' NISAR MUHAMMAD SHAIKH, J.--- This appeal is directed against the order/judgment and decree dated 18-5-2009 passed by learned Single Judge in. Suit No.69 of 2008 which was filed by the plaintiff/ respondent No.1 Haji Ghano Khan Jatoi against the defendants/appellants and others for declaration, permanent injunction, possession and specific performance.
2. According to the learned A.A.-Gt for the appellants, the Suit No.69 of 2008 was filed by the plaintiff/respondents Nos.1 on 7-1-2008 and the defendants/appellants were allowed to file their written statement but then all of a sudden, while hearing an interlocutory application, the learned Single Judge decreed the suit vide order and decree dated 26-3-2008 when the Suit was neither fixed for filing written statement nor for final hearing or final disposal and also the appellants were not even declared ex parte. He further contended that the operation of such order and decree was then suspended till further order by learned Division Bench of this Court vide its order dated 28-4- 2008 passed in HCA No.102 of 2008 which was filed by the present appellants on 16-4-2008 but during subsistence of such stay order the learned single Judge, on the application of plaintiff/respondent No.1 filed under sections 151, 152 and 153, C.P.C., corrected/amended the earlier order and decree by way of an order and amended decree dated 18-5-2009 which have been impugned in the present appeal filed on 29-5-2009 while withdrawing the earlier Appeal No.102 of 2008 on the same day. He argued that both the orders and decrees dated 26-3-2008 and 18-5- 2009 are void, illegal and bad in law and whole controversy needs to be re-examined for deciding the matter on its merits as the very document/letter dated 17-6-1996 of the Member, Land Utilization, Board of Revenue, Sindh on which the alleged title, of respondent No.1 and of his predecessors-in-interest was based, is proved to be a bogus document and a similar Suit No.944 of 2004 filed by one Ali Gohar, attorney of the Predecessor-in-interest of respondent No.1, against Sikandar Ali Jatoi and others including the present appellants, is still pending in this Court and it was therefore, the NOC for sale of suit-land issued by Mukhtiarkar, Shah Faisal Town on 2-6-2005 in favour of respondent No.1 was withdrawn/cancelled by him on 13-6-2005 but the learned single Judge failed to appreciate the correct position regarding the title of the suit land which exclusively belongs to the government, the appellant No.1 and not to the plaintiff/respondent No. 1 against whose title a J.M. No.13 of 2008 is already filed by the said Sikandar Ali Jatoi in this Court on 16-4- 2008.
3. On the other hand, the contention of learned counsel for the respondent No.1 was that the very order and decree dated 26-3-2008 were passed on merits after hearing both parties and only an error, caused due to omission, was subsequently corrected by amended order and decree dated 18-5-2009 which was also passed by learned single Judge after hearing the parties, therefore, there is no violation of the order passed by appellate Court whereby the operation of the impugned order and decree was suspended as the same could not be presumed to be a stay order against the necessary correction of an error made in the order and decree under section 152, C.P.C. He further argued that the Court had ample power to dispose of a suit and decree the same even at first hearing and since the controversy was limited only to the extent of illegal withdrawal/cancellation of NOC for sale of the suit-land, therefore, the learned single Judge after hearing the Advocates for the parties on an application under, section 151, C.P.C. Rightly decreed the suit in accordance with law. He also contended that the Mukhtiarkar had cancelled the NOC for sale arbitrarily, malafidely and illegally and also without assigning any reason though the respondent No.1 had genuine title documents which were also duly entered in the revenue record and all the relevant documents including the letter in question dated 17-6-1996 were proved to be the genuine documents as admitted in the initial comments of the Member (Land Utilization) Board of Revenue Sindh which were given with a letter dated 25-11-2004 to the Commissioner who filed the same in Suit No.994 of 2004 together with his report dated 4-7-2007. Learned counsel also contended that there is no illegality or irregularity in the impugned order and decree passed in accordance with law after, taking into consideration of all the relevant facts and the availablerecord and there was nothing to rebut the claim of respondent No.1 as no written statement was even filed by the appellants therefore, their appeal is liable to be dismissed.
4. Likewise, the learned counsel for the respondent No.2 namely Asif Ali,' while adopting the same arguments advanced by learned counsel for the respondent No.1, added that the respondent No.2 is a bona fide purchaser of suit land from respondent No.1 and he has paid a huge amount of sale consideration and such sale agreement was also executed in his favour but the appellants have filed this appeal with mala fide intention and the same is also not maintainable. Whereas the learned counsel for respondent No.4 has submitted, and is rightly so, that the resnondent No.4 is a pro forma party and no relief was sought against him and therefore, his name was deleted on 5-3- 2008 from the array of defendants, by consent of the parties.
5. We have considered the arguments of learned counsel for the contesting parties and also perused relevant record including the R&Ps of the following cases :---
(i) Suit No.69 of 2008 Haji Ghano Khan Jatoi v. Province of Sindh and 6 others.
(ii) HCA No.102 of 2009 Province of Sindh and others v. Haji Ghano Khan Jatoi and others.
(iii) JM No.13 of 2008 Sikandar Ali Jatoi v. Haji Ghano Khan Jatoi and 7 others.
(iv) Suit No.994 of 2004 Ali Gohar v. Sikandar Ali Jatoi and 8 others.
6. In his Suit No.69 of 2008 the plaintiff/respondent No.1 prayed for the following reliefs:--- "(a) That this honourable Court may be pleased to declare the plaintiff as lawful bona fide owner of the land of 0.37 acres (Thirty seven GHUNTAS or measuring 4477 Sq. Yards). R.Sr. No.120 Deh Drig Road Karachi.
(b) This honourable Court may further be pleased to issue directions to defendants Nos.2 and 5 to remove/scrap the temporary Road diversion from the said property and hand over it's peaceful vacant possession, to the plaintiff.
(c) This honourable Court may further be pleased to issue direction to defendant No.1 to cause to issue N.O.C. For sale and Deh Form-II to plaintiff, a lawful bona fide owner of the property.
(d) This honourable Court may further be pleased to issue directions to defendant No.6 to perform sale contract as per "Agreement to ' Sale" dated 21-5-2005 after issuance of N.O.C. For sale and Form-II by the competent Authority.
(e) Any other relief/reliefs as this honourable Court may deem fit and proper.
(f) Cost of the Suit."
7. The last and relevant part of the order dated 26-3-2008 whereby the suit of plaintiff/respondent No.1 was decreed by learned single Judge, reads as under:--- "I have heard learned counsel for the plaintiff and the learned A.A.-G. Who is assisted by Muhammad Younus Dehri, Mukhtiarkar, Shah Faisal Town Karachi and with their assistance I have perused the case file. It appears that the Mukhtiarkar, Shah Faisal Town, Karachi, had made several entries in respect of the said property and had also been issuing NOCs to different parties, including the plaintiff. He, however, had recalled the NOC issued in favour of the present plaintiff.
Neither any written statement nor counter affidavit has been filed either by the Provincial Government or by the City District Government, Karachi, till date. Keeping in view the above facts and circumstances of the case, the conduct of Mukhtiarkar, Shah Faisal Town, Karachi, creates doubt about maintaining the record and documents of the suit property. I do not find any justification in the arbitrary order of the Mukhtiarkar cancelling the NOC already issued by him to the plaintiff. This property has changed hands several times on the NOCs, issued by the same Mukhtiarkar who has now cancelled the NOC issued by him. The Mukhtiarkar, Shah Faisal Town, Karachi, has not filed any document in this Court to substantiate his order of cancelling the NOC, issued in favour of the plaintiff. In the circumstances, order of cancellation of NOC issued by the Mukhtiarkar, Shah Faisal, Karachi, is set aside. C.M.A. No.436 of 2008 is dismissed as not pressed.
Accordingly, the suit is decreed on the above terms."
' On the above order, decree was drawn as under:--- "The suit coming on this 26th day of March, 2008 for orders before Mr. Justice Khawaja Naveed Ahmed, in the presence of Mr. Ghulam Akbar Khan Jatoi, Advocate for the plaintiff and Mr. Ahmed Pirzada, Additional Advocate-General Sindh; it is hereby ordered that the Mukhtiarkar, Shah Faisal Town, Karachi, has not filed any document in this Court to substantiate his order of canceling the NOC, issued in favour of the plaintiff and order of cancellation of NOC issued by the Mukhtiarkar, Shah Faisal Town, Karachi, is set aside. Accordingly, it is hereby ordered that the suit of the plaintiff be and is hereby decreed against the defendants in terms of C.M.A. No.1776 of 2008, as under:--- "That the Mukhtiarkar Revenue, Shah Faisal Town, Korangi, Secretary Land Utilization Department, Board of Revenue Sindh, Karachi and E.D.O. Revenue be and is hereby directed to issue NOC for sale and Deh Form-II."
8. Subsequently, on the basis of another order passed by learned single Judge on 18-5-2009 whereby the correction was allowed to be made in the order/judgment and decree dated 26-3- 2008, the amended decree was framed, the last and relevant part of which is reproduced below:-- - ".Accordingly, it is hereby ordered that the suit of the plaintiff be and is hereby decreed in terms of C.M.A. No.1776 of 2008 as well as prayer clause "C" of the plaintiff as under:- That the defendant No.1 i,e, Secretary Land Utilization Department, Board of Revenue, Sindh Karachi, Mukhtiarkar Revenue, Shah Faisal Town, Korangi, and E.D.O. Revenue be and is hereby directed to issue NOC for sale and Deh Form-II to the plaintiff, a lawful bona fide owner of the property."
9. it is nowhere shown nor the record indicates as to what provision of law was applied to decree the suit of plaintiff at an early stage of the case. Admittedly, there was no ex parte decree under Order IX, Rule 6, C.P.C. Due to absence of defendants, nor the decision was made under Order XVII, Rules 2 and 3, C.P.C. On failure of any party to attend the Court or produce evidence. So also there was no order or judgment under Order XII, Rule 6, C.P.C. On admission of any fact by any of defendants, nor the suit was disposed of under Order XV, Rule 1 or 2, C.P.C. On the ground that the parties or any of defendants was not at issue. Moreover, the suit was not fixed for final disposal so as to attract the provisions of Order XV, Rule 4, C.P.C. For just decision of the suit. Whereas other provisions of C.P.C. Relating to disposal of the suit, by way of compromise decree etc, will have no application to this matter. However, the facts and circumstances of the case including the observation, made by learned single Judge in his order dated 26-3-2008 reproduced above, that neither any written statement nor counter affidavit has been filed till date by the Provincial Government or the City District Government Karachi, would attract at the most, the provisions of Order VIII, Rule 10, C.P.C. Which read as under:---
10. < u>"Procedure when party fails to present written statement called for by Court.--- Where any party from whom a written statement is so required fails to present the same within the time fixed by. The Court, the Court may pronounce judgment against him, or make such order in relation to suit as it thinks fit."
10. The record reveals that the suit presented by plaintiff (respondent No.1) on 7-1-2008 was admitted on 17-1-2008 and the defendants No.1 to 4 (appellants) as well as defendant No.5 were served with summons respectively, in between 26-1-2008 to 11-2-2008, for their appearance before the Additional Registrar (O.S.) on 15-2-2008 when he gave four weeks time for filing written statement by defendants Nos.1 to 5 and directed to repeat summons to remaining defendants Nos.6 and 7 and thereby he fixed the matter for 17-4-2008. In the meantime, the Court ordered on 3-3-2008 for issuance of notice of C.M.A. No.436 of 2008 (application under Order XXXIX, Rules 1 and 2, C.P.C.) to the defendants for 5-3-2008. But on next date i,e, 4-3-2008, the plaintiff filed an application under section 151, C.P.C. (C.M.A. No.1776 of 2008) with a prayer to direct the Mukhtiarkar, Shah Faisal Town, Secretary, Land Utilization Department and EDO Revenue to issue NOC for sale and Deh Form-II. On 5-3-2008 when the defendant No.7 also made his appearance, the names of defendants Nos.5 and 7 were ordered by consent of parties' Advocates, to be deleted and the matter was adjourned to 6-3-2008 when the same was listed for orders on C.M.A. No.1776 of 2008 (application under section 151, C.P.C.) and hearing of C.M.A. No.436 of 2008 (application under Order XXXIX, Rules 1 and 2, C.P.C.). On such date the office was directed to send a file of Suit No.994 of 2004. On 7-3-2008 when the arguments were heard on C.M.A. No.1776 of 2008, the matter was reserved for order. Such order was then passed on 26-3-2008 whereby the Suit of plaintiff was decreed as mentioned above.
11. It is clear from the above position of record that in the first instance on 15-2-2008 the defendants/appellants were given four weeks time in a routine, for filing their written statement but before expiry of such period, the matter was kept reserved with effect from 7-3-2008 for order on an interlocutory application and was never fixed on any day for filing written statement as one of the defendants i,e, defendant No.6 was not yet served with summons and therefore, the suit was already fixed for 17-4-2008 but in the meantime, the suit was finally decreed on 26-3-2008 though the same was never fixed or listed for final hearing or final disposal. Such a peculiar type of decree passed in quite unusual manner in clear , of the legal procedure, was not warranted under the law disregard
12. Apart from above, the suit was since instituted against the Government and its functionaries in respect of their acts purporting to be done in their official capacity as public officers and since no notice was given to them prior to filing of the suit in terms of subsection (1) of section 80, C.P.C., therefore, the mandatory period of three months was to be allowed to the Government to submit its written statement which could not be curtailed in any way as the proviso to subsection (2) of section 80, C.P.C. Lays down in express terms that the Court shall allow not less than three months to the Government to submit its written statement. But contrary to such mandatory provisions of law, the suit was decreed within two months of service of summons which was even not effected upon all defendants, for which the matter was yet to be considered on 17-4-2008 i,e, after about three weeks of the order and decree dated 26-3-2008 by which the proceedings of the suit stood concluded.
13. For the reasons as discussed above, we find that the learned Single Judge has acted arbitrarily while passing a decree at a premature stage of hearing an interlocutory application, therefore, the very order and decree dated 26-3-2008 are not sustainable in law and accordingly, the subsequent amended order and decree dated 18-5-2009, will be of no legal effect or consequences and thus, the same are hereby set aside, without touching the merits of the case: The suit is remanded for disposal according to law and the interlocutory applications disposed of due to decree of the suit, shall be deemed to be pending for hearing and disposal. In the meantime, the appellants shall file their written statement within one month from today, else the matter shall proceed against them. In accordance with law.
14. This appeal is therefore allowed in the above terms, however, with no order as to costs.