WAQAR AHMAD SETH, J:- Khalid Khan son of Alam Khan, petitioner herein, through the instant constitutional petition, has impugned the order dated 4.5.2017 of learned Additional District Judge-II, Nowshera and prayed that the same be set aside and that of order dated 22.10.2016 of learned Civil Judge-II, Nowshera be restored in toto with direction to the learned trial Court to decide the question of confirmation/rejection of the report of local commissioner in accordance with law .
2. In essence, case of the petitioner is that he filed a suit for perpetual injunction against respondents No. 1 & 2 in respect of property situated at Khasra Nos. 552 and 553 of Mauza Dheri Kati Khel, Tehsil & District Nowshera on the ground that he is owner-in-possession of the same while respondents are strangers and trying to forcibly take its possession and raise construction over it; thus, he prayed that respondents No. 1 & 2 may be restrained from interference and raising construction in the disputed property . Along with the suit, he also filed application for interim relief. On appearance, the respo ndents contested the suit by filing written statement. The learned trial Court, after hearing arguments on the application of Interim Relief, confirmed the status quo order vide order dated 11.6.2016. Respondents No. 1 & 2, inspite of issuance of temporary injunction order , raising construction, which compelled the petitioner to file an application under Order-39 Rule-2 C.P.C. before the learned trial Court for attachment of disputed property , who vide order dated 22.10.2016, issued an order of its attachment. Feeling aggrieved from the above said order , respondents No. 1 & 2 filed revision petition before the learned District Judge, Nowshera, which was entrusted to learned Additional District Judge-II, Nowsher a, for disposal, who vide order dated 4.5.2017, accepted the same and set aside the order of learned trial Court to the extent of attachment of property in khasra No. 551; hence, the instant W rit Petition.
3. Arguments heard and record perused.
4. Indeed, the contents of application of the petitioner before the trial court for attachment of suit property reflects that the same was filed under, non other than Order-39 Rule-2 subrule-3 of CPC, even the learned counsel for respondents could not justify anything else. The said application is always filed and entertained, in case of disobedience or breach of any such terms, the court while granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also ordered such person to be detained in the prison for a term not exceeding six months, unless in the meantime the court directs his release. In the instant case, temporary injunction was granted in favour of the petitioner / plaintiff on 11.6.2016, but the respondents / defendant continued their construction claiming that they are raising the same in khasra No. 551 and not in khasra No. 552 and 553 and the same has got no concern with the suit khasra. Vide order dated 17.6.2016, respondents were restrained from any sort of activities in all the three khasras i.e 551, 552 & 553, in order to avoid the apprehended bloodshed, law and order situation, but the situation remain the same.
5. Any order passed, while entertaining the application under Order-39 Rule-2 subrule-3 of CPC is an appealable order. In this respect, Order-43 Rule-1 (r) is very much relevant, but respondents / defendants filed a revision petition which was not competent at the very outset. In this respect reliance is placed on 2000 SCMR- 460 (b) Saleem ud Din and another versus Municipal Committee, Tando Allahvar through Administrator and 5 others, wherein it has been held that:- "--Ss. 104 & 106, O. XXXIX, Rr. 1, 2, 3 & O. XLIII, R.1 (r)---Constitution of Pakistan (1973), Arts. 185 & 175-- Appeal to Supreme Court---Competence-- Punishment for violation of order passed by High Court for maintenance of status quo with order that accused be detained in prison for a term of six months until they demolished the unauthorized construction themselves and pay compensation to the tenants, if any--- Supreme Court was vested with the jurisdiction to entertain and hear appeals provided under any law.
Section 104, CPC read with Order XLIII, Rule 1 (r), CPC provides that appeal lies against such an order and by virtue or section 106, the same would lie before the Court where the appeal in case of decree of the Court passing the order would be competent, as such the appeal before Supreme Court is maintainable against the order of High Court against the punishment awarded to accused who had violated status quo ordered by the High Court."
6. In view of the above circumstances and clear cut position, the revision of the respondents was not maintainable as no revision lies where an appeal lies and for conversion of such revision into an appeal, could only be make possible when there is specific application required for such purpose. Admittedly , there was no such application moved by the respondents. The plea of the respondents that it was the duty and requirement of the appellate / revisional court to have converted the revision into appeal, is also not legal because for the purpose of filing appeal, against any interlocutory order , a notice under Order-43 Rule-3 of CPC is mandatory , which too was not given by the respondents. In this respect reliance is placed on PLD-1983 Supreme Court-693, titled Mrs. Dino Manekji Chinoy and 8 others versus Muhammad Matin, (c), which reads as under:- "--O. XLIII, r. 3--Appeal against any order made during pendency of suit--Notice of such appeal to respondent mandatory---Appellant required to submit, alongwith other documents required for filing appeal, affidavit that he has given notice of such appeal to respondent or his advocate by delivering him copy of memorandum and grounds of appeal alongwith copy of order appealed against and shall also attach with said affidavit copy of acknowledgment obtained from respondent or his advocate--Appeal not accompanied by such affidavit and copy of acknowledgment receipt, not entertain able."
Similarly, in the case of Messrs heavy Electrical Complex through Deputy General Manager, (A&P) Hattar Industrial Estate, Hattar versus Sarhad Development Authority, NWFP Kot Najibullah, Hattar, Haripur, reported in 1999- CLC-790, wherein it was held that:- "--O. XLIII, R. 3---Appeal without prior notice--Maintainability--Use of word `shall' in R. 3,O. XLIII, CPC clearly indicated the intention of Legislature that compliance of the same was mandatory---Non compliance of a prerequisite mandatory requirement would take away the right of appeal--Order XLIII, R. 3, CPC had provided a right to the party in whose favour an interlocutor order was passed, to defend the same in appeal---Aggrieved appellant was refrained from taking any benefit of one sided presentation of submission to undo an interlocutory order--Appeal was not maintainable in circumstances and same was dismissed accordingly.
7. In view of the above it is safely held that the learned Additional District Judge-III Nowshera, wrongly entertained Civil Revision No.2/14 of 2017 and as such liable to be set aside.
8. In addition to the above, record furthe r suggests that the demarcation through local commission is yet to be finalized and the report is yet to be considered by the learned trial Court, therefore, I am of the view that the learned trial Court is the perfect court to pass an appropriate order after going through the local commission report and if any objections, so filed by the parties.
9. For the reasons recorded hereinabove while allowing this writ petition the impugned order / judgment dated 4.5.2017 passed by Additional District Judge-III, Nowshera is declared as illegal, without jurisdiction and premature, hence set aside. The order of the Civil Judge-II Nowshera dated 22.10.2016 is restored with the direction to the parties to appear before said trial Court.