhanced amount of compensation, Bacha son of Shah Afzal and Iqbal etc. Legal heirs of Shah Said through their application dated 10-5-1999 prayed for payment of enhanced compensation amount to them as well, which was resisted by the official respondents/judgment debtors and Senior Civil Judge, Swabi proceeded to frame following issues on 1-2-2000.
"Issues:---
(1) Whether the petitioners have got cause of action?
(2) Whether petitioners are estopped to file application in hand?
(3) Whether application in hand is not entertainable because of decision made over such application filed by petitioners?
(4) Whether case of petitioners is at par with cases in which compensation and interest was enhanced?
'Rs,39,563/05 per Kanal. It is stated at the Bar that this judgment and decree was not challenged by either side and thus attained finality.
4. During pendency of the said petition before Senior Civil Judge, Swabi two brothers namely Bacha and Shah Said sons of Shah Afzal through their application dated 19-3-1995 requested for being impleaded as a party to the said petition, as
(5) Whether petitioners are entitled to relief as prayed for?
5. The record reveals that official respondents remained associated with the proceedings till 2-1- 2002 on which date none appeared on their behalf and were accordingly placed ex parte, whereafter evidence of the applicants was recorded and then the Court seized of the application proceeded to accept the same and that too in a most callous manner without attending to the issues famed and the evidence recorded. For sake of ready reference the said order is reproduced as under:- "0-34 Dated 25-10-2002.
6. On 19-7-2004 the District Officer (R&E)/District Collector, Swabi moved an C application titled "Application for cancellation of Ex parte decree passed on 25-10-2002 by Muhammad Younis Khan, Senior Civil Judge/Reference Judge, Swabi in case titled 7/4 Nim, Institution on 17-9-1991 decided on 25-10-2002.
' Counsel for the petitioners present. Ex parte arguments heard and record perused. The present suit was instituted on 24-4-1990. Respondents attended the Court on 2-6-1999 but submitted written statement on 1-2-2000, later on he was absented theirselves as a result whereof ex parte proceedings were started against them on 23-9-2002. The petitioners produced ex parte evidence in support of their claim. One Syed Wiqar Ali Shah, Patwari Halqa appeared in the witness box and got recorded his statement as P.W.1 petitioner produced P.W.2/ Manjawar Khan ADK Swabi, P.W.3/Gul Manzar Patwari Halqa and their statements was also recorded. Statement of attomey for the petitioners also examined as P.W.4. Ex parte evidence recorded in the case fully supports the contents of plaint. Therefore, the petition in hand is ex parte decreed in favour of the petitioners and against the respondents. No order as to costs. File be consigned to record room after necessary completion.
' Announced Dated: 25-10-2002 ' (Sd.)
Senior Civil Judge/Reference ' Judge, Swabi"
7. This application was contested by Bacha etc., which led the Court to frame the following issues on 5-10-2004.
"Issues:-
(1) Whether the petitioner has got a cause of action and locus standi?
(2) Whether the petition is within time?
(3) Whether the petitioner is estopped to sue?
(4) Relief."
8. On conclusion of the trial, Senior Civil Judge, Swabi jointly took up issues Nos.2 and 3 for discussion and decided both the issues against the petitioners of the said petition,. Issue No,l was answered on the basis of decision on issues Nos.2 and 3 and accordingly petitioner was held to have no cause of action.
9. Consequently the application was dismissed on 12-7-2006.
10. With this .Background and being aggrieved the present appeal has been filed with the prayer as reproduced in the opening part of this judgment.
12. I have heard Mr.Zahid Yousaf Qureshi, Additional Advocate General for the appellants and Mr.Manzoor Hussain Khalil, Advocate for respondents and with their able assistance gone through the record of the case.
13. In this appeal the following two points emerges for consideration and decision by this Court.
(1) Whether Senior Civil Judge, Swabi could legally proceed with the application dated 10-5-1999 moved by respondents and pass an order like the one dated 25-10-2002, particularly when earlier their application for impleadment in the objection/Reference petition of Sahib Zar etc. Had been dismissed by the predecessor Judge on 2-1996?
(2) Whether the application dated 19-7-2004 for cancellation of ex parte decree passed on 25-10- 2002 could have been dismissed by Senior Civil Judge, Swabi particularly if answer to question No,l is found in negative?
11- As stated above Bacha and Shah Said, predecessors of respondents Nos.l (i) to (iv) and 2(i) to
(iii) had initially shown no grievance against the award dated 11-3-1990 by filing a reference petition and later on through their application dated 19-3-1995 un-successfully attempted to be impleaded as a party to the reference of Sahib Zar etc., the co-owners of the acquired land. The order dated 26-2-1996 turning down their request was also not challenged by them before the appellate- revisional Court and thus attained finality.
14. During pendency of execution petition by Sahib Zar etc. For recovery of enhanced compensation amount pursuant to judgment and decree dated 19-1-1998, Bacha and Iqbal etc. Legal heirs of Shah Said once again through their application dated 10-5-1999 attempted to gain that to which they had already been held disentitled.
15. It appears that the Court seized of the execution proceedings without looking into the record and applying its mind, instead of burying the said application at its very inception proceeded with its trial and accordingly framed issues. Official respondents before the said Court remained associated with the said proceedings for some time but later on absented themselves for un- known reasons and were thus proceeded against ex parte, whereafter exparte evidence was recorded and then was passed the judgment dated 25-10-2002 which has been verbatim reproduced in the earlier part of this judgment. Instead of there being five very contested and legal issues involved, the Judge of the trial Court appears to have not even looked into those issues and/or record of the case and passed his impugned un-speaking judgment. Such a judgment in presence of evidence would hardly meet the requirements of a E judgment. Before passing the ex parte judgment dated 25-10-2002 the Judge of the trial Court was legally required to have appraised the evidence and also gone through the relevant law of Land Acquisition Act, 1894.
Disposal of lis in such a manner has been disapproved by august Supreme Court of Pakistan.
Kamran Co. And others v. Messrs Modern Motors and another PLD 1990 SC 713 and Provincial Government through Collector Kohat and another v. Shabir Hussain PLD 2005 SC 337, give sufficient guidance in this respect.
16. Learned Additional Advocate General, N.-W.F.P. , Peshawar while relying on the case of "Land Acquisition Collector and another v. Mian Khan and another PLD 2007 SC 620 argued that in the absence of objection/reference by the contesting respondents, i.e, Bacha etc. Under section 18 Act ibid, no order holding them entitled to the payment of enhanced compensation could have been passed and accordingly it was submitted that the judgment dated 25-10-2002 being without jurisdiction was void and thus the question f limitation for undoing the affects of the aid judgment would be immaterial.
17. Though the case-law relied upon by e learned A.A.-G. Pertains to filing of onstitutional petition in the acquisition matters but the law laid down in the said judgment fully applies to the present case.
'Relevant portion as contained in para. 9 of the said judgment reads as under:--- "All those land owners who had not raised any objection or filed reference under section 18 of the Land Acquisition Act, 1894 cannot be benefited by the judgment impugned for the simple reason that they were satisfied. Had they not satisfied, they must have invoked the provisions as enumerated in section 18 of the Land Acquisition Act, 1894 which was never done. A complete mechanism has been provided for the acquisition of land, its compensation and redressal of the grievance of the aggrieved land owners and therefore, the question of invocation of constitutional jurisdiction does not arise. The provisions as enumerated in Order XLI, Rule 33, C.P.C. Cannot be made a ground for providing relief to those land owners who had neither challenged the award by way of reference under section 18 of the Land Acquisition Act, 1894 nor filed any appeal before the High Court".
18. As against that learned'counsel representing the contesting respondents supported the impugned judgments and decree and placed reliance on the law laid down in the case titled "Muhammad Sarwar Khan and others v. Government of Pakistan and others 1998 SCM R 2197 and Suleman and 3 others v. Land Acquisition Collector, Abbotabad and others 1999 SCM R 2009 to support his contentions.
19. In the case reported as 1998 SCM R 2197 the honourable Supreme Court had approved the filing of reference/objection petition under section 18, Act ibid in a representative capacity, as provisions of Order I, Rule 8, C.P.C. Were held applicable. The law laid down in the said case is thus not applicable to the present case.
'Similarly in the other case reported as 1999 SCM R 2009 the following law was laid down, which is also not applicable to the present case.
"Land Acquisition Act (I of 1894)- -Ss, 4 & 18-Constitution of Pakistan (1973), Art. 185- Acquisition of land-Assessment and award of compensation- Appeal to Supreme Court-Owners of acquired land, dissatisfied with assessment of market value of acquired land and award given by Land Acquisition Collector, filed petition under section 18, Land Acquisition Act, 1894, to refer matter to Court and referee Court assessed compensation taking into consideration nature of acquired land--Authority dissatisfied with award of Court, filed regular first appeal before High Court which was accepted and award of Court below was modified-Landowners excluding appellants' challenged judgment of High . Court in Supreme Court by filing appeals which were accepted and judgment of High Court was set aside by Supreme Court on ground that Federal Government, its departments or authority for whose benefit land was acquired, had no right to appeal to High Court- Appellants who had not appealed to Supreme Court against judgment of High Court, filed application for execution of judgment and decree of Court which was set aside by High Court, but was restored by Supreme Court- Application filed by appellants was contested by authority contending that appellants were not entitled to derive benefit from judgment of Supreme Court because they had not appealed against judgment of High Court- Validity-After setting aside judgment and decree passed by High Court, only executable decree in field was one passed by Court below on reference under section 18 of the Land Acquisition Act, 1894 and appellants like other landowners were entitled to compensation awarded by said Court--Unjust to deprive appellants from receiving benefit of judgment and decree of Court below which was in field, merely for die reasons that they had not appealed against order of High Court when same order challenged by other landowners similarly placed had been set aside by Supreme Court".
21. Contesting respondents, who were petitioners before original Court had never filed a reference petition under section 18, Act ibid, nor was the one filed by Sahib Zar and others in representative capacity under Order 1 Rule 8, C.P.C, and thus they could not have been held entitled to the enhanced amount of compensation on the strength of the judgment passed in the said reference.
Moreover, they were also not entitled to move application afresh when earlier their application for impleadment had been rejected vide order dated 26-2-1996. Their second application dated 10-5- 1999 was neither processed under the provisions of Land Acquisition Act, 1894, nor was the same covered by any of its provision. Thus the Court entertaining the same and passing its judgment dated 25-10-2002, lacked jurisdiction in the matter. Additionally, as held in the earlier part of this judgment, the judgment dated 25-10-2002 was hit by the law settled by Supreme Court of Pakistan.
22. Though the learned counsel by placing reliance on case-law reported as 2005 SCM R 609 and 2006 SCM R 631 vehemently argued that the application moved on 19-7-2004 was hopelessly barred by time and thus the lower fora was perfectly justified in passing the impugned judgment/order dated 12-7-2006.
23. There can be no two opinions about the law so settled by the august Supreme Court but in view of the fact that the original judgment dated 25-10-2002 has been found to be without jurisdiction and void, therefore question of limitation for setting aside the same would not be of much significance. The argument is accordingly repelled.
24. Consequently while allowing this appeal, the impugned judgments passed by Senior Civil Judge, Swabi on 25-10-2002 and 12-7-2006 are set aside and the application dated 10-5-1999 moved by Bacha son of Shah Afzal and Iqbal etc. Legal heirs of Shah Said for- payment of enhanced compensation of their land on the strength of the judgment dated 19-1-1998 in the case of Sahib Zar and others is dismissed and they are not held entitled to any enhanced compensation.
25. In view of peculiar facts and circumstances of the case, parties are left to bear their own costs.