SHAKEEL AHMAD, J.---Through this constitutional petition, the petitioner has called in question the order dated 18.10.2016 of the learned Additional Sessions Judge-II, Peshawar. His prayer in the writ petition is re-produced below:-- "I. Declaring the complaint filed by respondent No,1, under sections 3, 4 and 6 of the Illegal Dispossession Act and the proceedings initiated by respondent No,3 to be mala fide, null and void and of no legal effect, be quashed accordingly and in consequence thereof the order dated 18.10.2016 of respondent No,3 be also set aside. Any other relief deemed appropriate and not specifically prayed for may also be granted",
2. The learned counsel for the petitioner submitted that he is aggrieved by the order dated 18.10.2016 of the learned Additional Sessions Judge-II, Peshawar, whereby the learned trial Court left the question of maintainability to be decided after recording pro and contra evidence and summoned the remaining respondents for 9.11.2016.
3. Relevant facts as narrated in this writ petition are that the respondent No,1 brought an application/complaint under sections 3, 4 and 6 of the Illegal Dispossession Act, 2005 against the petitioners contending therein that his father is owner in possession of a constructed house in Khasra No,4551/1 situate in Mauza Hazar Khawani, Tehsil and District Peshawar. It was alleged in the complaint that on 4.4.2016 at 4.00 p.m., the petitioner along with 5 to 6 persons, came to the spot, they were armed with deadly weapons, forcibly and illegally dragged out the inmates and luggage of the house in question and occupied the same illegally. On receipt of application, the learned Additional Sessions Judge-II, Peshawar took cognizance of the matter and issued summons to the petitioner for appearance before the Court.
Arguments heard and record perused.
4. Perusal of the order sheet dated 23.7.2016 reflects that the case was to be argued on maintainability of the application/complaint, but, the learned Trial Court vide impugned order dated 18.10.2016 instead of deciding the question of maintainability proceeded further. The learned counsel for the petitioner argued, that, earlier the father of the petitioner had filed similar complaint against the petitioner and his brothers, namely, Afzal Khan and Taza Khan, which was dismissed as withdrawn vide order dated 25.5.2016, unconditionally, where-after, the respondent No,1 filed the present complaint under sections 3, 4 and 6 of the Illegal Dispossession Act, 2005, adding therein, the names of Shakir, Dawood, Israr, Abid, Taimoor and Aqif. He further contended that the father of respondent No,1 has also instituted a suit for Declaration, possession through partition and permanent injunction in respect of the property in dispute, which is subjudice before the learned Civil Judge, Peshawar, in para-6 of the plaint, he has admitted that the property in question is in possession of the petitioner and his brothers and in the complaint, he has alleged that the respondent No,1 and other inmates of the house were illegally dispossessed by the petitioner.
5. Learned counsel appearing on behalf of the respondents vehemently opposed the contention of learned counsel for the petitioner and argued that filing of the suit in respect of the same subject matter does not create a bar to the action under Illegal Dispossession Act, 2005 the respondent can avail both the remedies and placed reliance on PLD 2008 Karachi 369, PLD 2008 Lahore 358 and 2007 PCr. LJ 1784.
6. This Court does not want to prejudice the proceedings by commenting upon the merit of the case, we deem it appropriate to set aside the impugned judgment/order dated 18.10.2016 and remand back the case with the direction to the learned Trial Court to decide the question of maintainability of the complaint first by applying his independent judicial mind and pass a speaking order in this respect.
7. For the reasons given herein above, this petition is disposed of. Order accordingly.