' SHAHID WAHEED, J.---This petition has been filed with a prayer to set aside orders dated 03.02.2009 and 25.11.2010 of the learned Trial Court; and order dated 21.12.2010 of the learned Additional District <>iJudge, Gujrat, with a direction to the learned Trial Court, Gujrat, to proceed to record evidence of the parties and to decide the matter in accordance with law.
2. This petition has arisen in the background that on 19.03.2005 the respondents Nos.1 and 2 instituted a suit for permanent injunction so as to restrain the present petitioners from interfering in their possession and to raise illegal construction over the suit property. The present petitioners contested the suit by filing a written statement. However, on 04.04.2005 the Executive Engineer, Highway, District Gujrat/petitioner No.3 appeared before the learned Trial Court and got recorded his statement to the effect that save legally acquiring the land neither any interference in the possession of respondents Nos.1 and 2 would be made nor any construction would be raised over the suit property. On the basis of said statement the learned Trial Court vide order dated 04.04.2005 disposed of the suit. The said order reads as under--{{URDU TEXT}}
3. After a lapse of one month, that is, on 25.05.2005 the respondents Nos.1 and 2 filed an application under Order XXI, Rule 32, C.P.C. For initiating appropriate proceedings against the present petitioners. It was asserted in the said application that the present petitioners had violated the undertaking recorded in the order dated 04.04.2005. The petitioners resisted the said application by filing reply. In view of divergent stances of the parties the learned Trial Court vide order dated 06.02.2006 framed following issues and directed the parties to adduce evidence in support of their respective claims.
1. Whether this application is false frivolous and liable to be dismissed? OPR
2. Whether the contempt has been committed by respondents as respondents have acted with consent of petitioners? OPR 3 . Whether respondents have violated the order of Court dated 4.4.05? If so, its effect? OPA
4. Whether application is liable to be accepted as prayed for? OPA
5. Relief.
4. During the course of recording evidence the learned Trial Court vide order dated 03.02.2009 directed the petitioners to issue a cheque of Rs.3,066,000/- in favour of respondents Nos.1 and 2.
The order dated 03.02.3009 reads as under:--{{URDU TEXT}}
5. The petitioners did not comply with the order dated 03.02.2009 and resultantly the learned Trial Court vide order dated 25.11:2010 issued a show cause notice to the petitioners requiring them to pay above said amount without further loss of time otherwise to explain as to why the said amount be not recovered through process of law as provided under Order XXXIX, Rule 2, C.P.C. The petitioners assailed the said order through a revision petition before the learned Additional District Judge, Gujrat. This revision petition was dismissed vide order dated 21.12.2010. Hence, this petition.
5.(sic) Learned Additional Advocate General submits that the impugned orders are illegal and void ab initio; that the proceedings under Order XXI, Rule 32, C.P.C. Could be initiated only where the parties against whom a decree had been passed whereas in the present case no such decree against the petitioners was passed and in fact the petitioner No.3 had made a statement and on the said statement the suit was disposed of; and, that the learned Trial Court without recording evidence could not pass the impugned order. On the other hand, learned counsel for respondents Nos.1 and 2 have vehemently opposed this petition. It is contended that the present petitioners in their written statement had admitted the claim of the respondents Nos.1 and 2 and, thus, they could not be allowed to wriggle out the admission/ undertaking.
6. I have heard the learned counsel for the parties and perused the record. It is an admitted fact that the suit for permanent injunction of respondents Nos.1 and 2 was disposed of by the learned Trial Court vide order dated 04.04.2005, reproduced hereinabove, on the statement of petitioner No.3. The respondents Nos.1 and 2 filed an application under Order XXI, Rule 32, C.P.C. With the plea that the present petitioners had violated the order dated 04.04.2005. The assertions made in the application were traversed by the present petitioners. The divergent stances of the parties led the learned Trial Court to frame issues. The learned Trial Court, without returning findings qua the issues framed by it, could neither direct the petitioners to pay any amount to respondents Nos.1 and 2 nor initiate any proceedings under Order XXXIX Rule 2, C.P.C. For recovery of any amount. It is thus clear that the learned Trial Court while passing the orders dated 03.02.2009 and 25.11.2010 acted in exercise of its jurisdiction illegally and with material irregularity. This fact was also not properly appreciated by the learned Revisional Court and, thus, it also fell into error while passing the impugned order dated 21.12.2010.
7. In the sequel this petition is accepted, orders dated 03.02.2009 and 25.11.2010 of the learned Trial Court and the order dated 21.12.2010 of the learned Additional District Judge, Gujrat are set aside and declared to have been passed without lawful authority and of no legal effect. Resultantly the learned Trial Court is directed to decide the application of the respondents Nos.1 and 2 under Order XXI, Rule 32, C.P.C. After recording complete evidence and 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.