MUNIR A.SHEIKH, J.- This judgment will also dispose of Civil Revision No.1104 of 1981 as common questions of law and facts are involved and as both of them have been filed against different orders passed by the learned trial Court in the suit filed by respondents No.1 to 13.
2. The facts giving rise to this Constitutional petition and the connected revision petition as given by the learned counsel for the petitioner shortly stated are that land measuring 39 kanals 19 marlas was purchased by respondents No.1 to 13 from its previous owners on 15.5.1978. The case of the petitioner is that he was tenant under the previous owners. On 19.5.1978 respondent No.1 lodged Paish Bandi report with Police Station Baghbanpura, Lahore, alleging that the previous owners of the said land had taken possession from the petitioner after payment of compensation and the same was delivered to the purchasers and the present petitioner was trying to forcibly take back the possession of the land. On 20.5.1978 respondents No.1 to 13 filed a suit for permanent injunction against the petitioner praying for a decree to restrain the petitioner from interfering or disturbing their possession over the suit land. Alongwith the suit an application for issuance of temporary injunction was also made on which an order was passed by the learned trial Court for maintenance of Status quo. It is the case of the petitioner that after obtaining the said order for maintenance of Status quo the said respondents/plaintiffs forcibly dispossessed the petitioner from the land in dispute and the crops of the petitioner standing thereon were distroyed with the Tractors. The petitioner lodged FIR No.255 of 1978 against the said respondents under sections 447/336/148/149 PPC. The petitioner also filed an application under MLR 115 before the Assistant Collector Grade-I complaining that he was forcibly dispossessed from the said land. Another application was also moved by the petitioner under the said Martial Law Regulation relating to another piece of land measuring 9 kanals 11 marlas complaining that he was also forcibly dispossessed therefrom. The Assistant Collector Grade-I through order dated 25.10.1979 accepted both the applications and directed that the possession of the suit lands be restored to the petitioner. Respondent No.1 feeling aggrieved by the said order challangrd the same by filing appeal before the D.C/Collector, Lahore which was dismissed through order dated 1.12.1980. The order for maintenance of Status quo passed by the learned trial Court on the application of respondents No.1 to 13 made in the suit was confirmed by the said Court against which appeal was filed by the petitioner before the learned lower appellate Court was dismissed on 5.4.1980. The petitioner did not agitate the matter further as he had initiated the legal proceedings for obtaining the possession under MLR 115 in which an order for restoration of possession had been passed.
3. Respondents No.1,6 and 7 filed Writ Petition NoJ287 of 1979 in this Court challenging the legality of proceedings pending before the Assistant Collector lst Grade under MLR 115 initiated by the petitioner which was dismissed in limine on 30.7.1979. Learned counsel argued that it was held by this Court that the Assistant Collector 1st Grade had the jurisdiction to hear the petition filed by the petitioner for restoration of possession of land under MLR 115. The respondents No.1 to 13 filed a suit to challenge the validity of the order dated 25.10.1979 passed by the Assistant Collector1' 1st Grade through which restoration of possession of the suit land to the petitioner was ordered. This suit was dismissed on 28.9.1980 on the ground that the jurisdiction of the Civil Court was barred under Para 26 of MLR 115. According to the learned counsel for respondents No.1 to 13 the suit was not dismissed but the plaint was rejected under Order VII Rule 11 CPC on the said ground. Respondents No.1 to 13 filed another suit in which they challenged order dated 1.12.1980 passed by the DC/Collector dismissing their appeal against the order dated 25.10.1979 passed by the Assistant Collector 1st Grade which was withdrawn by them on 17.12.1980. On the other hand the petitioner also filed a suit under Section 9 of the Specific Relief Act, for restoration of possession of the land alleging that he was dispossessed otherwise than in due course of law which was also dismissed on the ground that the Civil Court had no jurisdiction to restore possession if a tenant was illegally dis-possessed and the remedy of such tenant was to seek redress of his grievances under the special procedure as laid down in MLR 115.
4. After having failed in their attempts to get order dated 25.10.1979 passed by the Assistant Collector 1st Grade and the DC/Collector dated 1.12.1980 passed in appeal set aside, respondents No.1 to 13 on 18.12.1980 made an application in the suit from which this writ petition has arisen for permission to amend the plaint so as to challenge the validity of the said two orders as also to include the other piece of land measuring 9 kanals 11 marlas in the suit as the suit originally filed related to land measuring 39 kanals 9 marlas. They also made another application on 3.12.1980 seeking a temporary injunction during the pendency of the suit against implementation of the said orders passed by the revenue officers for restoration of possession of land to the petitioner. The learned trial Court through order dated 21.2.1981 accepted both the applications. Respondents N.1 to 13 were allowed to amend the plaint as prayed for and also passed an order in the form of temporary injunction against restoration of possession of the land to the petitioner. The petitioner feeling aggrieved filed appeal against the order regarding acceptance of application for temporary injunction before the learned lower appellate Court whereas the part of the order regarding acceptance of application for amendment of the plaint was challenged by filing a revision petition. The learned lower appellate Court through order dated 22.7.81 dismissed both the revision petitions as also the appeal maintaining the order of the learned trial Court.
5. This writ petition (W.P.No.3957/81) has been filed to challenged the validity of orders of both the Courts below regarding acceptance of application of respondents No.1 to 13 for amendment of plaint and connected Civil Revision No.1104 of 1981 has been filed to challenge the issuance of temporary injunction against restoration of possession of both the pieces of land to the petitioner under the orders of the revenue officers.
6. I have heard learned counsel for both the parties. In reply to the application filed by respondents No.1 to 13 for amendment of plaint an objection was specifically taken therein that against the order of revenue officer dated 25.10.1979 the suit filed by the respondents was dismissed. It was also stated therein that the writ petition filed by respondents No.1,6 and 7 challenging the validity of proceedings initiated before the Assistant Collector 1st Grade under MLR 115 on the application of the petitioner was also dismissed by this Court. It appears that neither the learned trial Court nor the learned lower appellate Court while disposing of the said applications, appeal and the revision petition respectively took into consideration these objections and the legal effect of dismissal of the suit against the order dated 25.10.1979 passed by the Assistant Collector 1st Grade and withdrawal f the other suit filed by the respondents to challenge the order dated 1.12.1980 of the D.C/Collector passed in appeal as also the dismissal of writ petition filed by them challenging the validity of proceedings initiated under MLR 115. Learned counsel for respondents No.1 to 13 when questioned frankly conceded that this aspect of the case has not received consideration of the two Courts below while disposing of both the applications of the said respondents i.e. One for amendment of plaint and the other for issuance of temporary injunction. Since both the Courts below failed to take into consideration a material plea of fact, therefore, both the impugned orders passed by them are not sustainable. It was necessary tor the two courts below to have taken into consideration these facts before passing any order on both the applications of respondents No.1 to 13 because it was contended that the dismissal of the previous suit against the same order of Assistant Collector 1st Grade on ground that the Civil Court had no jurisdiction to entertain the suit against any order passed under MLR. 115 had material bearing upon the question of jurisdiction of the Civil Court to pass any order for allowing the respondents to amend the plaint to include a plea as a ground to challenge the validity of the said orders.
7. For the foregoing reasons the impugned orders cannot be sustained. This writ petition and the connected Civil Revision No.1104 of 1981 are accepted. The order dated 21.2.1981 passed by the learned trial Court and the order dated 22.7.1981 passed by the learned lower appellate Court so far as they relate to the disposal of two application of respondents No.1 to 13, one for seeking amendment of the plaint and the other praying for issuance of temporary injunction against delivery of possession of land to the petitioner in implementation of the orders passed by the revenue officers are hereby declared to have been passed without lawful authority and of no legal effect and quashed. In the result the said two applications shall be deemed to be pending before the learned trial Court which shall be disposed of in accordance with law. There will be no order as to costs.
8. The Court who passed the impugned to the learned counsel for the parties has been abolished.
The parties are directed to appear before the learned District Judge, Lahore, on 29.11.1990 who shall entrust the suit to any Civil Judge subordinate to him for disposal. Learned counsel for the petitioner requested that an order be passed for early disposal of the case by the learned trial Court. Learned counsel for the petitioner may press this prayer before the learned District Judge who will pass appropriate order in this respect.