Muhammad Noor Meskanzai, J.--Through this common judgment we propose to decide Constitutional .Petitions Nos. 455, 538 of 2009, Civil Revision Petitions No's. 453 of 2007 and 338 of 2008, as common question of law and facts are involved therein.
Facts of Civil Revision No, 453 of 2007.
2. Facts relevant for the disposal of instant petition are that the respondents filed a suit for declaration and permanent injunction against petitioners in the Court of Qazi Bori/Sanjavi at Loralai. It was averred in the suit that the plaintiffs have landed property in Mouza `Narai Dag' Sub- Tehsil Sinjavi and since their forefathers they are share holders in said land. It was further averred.in the suit that plaintiffs are `Lathband Bazgars' of Government of Balochistan over land bearing Khasra No, 1203 upto 1260. According to plaintiffs most of the share holders are irrigating their lands through rainy water channel known as `Wah' since last 25 years. It was case of the plaintiffs that petitioners/ defendants are interfering in the said water channel by way of stopping the water and changing its direction towards their land.
3. The suit was contested by the defendants/petitioners by way of filing written statement, whereby besides raising certain preliminary legal objections, claim of plaintiffs/respondents was repudiated on merits.
4. The learned trial Court, out of the pleadings of parties framed following issues: {{URUD TEXT}}
5. Thereafter the parties were directed to adduce evidence in support of their respective claims.
The plaintiffs produced two P.Ws. and got recorded statement of their attorney. In rebuttal, the defendants examined five D.Ws. and Petitioner No, 1 (for himself as well as attorney for other defendants) entered in the witness box.
6. The learned trial Court after hearing the parties and evaluating the evidence decreed the suit vide judgment and decree dated 12th June, 2007. The petitioners challenged the above referred judgment and decree before the learned Majlis-e-Shoora, Loralai by way of filing appeal, which too met with the same fate, hence instant revision petition.
Facts of Civil Revision No, 338 of 2008
7. The respondents filed contempt application against petitioners on the ground that in violation of judgment/decree dated 12th June, 2007 passed by. Qazi Sanjavi/Bori at Loralai, they plied tractor in the land rendering themselves liable to be prosecuted under the Contempt of Court Act The Petitioner No, 2 filed his rejoinder to contempt application, however, rest of the respondents in contempt application were proceeding against ex parte.
8. The learned trial Court framed following point for determination:
9. The applicants (in contempt application) in support of the acusation produced three A.Ws. and Applicant No, 2 himself appeared in the witness box. Whereas,. in rebuttal respondents examined R.W.1 Muhammad Shah, R.W.2 Zahir Shah, and Respondent No, 2 Syed Noor entered in the witness box.
10.The learned Qazi vide order dated 31st May, 2008 came to the conclusion that the decree has not been violated, as such, dismissed the contempt application. The Respondent No, 1 feeling aggrieved of the above referred order preferred an appeal before the Majlis-e-Shoora, Loralai. The learned Majlis-e-Shoora vide order dated 24th September, 2008 accepted the appeal and set aside the order dated 31st May, 2008 passed by Qazi Bori/Sanjavi at Loralai and remanded the case to the trial Court with direction to reconsider the evidence produced by the parties. The parties be provided opportunity to lead further evidence if they desire so, thereafter to decide the matter in accordance with law, hence, instant revision petition.
Facts of CPs. Nos. 455 and 538 of 2009 11.The case of the petitioners is that feeling aggrieved of the order dated 24th September, 2008 passed by the learned Majlis-eShoora, Loralai whereby petitioner was/were found guilty of Contempt of Court Act and sentenced them to five month, they filed Civil Revision Petition No, 338 of 2008 accompanied by CM.A. No, 1353 of 2008 before this Court. This Court vide order dated 21st November, 2008 was pleased to suspend the impugned order passed by the Majlis-e-Shoora, Loralai. The order passed by this Court was placed before learned Qazi Bori/Sanjavi, but the earned Qazi did not take into consideration the order passed by the. Court and vide order dated 12th November, 2008 sentenced the petitioners under Contempt of Court Ordinance for five months.
The petitioners assailed the latter order by way of filing appeal before the learned Majlis-e-Shoora, Loralai. The learned Majlis-e-Shoora vide order dated 30th December, 2008 dismissed the appeal filed by petitioners, hence, instant Constitutional petitions.
12.Learned counsel for the petitioners contended with vehemence that the learned trial Court as well as appellate Court committed material irregularity in decreeing the suit and dismissing the appeal filed by the petitioners. It was next contended that there was no material whatsoever on record to justify the drawing of a decree. It was strenuously urged that the suit was not competent as, in fact the property in question vests in the Government and a specific plea to such effect was raised by petitioners in their written statement. The learned trial Court though framed Issue No, 1 in this regard, yet failed to dilate upon the issue with refeience to reasons based on law. Similarly, contempt proceedings initiated by the trial Court followed by conviction are not ,sustainable for want of jurisdiction. The trial Court was not competent to initiate contempt-proceedings and the appellate Court failed to take legal notice of this fact. This learned counsel for the petitioners prayed for acceptance of Civil revisions and as well as Constitutional petitions.
On the other hand learned counsel for the respondents while controverting the arguments so forwarded by the learned counsel for petitioners vehemently opposed the submissions. Learned counsel for the respondents submitted that the trial Court was quite competent to-proceed with the matter and similarly on violation of orders passed by the trial Court the petitioners were liable to be prosecuted through the process of contempt proceedings, as such were rightly sentenced.
13. We have considered the contentions so advanced by the learned counsel for the 'parties and perused the available record. A conscious application of judicial mind would lead to an irresistible conclusion that the Civil Revision Petition No, 453 of 2007, must succeed on the sole ground of incompetency of Civil Suit No, 25 of 2006. Perusal of record reflects that admittedly, the property in question vests in the Government of Balochistan. For ready reference Para No, 2 of the plaint is reproduced: {{URUD TEXT}} Similarly, the respondents raised objection upon the maintainability of suit on such ground and the trial Court framed Issue No,
1. For the sake of convenience the same is reproduced: {{URUD TEXT}}
14. No doubt; the trial Court dealt with this issue mechanically and, thus, the findings so arrived at qua issue No, 1 are absolutely illegal, perverse and contrary to the norms of natural justice, this point itself is sufficient enough to decide the fate of all four cases. During the course of arguments when the learned counsel for the respondents/plaintiffs was confronted with this legal aspect of the case he tried to justify the findings but failed to satisfy the Court and ultimately conceded that the suit in present form was not competent. Even otherwise, the law on the subject stands settled that in the case where the subject matter is immoveable property and the same vests or is claimed by the Government, in such like cases, the MBR through its Secretary is a necessary party.
In case of non-impleadment of the Government in the suit/proceeding as party, the suit so filed and the proceedings so carried out are incompetent and non-maintainable. By holding the view, we are fortified by the judgment reported in 2010 SCMR 115 (Government of Balochistan, CWPP & H Department and others v. Nawabzada Mir Tariq Khan Magsi relevant at page 119), wherein it has been held as under: "The above reproduced section has been couched in a simple and plain language and there is hardly any need for its scholarly interpretation and it simply provides that a suit instituted against Government, the authority to be named as defendant would be Federal Government of Pakistan or Province concerned as the case may be. No suit can be filed against Provincial Government without impleading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable."
In the light of above discussion, we feel no hesitation in holding that Civil Suit No, 25 of 2006 was ' incompetently filed, therefore, the Judgment and decree dated' 12th June, 2007 passed by the learned Qazi Bori Sanjavi and upheld by Majlis-e-Shoora are hereby set aside and the suit filed by the plaintiffs/respondents is dismissed. However; the respondent/plaintiff is at liberty to file a fresh suit subject to all just exceptions.
15. As discussed hereinabove, the judgment and decree referred to herein above being nullity in the eye of law has been set aside. Similarly, on the same analogy the contempt proceedings, which conceived Constitutional Petitions Nos. 455, 538 of 2009 and Civil Revision No, 338 of 2008, being nullity must culminate in acceptance of petitions for a variety of reasons. Firstly, the contempt proceedings were initiated on the basis of a decree which itself was a nullity. Secondly, the Court of Qazi was not competent to initiate the contempt proceedings which resulted in conviction of petitioners. Learned Qazi has recorded conviction under Section 5 of Contempt of Court Ordinance, 2003 whereas under Section 5, the High Court and Supreme Court can proceed with the matter and record conviction if case is made out. The Qazi was required to have had made a reference to the High Court after entertainment of contempt application but instead of adopting the legal course, the learned Qazi himself proceeded with the matter and recorded the conviction. The course adopted by the learned Qazi is in utter disregard and flagrant violation of relevant law, therefore, the whole proceedings are ab initio void. By holding the view we are fortified by the dictum laid down in the judgment titled as Yasir Arfat v. Vice-Chancellor, Mehran University reported in 2000 CLC page 387 (relevant at page 393), Relevant observations therefrom are reproduced herein below:-- "It is manifestly clear from the provisions of Section 3 and sub-section (4) of Section 5-of Contempt of Court Act and Section 228, P.P.C. that the Subordinate Courts could punish for contempt of Court only where the contempt was committed in the face of the Court or its orders were disobeyed or disrespected".
16. In the instant case neither the contempt was committed in the face of the Court nor its orders were disobeyed or disrespected, therefore, we are of the considered opinion that the entire proceedings conducted by the trial Court under Contempt of Court Act were corum non judice.
Resultantly we accept all the petitions, set aside the order dated 12th November, 2008 passed by learned Qazi Bori Sanjavi, in contempt proceedings and quash the whole proceedings conducted by the lower forums. The contempt application filed by the respondents/applicants is hereby dismissed.