Calls in question the legality and validity of the judgment dated 17th October, 2015 handed down by the learned District Judge, Bhakkar, whereby the appeal preferred by the respondents calling in question the legality and validity of order dated 12th May, 2015, made by the learned Civil Court at Bhakkar was disposed of with certain observations.
2. Learned counsel for the petitioner contends that through order dated 12th May, 2015, the learned Civil Court granted ad-interim temporary injunction against the petitioner and in favour of the respondents maintaining status-quo regarding possession of the property subject matter of the suit instituted by said respondents but with the exception that the said prohibitory order shall not eect any order of other court or proceedings of any department.
Further submitted that the learned trial court in the said order deleted the Province of Punjab, Tehsildar as well as Halqa Patwari from the array of the defendants concluding that they are not necessary party. Submitted that the respondents preferred an appeal which was not maintainable as the ad-interim temporary injunction was issued and the application for grant of temporary injunction was yet to be decided. Submitted that the learned District Judge while disposing the appeal through judgment dated 17th October, 2015, exercised the jurisdiction illegally and with material irregularity whereby direction was issued to the learned trial court to re-settle the matter with reference to arraying the defendants whose names were deleted. Further submitted that status-quo was maintained by the learned District Judge while deciding the appeal resulting in suspension of proceedings before the revenue court in the petition for ejectment led by the petitioner against the respondents.
3. On the other hand, learned counsel for the respondents at the very outset submitted that the revision petition is barred by time and C.M. No.3-C of 2016 has been led by the petitioner seeking condonation of delay. Contended that the provisions of Section 5 of The Limitation Act, 1908 (Act IX of 1908) (Hereinafter called Act IX of 1908) cannot be applied to the proceedings under Section 115 of The Code of Civil Procedure, 1908 (Act V of 1908)
(Hereinafter called The Code). Help was sought from the dictum laid down in "CITY DISTRICT GOVERNMENT, LAHORE through District Coordination Ocer, Lahore v Mian MUHAMMAD SAEED AMIN" (2006 SCMR 676). Continuing the arguments and while placing reliance upon the rule of law enunciated in "PROVINCE OF PUNJAB through District Ocer Revenue, Rawalpindi and others v MUHAMMAD SARWAR" (2014 SCMR 1358), it was contended that the revision petition is liable to be dismissed being barred by time.
4. Submitting arguments on merits, it was contended that the order passed by Assistant Commissioner regarding eviction of respondents on 14 June, 2013, was called in question by the respondents by ling appeal before the learned Additional Commissioner (Revenue), Sargodha, who dismissed the appeal through order dated 29th August, 2013, and the respondents led revision petition against both the orders and the learned Member Board of Revenue through order dated 25th February, 2015, while setting aside the orders referred to, remanded the case to the Additional Commissioner (Revenue) which matter is still sub-judice before the said revenue court. Argued that in the circumstances no exception can be taken to the judgment of learned District Judge, Bhakkar.
5. The petitioner led C.M. No.3-C of 2016 seeking condonation of delay contending that the judgment passed by the learned District Judge was ex parte and neither any notice was served nor any intimation was communicated to him through any source regarding preference of appeal. Further submitted that newspaper, daily "JURRAT" in which proclamation for appearance of petitioner was issued got no circulation and as such the petitioner who is practicing advocate at Lahore could not get any knowledge regarding the pendency of the appeal. It was further submitted that factum of judgment of learned District Judge came to the notice of the petitioner a week ago.
6. Rule of law expounded in the Report "CITY DISTRICT GOVERNMENT, LAHORE" (2006 SCMR 676) envisages that provisions of Section 5 of Act IX of 1908 are not applicable to the proceedings under Section 115 of The Code. Matter came up for adjudication before a learned Full Bench of the Apex Court in the case of "HAFEEZ AHMAD and others v CIVIL JUDGE, LAHORE and others" (PLD 2012 SC 400) and it was held that if the revisional court reaches to the conclusion that the order/judgment passedth by the subordinate court is the result of exercise of jurisdiction illegally or material irregularity, then while ignoring the question of limitation, revisional court can deal with the matter while exercising Suo-Motu powers. Matter was dealt with in paragraph 17 of the judgment which reads as follow: "17. Now question arises whether suo motu jurisdiction under section 115 of the Code could be exercised by the High Court or the District Court in a case where a revision petition has been led after the period of limitation prescribed therefor. The answer to this question depends on the discretion of the Court because exercise of revisional jurisdiction in any form is discretionary. Such Court may exercise suo motu jurisdiction if the conditions for its exercise are satised. It is never robbed of its suo motu jurisdiction simply because the petition invoking such jurisdiction is led beyond the period prescribed therefor. Such petition, could be treated as an information even if it suers from procedural lapses or loopholes. Revisional jurisdiction is a pre-eminently corrective and supervisory, therefore, there is absolutely no harm if the Court seized of a revision petition, exercises its suo motu jurisdiction to correct the errors of the jurisdiction committed by a subordinate court. This is what can be gathered from the language used in Section 115 of the Code and this is what was intended by the legislature, legislating it.
If this jurisdiction is allowed to go into the spiral of technicalities and fetters of limitation, the purpose behind conferring it on the Court shall not only be defeated but the words providing therefor, would be reduced to dead letters. It is too known to be reiterated that the proper place of procedure is to provide stepping stones and not stumbling blocks in the way of administration of justice. Since the proceedings before a revisional Court is proceeding between the Court and Court, for ensuring strict adherence to law and safe administration of justice, exercise of suo motu jurisdiction may not be conveniently avoided or overlooked altogether. The Court exercising such jurisdiction would fail in its duty if it finds an illegality or material irregularity in the judgment of a subordinate Court and yet dismisses it on technical grounds." (underling is mine)
7. Learned counsel for the respondents has relied upon the dictum laid down in "PROVINCE OF PUNJAB" (2014 SCMR 1358) in which similar proposition was examined by the Honourable Supreme Court of Pakistan and it was concluded that where an aggrieved party seeks redressel against the judgment or order through the revisional power of the court under Section 115 of The Code it had 90 days to make such application failing which the application is liable to be dismissed being barred by time.
8. It is to be noted that the rule of law was expounded in the "PROVINCE OF PUNJAB"
(2014 SCMR 1358) by three honourable judges of the Supreme Court while Ratio enunciated in "HAFEEZ AHMAD" (PLD 2012 SC 400) was made by ve honourable judges of the Supreme Court.
9. Rule of law relied upon by the learned counsel for the respondents "PROVINCE OF PUNJAB" (2014 SCMR 1358) is latter in time but the question for consideration before this Court is which judgment of the Apex Court has to be given preference.
10. Matter was examined by the Honourable Supreme Court in "HASSAN and others v THE STATE and others" (PLD 2013 SC 793) and it was held at page 819 as follow: "In such a situation usually the view expressed by a Bench of greater numerical strength is to be followed even if its view was expressed prior in time to a dierent view expressed by a Bench of smaller numerical strength at some subsequent stage."
11. Pursuant to above settled proposition of law matter can be examined by this Court in view of the dictum laid down in the case of "HAFEEZ AHMAD" (PLD 2012 SC 400) which was enunciated by ve honorable judges of the Apex Court. In view of the matter, question of limitation becomes immaterial. However, interference by this Court while exercising suo motu powers can only be made if the case falls within the ambit of Section 115 of The Code.
12. The respondents called in question the legality of the order dated 12th May, 2015. The learned trial court in the order reached to the conclusion that Province of the Punjab, Tehsildar and Halqa Patwari are not necessary party and as such their names were deleted from the array of defendants. As referred earlier, the respondents called in question the legality and validity of order dated 12.05.2015 in its totality and as such rst question for consideration before this Court is whether appeal was competent against the order to the extent of deleting the names of Province of Punjab, Tehsildar and Halqa Patwari. Well settled proposition of law cannot be questioned that right of appeal is creation of Statute and cannot be inferred unless and until provided by the Statute. Provisions of Order XLIII Rule 1 of The Code provides nature of order made under certain provisions of law which can be assailed by preferring an appeal.
Admittedly, the order regarding the striking o the names of Province of Punjab and two others was made under Order I Rule 10 of The Code which does not fall within the ambit of Order XLIII rule 1 of The Code and as such the learned District Judge should have taken into consideration this aspect that the appeal to the extent of deletion of names of Province of Punjab and two others was not maintainable. This aspect was totally ignored by the learned District Judge while entertaining the argument and issuing direction to the learned trial court to re-decide the matter. Appeal to the extent was not maintainable and as such order passed by learned District Judge issuing direction to the learned trial court to re-decide the question of proper and necessary parties is legally not sustainable and as such this Court has no option but to make interference while exercising suo motu revisional jurisdiction and order to the extent is hereby set aside.
13. Perusal of the order dated 12.05.2015 reveals that after hearing preliminary arguments on behalf of respondents No.1 and 2, the learned trial court issued ad-interim temporary injunction which reads as follow: "Relying upon the adavit and other documents available on the record, subject to notice, status quo be maintained with regard to the possession of the suit property, subject to all just and legal exceptions till next date of hearing. This order will not eect any order of other court or proceedings of any department". The learned District Judge while dealing with this aspect though did not make comments upon the ad-interim temporary injunction but while disposing the appeal issued direction to maintain status quo in respect of possession of the property.
14. Grievance of the petitioner as canvassed by learned counsel for the petitioner that in view of grant of status quo order proceedings before the revenue court stands suspended. As referred earlier, through order dated 12.05.2015 ad-interim temporary injunction was granted reproduced above and as such the direction should have been issued by the learned District Judge to the learned trial court to decide the application expeditiously without making any interference in the order.
15. Since the application for grant of temporary injunction is s till pending before the learned Civil Court, therefore, this Court while exercising the revisional jurisdiction cannot make any comment upon the issuance of ad-interim temporary injunction as well as status quo order issued by the learned District Judge in the judgment assailed.
16. Propriety demands that the application for grant of temporary injunction be decided expeditiously and as such the learned trial court is directed to decide the application for grant of temporary injunction led by the respondents in the suit for perpetual injunction within a period of ten days from the next date of hearing.
17. The suit is pending before the Court of Mr. Imran Safdar Chadhar, learned Civil Judge 1st Class, Bhakkar. As the order is being announced in the presence of learned counsel for the parties, therefore, they shall direct the parties to appear before the said learned Civil Court at Bhakkar on 08.06.2016. As directed earlier, the learned trial court shall decide the application for grant of temporary injunction within a period of ten days from the said date without giving undue premium to the adversaries seeking adjournment.
18. It will be well within the domain of Additional Commissioner (Revenue) to proceed with the appeal led by respondents No.1 and 2 in the light of the remand order made by the learned Member Board of Revenue through order dated 25.02.2015.
19. The revision petition in the stated terms stands disposed of but without any order as to costs.
20. Copy of the order be sent through fax to the learned District Judge, Bhakkar, today for onward transmission to the court concerned for information and compliance.