MUHAMMAD AMEER BHATTI, J. --- Through this single order, I propose to decide C.R. No. 1730/2012 and C.R. No. 1163/2011, as common question of law and facts are involved in these cases.
2. The revision petition No. 1730/2012 is directed against the orders passed by the learned Trial Court dated 19.06.2009 and 14.07.2009 and in appeal the order of the learned first Appellate Court dated 03.02.2011-, whereby the appeal of the petitioner was dismissed being time-barred.
3. In revision petition No. 11163/2011, order of the first Appellate Court dated 03.02.2011 was challenged to the extent of acceptance of the appeal of the respondents.
4. The brief facts of the case are that the suit for declaration and permanent injunction was filed by the present petitioner alongwith two others, accompanied by an application for temporary injunction which was contested by respondent No. 1 and during the pendency of this suit, the application for temporary injunction was accepted by the learned Trial Court which was varied by the learned first Appellate Court. The order of the learned first Appellate Court was challenged in C.R. No. 1118/2008 and this Court after providing the opportunity of hearing to the parties passed the following order:- "As regards the petitioners' protection of possession is concerned, though an eviction order has been passed by the Revenue Court, but the learned counsel for the petitioners states that it has been challenged in appeal. Be that as it may, such order can be held in abeyance till the time the question of entitlement is decided by the Court of competent jurisdiction. However, this shall be subject to an obligation that petitioner No. 2 shall deposit with the Trial Court the rental, which he is supposed to pay to respondent No. 1 under the contract, if any, and in this regard, an appropriate order shall be passed by the Trial Court."
5. Subsequently, this order was challenged in C.P. Nos.. 1655 and 1909-L of 2008 by both the parties (petitioners and respondent No. 1). Both the petitions were dismissed by the Hon'ble Supreme Court vide order dated 26.12.2008, therefore, the order of this Court dated 17.10.2008 attained finality. In pursuance of the order of this Court, the learned Trial Court directed the petitioner to deposit the rental amount determined by the Civil Court which the petitioner failed to deposit, therefore, his right to participate in the suit was struck off and the right of evidence of the petitioner was also closed with the observation that his evidence available on record stood brushed aside. On the application of respondents Nos. 1 to 3, the learned Trial Court dismissed the suit vide judgment and decree dated 14.07.2009. But in appeal filed by the petitioner and others, the learned District Judge accepted the appeal to the extent of the two co-appellants/plaintiffs and remanded the case back to the learned Trial Court to their extent for its decision on merits after recording the evidence of the parties, however, to the extent of the petitioner, appeal was dismissed being barred by limitation, hence the revision petition No. 1730/2012 is against the dismissal of appeal, whereas the connected C.R. No. 1163/2011 is against the acceptance of the appeal of the co-appellants/plaintiffs.
6. Learned counsel for the petitioner contends that the suit of the other two plaintiffs have been remanded back to the learned Trial Court for its decision on merits, therefore, even if the appeal of the petitioner was time-barred, the same would have been condoned, thus the learned first Appellate Court has committed material illegality and irregularity by dismissing the appeal of the petitioner. He further contends that it is fundamental right of every person to avail fair opportunity of hearing and defend his right as granted by the Constitution of Islamic Republic of Pakistan but by denying this fundamental right, the learned first Appellate Court has failed to exercise his jurisdiction vested in it under the law, therefore, the order impugned is not sustainable in the eye of law.
7. On the other hand, learned counsel for the respondents contends that the matter has already attained finality, as in the earlier round of litigation, the dispute settled by this Court was affirmed by the Hon'ble Supreme Court, therefore, the petitioner has no case, as he has failed to comply with the orders of this Court as well as the lower Courts and the learned Trial Court rightly struck off his right and consequently dismissed the suit for committing default in depositing the rental amount.
8. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
9. The crux of the case is that the interim relief by way of protection of the possession on the suit land and alienation by the respondents had been sought by the petitioner which was allowed by the learned Trial Court, however, in appeal, the order was altered and in revision petition before this Court, the possession of the petitioner was protected alongwith restraint order regarding alienation subject to payment of rent to be determined by the learned Trial Court. The learned Trial Court in pursuance of the order of this Court, determined the rent which had to be paid by the petitioner to avail the advantages of the interim relief (conditional) granted by this Court and it is settled law that if the condition of any order has not been fulfilled, the result would be obvious. Meaning thereby the petitioner/plaintiff would be disentitled to any protection by way of such order. So, to this extent, the learned Trial Court was only competent to lay off its hands for protection of the possession of the petitioner if he had failed to deposit the amount as determined by the learned Trial Court. The conditional order of this Court was for the grant of temporary injunction which did not, in any way, affect the merits of the case, therefore, the inference drawn by the learned Trial Court that the order of this Court had been violated and the painstaking labour of the learned Trial Court to get the order complied with, seems on the face of it against the spirit of the order. Thus, the closing of his right to lead the evidence was patently illegal and without lawful authority. This Court only issued the conditional injunctive order and the matter before this Court was of interlocutory nature having no nexus with the merits of the case and this aspect of the case has not been attended to by both the Courts below while passing the impugned orders.
10. So far as the observation of the learned first Appellate Court concerning that the appeal of the petitioner is time-barred, the conclusion drawn by the learned Court on the face of it was illegal as the appeal of the co-appellants was within time and it is settled law that if any appeal against the same order is pending adjudication, the appeal of other appellant even if time-barred, would be condoned for its decision on merits. Reliance is placed on Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 S.C. 449).
11. In the given circumstances, both the Courts below have misread and misconstrued the record of the case and the order of this Court.
Therefore, the entire proceedings initiated against the petitioner and consequent dismissal of his suit and appeal are contrary to the facts, law and order of this Court, so are set aside. The plaint of the petitioner shall be deemed to be pending before the learned Trial Court alongwith the co- plaintiffs with the direction to the learned Trial Court to proceed with the case on merits strictly in accordance with law. As a result, this petition is allowed while the C.R. No. 1163/2011 filed by the respondent No. 1 stands dismissed. No order as to costs.
Civil revision .