' SHAHID ANWAR BAJWA, J.---Facts giving rise to this Criminal Revision Application are that complaint under sections 3/4 of the Illegal Dispossession Act, 2005 was filed by present applicant.
In the complaint it was claimed that applicant is lawful owner of property bearing Commercial Plot No,ZC-10, Sector-1, Block No,1, Gulshan-e-Zahoor, Lines Area, KDA Scheme 35, measuring 200 Sq.
Yards. He claimed to be owner by virtue of lease-deed-dated 30-7-1992. It was alleged in the complaint that respondent No,1 prepared forged sale agreement dated 1810-2007 and then filed Civil Suit bearing No,1419/2008 in the Court of IXth Civil Judge, Karachi East for Permanent Injunction. Suit was contested by the present applicant. Suit was withdrawn on 11-3-2009.
Respondent No,3 also filed Civil Suit No,9/2009 in the same Court. Complainant filed application under Order I Rule 10, C.P.C. Consequently he was made a party in that suit. Thereafter the suit was dismissed on an application under Order VII rule 11, C.P.C. When attorney of the complainant was appearing in those Civil Suits he got information that another suit had been filed by respondent No,
1. Applicant submitted that he appointed watchman over the property and his attorney was also in possession of the property and on 3-2-2009 respondent No,1 along with his sons and other 4/5 armed persons forcibly took over possession of the property and dispossessed the complainant and his attorney from the premises. Consequently complaint under the Illegal Dispossession Act was filed.
2. The complaint filed by present applicant was dismissed by III-Additional Sessions Judge, Karachi East vide order A dated August 19, 2009, primarily on the ground that there was litigation pending between the parties.
' Learned counsel for applicant made the following submissions:--
(1) That in the complaint filed in May 2009, it was alleged that the complainant had been dispossessed on 3-2-2009 and Civil Suits were filed thereafter.
(2) That trial Court had relied upon Rahim Tahir v. Ahmed Jan and 2 others, PLD 2007 Supreme Court 423, which is clearly distinguishable. Learned counsel relied upon Haji Taj Din and another v.
Sh. Mujibullah and another, 2009 PCr.LJ 864.
3. Learned counsel for the respondents submitted that although in the complaint it was alleged that complainant was dispossessed on 3-2-2009 but the complaint was filed in May, 2009, whereas civil suit was filed by the respondent on 25-2-2009, and a counter suit was filed by the complainant on 28-2-2009. Learned counsel further submitted that complaint was filed through an attorney and so has been this application. Attorney is not owner of the property and therefore was not entitled to maintain proceeding in the Court below. In this regard he relied upon Quaid Johar v.
Murtaza Ali and another, PLD 2008 Kar.
342.
4. While exercising his right of reply, learned counsel for the applicant submitted that it was specifically stated in the complaint the attorney was in possession and that attorney was dispossessed. He submitted that possession by attorney is in law constructive possession by the donor of the power of attorney.
5. I have considered the submissions made by the learned counsel and have also gone through the file of the application as well as case law cited by the learned counsel.
6. The trial Court primarily relied upon Rahim Tahir's case. Facts of that case were that petitioner was holding leased-hold rights in respect of a plot on Mangopir Road and filed compliant under section 3(2) of the Illegal Dispossession Act, 2005 against the respondent claiming the respondent to be an illegal and unauthorized occupant of the plot. Learned Sessions Judge after obtaining report from Station House Officer of the concerned police station, dismissed the complaint with the observations that controversy between the parties pertained to possession of the premises which may not fall within the ambit of the Illegal Dispossession Act. It may be noted that case of the respondent on the other hand was that he entered into agreement of sale on 20-6-2003 and purchased property for valuable consideration. However, the petitioner while denying claim of the respondent stated that he had appointed one Yousuf as his attorney vide registered-deed dated 13-1-1974 but subsequently, power of attorney of Yousuf Ali was revoked vide registered deed dated 2-4-1998, and therefore Yousuf was no longer his attorney and was therefore no longer competent to sell. However, since the sale had taken place in 2003 the Supreme Court held that the Illegal Dispossession Act has no retrospective effect, and may not be applicable to cases of unauthorized occupants pending before any other forum on the date of promulgation of the Act. The Supreme Court further held that if case of the illegal occupant was not already pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act. Thereafter Supreme Court held that the respondent was inducted into premises who was neither owner nor a lawfully constituted attorney of the owner and was therefore illegal and unauthorized occupant of the premises and therefore contention that Illegal Dispossession Act is not applicable to such illegal occupant who was in occupation of the premises prior to the date of the promulgation of the Act has no substance.
4. In Haji Taj Din's case before a Single Judge of Lahore High Court maintainability of complaint was challenged on the ground that the complaint was incompetent in presence of pendency of civil suit filed by the owners/petitioners. The High Court held that several remedies are available under civil and criminal law at the same time. Thereafter the High Court held as under:-- "6. Several remedies can be available under the Civil or Criminal law at the same time. A person who has been dispossessed can have recourse to any remedy, such as, filing of civil suit under section 9 of the Specific Relief Act, which is summary procedure; filing of civil suit for possession under Civil Procedure Code, criminal proceedings under sections 145 and 146, Cr.P.C, initiation of criminal prosecution under section 448, P.P.C., whereas the Act, 2005 has been specially enacted to discourage the land grabbers and to protect right of owner and lawful occupant against illegal and unauthorized occupation. Under this Act, speedy, effective and easy relief has been provided to the owner as well as lawful occupant of the property. If the law provides more than one remedy to the aggrieved person, then it is his choice to avail any one of them or all other remedies. No bar or restriction can be placed upon the claimant or the aggrieved person to approach different forum at the same time to avail respective remedies. Hence, the contention of the petitioners regarding initiation of present proceedings under the Act, 2005 during pendency of contempt proceedings in a Civil Court, or criminal prosecution in case F.I.R. No, 1457 of 2008 or ejectment proceedings before the Rent Controller does not have any force. Each forum can proceed at the same time accordingly purely on merits of their own facts."
5. In the present case allegation of dispossession is that the complainant was dispossessed on 3- 10-2009. Surely it is after promulgation of the Act of 2005. The fact the civil suit was filed by both the parties against each other, in my opinion , can not deprive a complainant from criminal remedy available to him under the Illegal Dispossession Act. Holding it otherwise would mean that anybody would be at liberty to dispossess some one and thereafter run to civil Court and file a civil suit. He may even do that before dispossessing someone and then dispossess him. Would the Illegal Dispossession Act, 2005 be checkmated by such devices. In my opinion, this can never be intention of the legislature. Learned counsel for the respondent said that the complaint has been filed through an attorney and he relied upon Quaid Johar's case where the following observations were made by a single Judge of this Court:-- "The learned counsel for the applicant has vehemently contended that he being the attorney of the Ghulam Nabi Qureshi was competent to retain the possession of the flat in question and he has also filed the present complaint on behalf of the said Ghulam Nabi Qureshi but when query was made to him by the Court to show any law which empowers an attorney to proceed with the criminal case on behalf of the complainant or the accused but he completely failed to point out any law to show that an attorney can prosecute any person on behalf of the attorney. In my humble opinion also in criminal administration of Justice, a criminal lis or complaint could not be agitated or defended through the attorney."
8. I have not been able to read any provision in the Illegal Dispossession Act requiring that only owner of premises can file a complaint under the Act. In fact section 2(c) defines an 'occupier' separately from an 'owner' and occupier has been defined to mean as one who is in lawful C possession of the property. Section 3 of the Act refers to owner or occupier of such property. Firstly it is contended in the complaint that attorney was in possession; secondly an attorney always stands in the shoes of the donor of the power of attorney. As far as defending criminal complaint by an attorney is concerned there could not be any cavil with the proposition that attorney cannot do that. Otherwise it would be available to a person with lodes of money to commit a crime and then make his attorney go to the Court and face consequence, if not final fall, at least rigors of being prosecuted. As far as authorizing a person to lodge a complaint is concerned, it stand altogether on different footing.
9. A complaint has been filed in this case under the Illegal Dispossession Act and the trial Court has dismissed that complaint primarily relying upon Rahim Tahir's case. In my opinion, the trial Court has not correctly appreciated dicta of the Supreme Court. Even in that judgment the end result was that the Supreme Court set aside the order of the High Court and remanded the complaint to the Sessions Judge for decision on merits in accordance with the law. Therefore, result of the above discussion is that the order dated 19-8-2009 passed by IIIrd Additional Sessions Judge,Karachi East is set aside and the complaint is remanded to the Court below for decision on merits in accordance with the law.