KH MUHAMMAD SAEED, A.C J. - This litigation is the out come of the suit filed by respondent Abdur Rashid for perpetual injunction in the Court of Sub Judge Mirpur of August 22, 1993 contending therein that he was owner-in-possession of the land measuring 2 kanals and 7 marlas comprising old survey No.1468 (new) 1222 of village Rathowa Muhammad Ali, Tehsil Mirpur. He prayed that defendant-petitioners may be restrained from interfering in his possession or raising any boundary wall or from constructing any house over the suit land.
2. In this case written statement was filed by the defendant- petitioners on November, 21, 1993 wherein it was contended by them that they have p purchased land measuring 3 kanals 18 marlas and 5 Sersaies out of old survey No.1467, total measuring 5 kanals and 6 marlas. It was further contended by them that they have constructed their houses and boundary wall in this land. It was further pleaded that after filing of the suit by the plaintiff-respondent, on the intervention of the notables of the locality, the defendant-petitioners have demolished their boundary wall.
3. After sometime, an application was moved on behalf of the plaintiff for the appointment of the Commission. This application was placed on record by the trial Court without passing any order on it.
4. The plaintiff-respondent produced his evidence whereas no evidence was produced on behalf of the defendant-petitioners. After conclusion of the trial, the suit of the plaintiff-respondent was dismissed by the Sub Judge on September 20,1394 by holding that he was not in possession of the land in dispute. Abdur Rashid, plaintiff-respondent, in the meantime moved an application for the initiation of the proceedings under Section 145 Cr.P.C, before the Court of Sub Divisional Magistrate in respect of the suit land. The defendant-petitioners moved a petition before this Court under Section 561-A C^JP.C. For the quashment of the proceedings initiated under Section 145 Cr.P.C, against them. On October 22, 1994, the learned Counsel appearing for the plaintiff-respondent made a statement at the bar before this Court that his client has decided not to continue the proceedings" before the Sub Divisional Magistrate. He also submitted that his client has already moved an application before the trial Magistrate for the dismissal of his application under Section 145 Cr.P.C. On account of this statement, the petition moved by the defendant-petitioners before this Court, was dismissed.
5. The plaintiff-respondent thereafter filed an appeal before the learned District Judge Mirpur, against the judgment and decree of the Sub Judge. During the pendency of the appeal, an application was moved on March 28,1995 for the amendment of the suit and alternatively in para-3 of the same, a request was made that the plaintiff be .Allowed to file fresh suit after returning him the previously filed suit. On this application, objections were invited which were accordingly filed on April, 25, 1995. There is another application at page-16 of the file, whereby request incorporated in x para-3 of the previous application, was repeated. On this application no date is mentioned. Even the stamp duty has not been paid. The learned Presiding Officer has filed this application but has not mentioned any date.
6. With the help of the learned Counsel for the parties, I have gone through the interim orders. The presentation of this application is not mentioned in any interim order, neither it is proved that objections were invited but the same were not filed by the present petitioners. This is the ground which was given importance by the learned District Judge when he ordered that original plaint be given back to the plaintiff for filing fresh suit. The learned District Judge appears to have assumed a wrong fact which resulted in passing the order under challenge.
7. The defendant-petitioners have filed appeal before this Court against the order passed by the learned District Judge Mirpur which is no maintainable. In view of the peculiar facts of this case and in order to meet the ends of justice, this appeal is treated as a revision petition. The order passed on wrong assumption of fact, is set aside. I am constrain to remand this case to the First Appellate Court with the direction that it shall invite objections from the defendant-petitioners and decide the application of the plaintiff-respondent under Order 23 C.P.C, afresh in accordance with law.