Atir Mahmood, J.: Through this civil revision, the petitioner has impugned order dated 12.03.2008 passed by learned Additional District Judge, Rawalpindi whereby the petition under Order XXI rule 32, read with Order XXXIX rule 2(3) of CPC (hereinafter referred as "the application") for punishment to the respondents for breach of their undertaking, was dismissed.
2. Brief facts of the case are that the petitioner-plaintiff namely Muhammad Nazir, being owner in possession of the suit property, filed a suit for permanent injunction in the court of learned Civil Judge, Kahuta in respect of land measuring 6 marlas bearing property No.38 situated at Thoha Khalsa, which is an evacuee property alleging therein that the said property was allotted to the father of the petitioner through P.T.O. with specific boundaries and he is enjoying the possession of the suit land since long, whereas the respondents have no concern whatsoever with the suit land but they are intended to interfere into the possession of the petitioner and changing the nature of the suit property. Alongwith the suit, the petitioner also filed an application under Order 26 rule 9 of CPC for appointment of Local Commission for inspection of the spot. The learned Civil Judge vide order dated 15.01.2007 granted ad-interim injunction directing both the parties to maintain the status quo till the next date of hearing and Raja Habib-ur-Rehman, Advocate was appointed as a Local Commission with the direction to visit the site and submit report about the factual position at the spot. The Local Commissioner inspected the spot and submitted his report to the learned trial court. The respondents did not file any objection to the report of the Local Commission. The learned trial court accepted the application under Order XXXIX rule 1 and 2 of CPC, in the terms that the respondents were restrained from interfering into the possession of the petitioner, encroaching the suit land and from changing its nature, vide order dated 09.06.2007. The respondents being dissatisfied from the said order filed an appeal before the learned Additional District Judge which was disposed of vide order dated 06.02.2008. The operative part of the said order is reproduced as under:- "In view of the statement made by the learned counsel for the appellants, the suit of the respondents has born fruit and has become infructuous. This appeal is accordingly accepted, the impugned order is set aside and as a result suit of the respondents stands dismissed. No order as to costs".
Thereafter, the petitioner moved an application under Order XXI rule 32 read with Order XXXIX rule 2(3) of CPC seeking punishment to the respondents for breach of their undertaking and violation of the orders passed by the learned Additional District Judge and also for restoration of possession.
The petitioner also moved an application for grant of status quo and appointment of Local Commission. The learned Additional District Judge having taken cognizance of the matter summoned the respondents, who filed their written statement on 12.03.2008. The learned Additional District Judge after hearing both the parties dismissed the application of the petitioner vide order dated 12.03.2008 which is impugned in the instant civil revision. Hence this civil revision.
3. Learned counsel for the petitioner submitted that the impugned order is against the law and facts of the case; that the impugned order passed by the learned appellate court is result of misreading and non-reading of evidence; that the learned appellate court while dismissing the application remained oblivious of the law that even rejection of the plaint on the undertaking of the respondents was a decree within the meanings of section 2(2) of CPC as held by this Court in the various cases; that the petitioner had moved an application for appointment of Local Commission again before the learned Additional District Judge to ascertain the physical position at the suit property, but the learned appellate court has not adverted to the same at all and dismissed the application on the same day when the respondents filed their reply to the application filed by the petitioner; that the learned appellate court has also not been able to appreciate that if the undertaking given before a court of law is allowed to be violated by any party to the proceedings then no lawful action can be taken against such a party and it will become mockery of law.
4. On the other hand, learned counsel for the respondents has supported the impugned order.
5. Arguments heard. Record perused.
6. Scanning of the record reflects that the petitioner by filing the application asserted that the respondents had violated the undertaking given by them before the learned Additional District Judge on 06.02.2008 and have trespassed over the property and constructed one room and four walls upon the suit property owned and possessed by the petitioner. He sought the restoration of the possession and initiation of proceedings against the respondents for committing the contempt of court by violating the order dated 06.02.2008.
7. In reply to the application, the respondents did not deny the undertaking given by their learned counsel before the learned appellate court but submitted that they have not violated the said undertaking. They however raised an objection that the application could not be filed before the learned appellate court as it was a court of appeal and the application could be decided only after framing of issues and recording of evidence by the learned trial court. The relevant paragraph of the written reply is reproduced as under:-
8. In my view the impugned order passed by the learned Additional District Judge/appellate court is not sustainable for the following reasons:-
(i) That the learned Additional District Judge failed to appreciate that there was a specific admission of the respondents that there were triable issues raised in the said application which could not be decided without framing of issues and recording of evidence. The contention of the respondents that the learned Additional District Judge was not competent to frame the issues and record the evidence is absolutely misconceived. It is observed that if any restrained order is passed by an appellate court or there is any undertaking given by any of the parties before the said court but subsequently it is violated then the only court which can proceed further on application of any aggrieved party, is the same court before whom any undertaking was given or any order was passed. Therefore, the learned Additional District Judge should have proceeded with the matter by framing the issues and giving an opportunity of hearing to the parties to lead their respective evidence. The denial by the learned Additional District Judge to proceed with this matter amounts to negation of dispensation of justice
(ii) That a party who undertakes to do an act before the court and on the basis of that statement/undertaking, the proceedings are dropped i.e. suit or appeal is dismissed then the said undertaking has the effect of a decree and is executable against the defaulting party in its letter and spirit.
9. In the present case, the respondents undertook that they will not interfere in the suit property owned by the petitioner but allegedly they trespassed and made some construction over the suit property therefore, it was incumbent upon the learned Additional District Judge/appellate court to dilate upon the matter itself but the petitioner cannot be directed to get the demarcation of the disputed property and raise his grievance before any other legal forum. I have no doubt in my mind that it was duty of the learned appellate court to ascertain the exact situation of the suit property, it may be through demarcation of the suit property and if there was any violation made by the respondents of their own commitment/undertaking given by their counsel before the learned Additional District Judge then an appropriate order in that regard should have been passed. This aspect becomes more significant when there is an application filed by the petitioner for appointment of a local commission which remained unattended and the learned Additional District Judge failed to take notice of the same nor any order was passed thereupon.
10. The impugned order passed by the learned Additional District Judge is a nullity in the eye of law.
11. In view of the above discussion, this civil revision is allowed, the impugned order dated 06.02.2008 passed by the learned Additional District Judge is set-aside. Resultantly, the application under Order XXI rule 32, read with Order XXXIX rule 2(3) of CPC alongwith the application under Order XXVI rule 9 of CPC for appointment of local commission shall deem to be pending before the learned Additional District Judge, who shall decide the same afresh in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.