HAIDER ALI KHAN, J.---Through this single judgment we intend to decide the instant quashment petition as well as the connected W.P. No, 612-M/ 2015 as both the petitions arise from judgment dated 22.10.2015 of the learned Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Dargai whereby the revision petition preferred by the petitioner was dismissed and the order dated 27.7.2015 of the Assistant Commissioner, Dargai, was maintained.
2. Precise and relevant facts of the case are that initially the petitioner moved an application to Assistant Commissioner, Dargai, for taking legal action against the Respondent No,2. As per averments in the application, the petitioner along with his other family members had gone to the house of his maternal grandfather situated at Kharki Dherai and on return to their house, which is the subject-matter of the present controversy, the Respondent No,2 did not allow them to enter their house rather he locked the doors and hindered their access to the house. The Assistant Commissioner referred the application to the Post Commander concerned for inquiry who submitted his report after doing the needful and pursuant thereto application of the petitioner was allowed by the Assistant Commissioner vide order dated 04.6.2014. Resultantly, the Post Commander, Sakha Kot, was directed to remove the locks from the doors of the disputed house and hand over the same in possession of the petitioner. The above said order was challenged by the Respondent No,2 through revision petition which was accepted by the learned Additional Sessions Judge vide judgment dated 22.7.2014 and possession of the disputed house was handed over to the Respondent No,2. Being aggrieved, the petitioner approached this Court by way of quashment petition challenging the judgment of the learned Additional Sessions Judge which was dismissed by this Court on 29.9.2014, It is pertinent to mention here that prior to the disposal of the quashment petition by this Court, on 26.7.2014 Respondent No,3 namely Muhammad Amin had already filed a declaratory suit against the petitioner and Respondent No,2 in Civil Court Batkhela.
During pendency of that suit, the Respondent No,2 submitted an application to Assistant Commissioner, Dargai, for possession of the disputed house which was accepted vide order dated 27.7.2015 and the Post Commander concerned was directed to hand over possession of the disputed house to him. Being aggrieved, the petitioner as well as the Respondent No, 3, whose suit is still pending in Civil Court, preferred separate revision petitions which were dismissed by the learned Additional Sessions Judge through consolidated judgment dated 22.10.2015 which has been challenged by the petitioner through this quashment petition whereas the Respondent No,3 has filed the connected W. P. No, 612-M/2015 there against which are being disposed of through this single judgment.
3. We have heard learned counsel for the parties and perused the available record in light of their valuable assistance.
4. Perusal of the record would reveal that in the first round of the present litigation, application of the petitioner was dismissed by the learned revisional Court mainly on the point of jurisdiction. It would be appropriate to reproduce here the relevant portion of the first judgment dated 22.7.2014 of the learned revisional Court. {{URDU TEXT}} The above findings contained in the judgment of the learned revisional Court clearly show that mainly legal aspect of the matter has been 'discussed and it was held that the Assistant Commissioner while entertaining the application of the petitioner has acted beyond his jurisdiction, hence, his initial order dated 04.6.2014 was declared as illegal. This order of the revisional Court was challenged by the petitioner through quashment petition No, 50/2014 and this Court vide judgment dated 29.9.2014 highlighted the procedure under Section 145, Cr.P.C. and maintained the above referred findings of the learned revisional Court as warranted by the circumstances of the case at the relevant time. The main crux of the afore mentioned two judgments rendered by the learned revisional Court as well as this Court was that the Assistant Commissioner has got no jurisdiction in the matter and the best way for the parties would be to resort to Civil Court for establishment of their rights.
At the completion of the first round of application submitted by the petitioner Shahab Ali, the Respondent No,2 on his turn submitted application to Assistant Commissioner, Dargai, almost of the same nature already submitted by the petitioner. The application of the Respondent No,2 was entertained by the Assistant Commissioner and he disposed of the same vide order dated 27.7.2015 in the following terms.
"As dictated by the judgments of the Hon'ble Sessions Judge, the possession may be handed over to the revisioner".
This order was challenged by the petitioner and the Respondent No,3 through their respective revision petitions which were dismissed by the learned revisional Court through single judgment dated 22.10.2015, the operative para whereof is reproduced herein below for the sake of convenience:-- {{URDU TEXT}} As dictated by the judgments of the Hon'ble Sessions Judge, the possession may be handed over to the revisioner. {{URDU TEXT}} The above observations of the learned revisional Court reveal that the legal aspect of the matter in the second round was totally ignored and reliance was placed on the findings of predecessor-in office formerly recorded vide judgment dated 22.7.2014 in the first round. Record shows that the nature of the applications separately moved by the petitioner and Respondent No,2 was similar which have been entertained by the Assistant Commissioner at the relevant times. When the order was passed by the Assistant Commissioner on the petitioner's application the learned revisional Court declared the same without jurisdiction and illegal, hence, set it aside but when the Assistant Commissioner passed the order on the application of the Respondent No,2, the same was maintained by the revisional Court. The points relating to jurisdiction of the Assistant Commissioner in the matter and applicability of Section 145, Cr.P.C. as well as provisions of the Illegal Dispossession Act, 2005 were amply discussed by the learned revisional Court qua the application of the petitioner but astonishingly the same criteria was not adopted at the time of deciding the similar application filed by the Respondent No,2 and he was granted the relief which had already been denied to the petitioner, if the former judgment of the revisional Court be considered as a touch stone for its subsequent judgment then order of the Assistant Commissioner on the application of the Respondent No,2, having the same legal status, should have also been set aside by the learned revisional Court. We are unable to understand that when the revisional Court set aside the former order passed by the Assistant Commissioner for want of jurisdiction, how can his subsequent order of the same nature passed regarding the same subject matter can be considered as legal and within his jurisdiction. To explain our view in more explicit terms, the former order of the Assistant Commissioner in the case of the petitioner was declared illegal but his subsequent order of the same nature in the case of Respondent No,2 was considered as legal.
Obviously, the above said different views recorded by the same revisional Court are conflicting in respect of the same law point, hence show double standard. Thus, it has become abundantly clear that the learned revisional Court has not applied its judicious mind to the matter and erred while deciding similar applications filed by the petitioner and Respondent No,2 in altogether different manner.
5. Another important aspect of the case is that the Civil Court has seized of the matter as the Respondent No,3 has filed a civil suit in respect of the house in dispute. It is an admitted fact that the Respondent No,2 has filed application for possession of the disputed house before the Court of Assistant Commissioner who has got no jurisdiction in the matter in view of the suit filed by the Respondent No,3 against the petitioner and Respondent No,2 along with other defendants. The Civil Court has ample powers to entertain applications of the same nature and the Assistant.
Commissioner has no authority to issue orders in respect of the property which is the subject matter of a civil suit pending before the Court of competent jurisdiction. There is no mention of any provision of law under which the Respondent No,2 moved his application. Record shows that on this very ground the earlier application of the petitioner had been dismissed but in case of Respondent No,2 the learned revisional Court has ignored this crucial point at all despite the fact that a civil suit was already pending in the Civil Court. It has been repeatedly held by the Superior Courts that when there is apprehension of breach of peace the Judicial Magistrate is empowered to proceed in accordance with Section 145, Cr.P.C. regarding the subject matter of dispute whereas the proper course for the parties would be that to resort to the Civil Court. When the Civil Court once seized of the matter then the Judicial Magistrate is not competent to pass any interim order regarding subject matter of the civil suit. In the present case when a proper suit is pending adjudication before the competent Civil Court wherein the Respondent No,3 (plaintiff) has moved an application for temporary injunction, therefore, the order passed by the Assistant Commissioner was illegal.
The august Supreme in a judgment delivered in a case of the like nature reported as 1971 SCM R 581 observed that:- "It appears to us that as the disputes between the parties are subject-matter of civil suits and ad interim injunctions and status quo orders have been passed against the respondents in these suits the criminal Court was not competent to interfere with the possession of the appellants in respect of the property in dispute. On the view taken by this Court in the above-mentioned case, the order of the criminal Court was without jurisdiction. It was illegal and therefore, is liable to be set aside".
Similar view was taken by the august Supreme Court (AJ&K) in its judgment published as 1997 MLD 2015 and there are numerous other judgments of the High Court's wherein it has been held that Civil Court alone is competent to determine questions of title and right to possession of immovable property and jurisdiction of magistrate is ousted in this regard. In light of the above, it is held that order of the Magistrate is illegal and without jurisdiction, therefore, the same is not legally sustainable. Similarly, the learned revisional Court has committed an illegality while maintaining the order of Assistant Commissioner which was illegal and without jurisdiction.
6. It is also observed that the Respondent No,3 has categorically stated that he had purchased the house in dispute from Fazal Rahim (father of the petitioner and defendant No,3 in the suit) who is now living in the same house as tenant on paying rent of Rs,3000/- per month. This fact has also been admitted by the Respondent No,2 in his written statement to the suit and at the end of Para-6 of preliminary objections he has stated that:-- {{URDU TEXT}} The learned revisional Court was well aware of the fact that the Respondent No,3 has filed a suit in respect of the disputed house wherein the petitioner was mentioned as tenant and so was the statement of the Respondent No,2 in his written statement but while deciding the fact of possession, the learned revisional Court totally ignored these facts and held that possession of the disputed house was previously with Respondent No,2, hence, the findings of the learned revisional Court in respect of possession of the disputed house are not correct being contrary to the record.
7. Therefore, the instant quashment petition is allowed and the impugned orders/judgments dated 27.7.2015 and 22.10.2015 passed by the Assistant Commissioner and Additional Sessions Judge, Dargai, respectively are set aside. Similarly, C.M No, 220-M/2015 is dismissed for having become infructuous.
8. Now coming to the connected writ petition i,e, W.P. No, 612-M/2012 by the respondent No,3. Record shows that the Respondent No,2 had filed his application for possession of the disputed house against the petitioner Shahab Ali only and the Respondent No,3 (petitioner in the writ petition) was not a party thereto. As discussed earlier, the Respondent No,3 has filed a civil suit besides an application for temporary injunction has also been moved, therefore, he may seek his remedy in accordance with law from the Civil Court being competent in this regard who has already taken cognizance of the case. As the orders impugned in the writ petitions have already been set aside by allowing the connected quashment petition, therefore, the W.P. No, 612-M/2015 along with C.M.
No, 921-M/ 2015 have become infructuous, hence, dismissed as such.