This is defendant No,4 Revision Petition which has been directed against judgment dated 17-11-1996 passed by the learned Additional District Judge, Lahore by which on acceptance of appeal and reversal of judgment and decree of the trial Court dated 30-5-1996, through which the suit of respondents Nos.1 and 2 for declaration that allotment of Government Quarter No,I-83, Wahdat Colony, Lahore in dispute in his favour (i,e, the present petitioner) was dismissed, has been decreed.
2. The quarter in dispute i,e, 1-83 which was earlier occupied as Government Servant by respondent No,2 who is father-in-law of respondent No,1 was allotted to the present petitioner by the Provincial Government on 205-1992 and possession delivered to him in pursuance thereof after vacation of the same by respondent No,2 on his retirement.
3. Respondent No,1 made application seeking allotment of the said quarter on the ground that he was putting up with his father-in-law respondent No,2 in the said quarter and after his retirement the same should be allotted to him. The present petitioner had also made an application for the allotment of a Government Quarter and the quarter in dispute was allotted to him against which respondents 1 and 2 filed Civil suit for declaration from which this revision petition has arisen.
4. The suit was contested by the present petitioner on a number of legal as well as factual grounds.
The controversies arising from the pleadings of the parties were reflected in the following issues framed by the learned trial Court:-- (1)Whether the suit is barred due to preliminary objections No,1 and 3 of written statement of defendant No,4 OPD. 4.
(2)Whether plaintiff has got no locus standi to bring this suit? OPD. 4.
(3)Whether the suit is barred under sections 56-B and 52-D of the Specific Relief Act? OPD, 1. 2.
(4)Whether the suit is not maintainable in its present form? OPD.
(5)Whether the plaintiff No,1 was not entitled to the quarter in question being an employee of Grade-5? OPD. 1, 2.
(6)Whether the allotment order made by the defendants 1, 2 in favour of defendant No,4 is illegal, void, based upon mala fide, discriminatory and is liable to be cancelled? OPP.
(7)If Issue No,6 is proved then whether the plaintiff is entitled for the allotment of said quarter as consequential relief? OPD (8)Relief.
5. After considering the evidence produced by the parties on these issues the trial Court under Issue No,1 held that the suit was barred as the previously two suits one of which was for permanent injunction in respect of the same matter and the other for declaration were dismissed in default and withdrawn respectively without permission to file fresh suit therefore, the present suit was not maintainable. On the basis of findings on these issues the suit was dismissed through judgment dated 30-5-1996.
6. Under Issue No,2 the trial Court held that the plaintiffs had locus standi to file the suit if they could succeed that the order of allotment made in favour of the present petitioner qua the quarter in dispute was not in accordance with law or suffered from mala fides. Under Issue No,3 it was held that the Government functionaries were required to act justly, fairly and treat both the applicants equally as such order of allotment made in favour of the present petitioner suffered from discrimination and was against law as both the applicants being civil servants in grade-5, one should not have been given preference over the other and application of respondent No,1 being earlier in time therefore the present petitioner could not be given preference over respondent No, 1.
Under Issue No,4 it was observed that the same was not pressed therefore it was decided in the negative. Issue No,5 and 6 were decided together and it was held that the order of allotment of the quarter in dispute in favour of the present petitioner was arbitrary and against the intention of law and void. Ujder Issue No,7 it was held that the allotment of Government residence was not a vested right of a Government employee but the Government officers were bound to adhere to law and decide the matters upon pure merits, therefore, application made prior in time should have been given first opportunity which criteria was not fulfilled in this case therefore the said issue was decided accordingly.
7. In appeal filed by respondents No,1 and 2 the lower appellate Court reversed the findings of the trial Court on Issue No,
1. It was held that the present suit was filed a day earlier than the date on which previous suit was withdrawn and dismissed for non-prosecution which was also in respect of different cause of actions. Since findings on other issues by the trial Court had been recorded in favour of respondents I and 2/plaintiffs therefore after reversing the findings on Issue No,1 on the basis of which suit was dismissed by the trial Court, the appellate Court without discussing and examining the correctness or otherwise of the findings on other issues, given by the trial Court mechanically proceeded to decree the suit through judgment dated 17-11-1996 after setting aside the judgment and decree of the trial Court on acceptance of appeal which has been assailed in this revision petition.
8. Learned counsel for the petitioner submitted that before the lower appellate Court it was argued on behalf of the petitioner that findings on other issues recorded by the trial Court were not valid and liable to be reversed but the same were not examined on the ground that the petitioner did not file cross objections. On the same reasons, learned counsel for respondents No,1 and 2 during the arguments opposed the arguments of learned counsel for the petitioner.
9. Order 41 Rule 22 C.P.C. provides that a respondent in appeal could file cross objections against judgment and decree of the Trial Court in a case where an appeal could be filed by him in order to seek modification of the decree. It was not a case where the present petitioner/respondent in appeal before the lower appellate Court could either file appeal against judgment and decree of the trial Court the same being a decree of dismissal of the suit as a whole as such he was not bound to file cross objections whereas under the same provisions of law, he could support the judgment and decree of the trial Court for dismissal of the suit on other issues decided against him by showing during the arguments without filing cross-objections that the other issues had not been correctly decided and if findings on those issues were reversed the decree for dismissal of suit passed by the trial Court could be maintained if not for the reasons given by the trial Court on Issue No,1 but on other issues. The lower appellate Court therefore should have examined the findings on the other issues challenged on behalf of the petitioner during the arguments as the same could be challenged without filing cross objections as no formal cross objections in these circumstances merely to challenge the correctness of findings on any issue were required to be filed, for findings on a particular issue where the final judgment was in favour of a party could not be challenged by filing appeal but decree already passed in favour of such a party could be shown to be justifiable on the other issues also which had been decided against him.
10. The trial Court held under Issue No,7 that no Government official or servant could claim as a matter of right allotment of a Government accommodation. This finding is correct and in accordance with the established law. That being so it could not be held that merely because application of one Government servant was earlier in time seeking allotment of a quarter the same must have been allotted to him. As while making allotment of Government accommodation apart from the date of making application by different Government servants the authorities were required to take into consideration other factors the most important being as to which of the employees or Government servant was more in the need of a house or Government accommodation as against the other. During the arguments, learned counsel for respondents No,1 and 2 did not deny that the father of respondent No,1 is also a Government servant who has already been allotted a Government accommodation. His brother Tanvir who is unmarried, is also a Government servant and has got Government quarter allotted. The contention of learned counsel for the petitioner that respondent No,1 who is residing with his brother Tanvir who has no family members, was not at present in immediate need of a government quarter therefore, the present petitioner who was without any house to provide shelter to his family, was rightly allotted this house which could not be held to be unfair or unjust or to suffer from any mala fide has force.
In these circumstances, it was not open to the Trial Court to substitute its own decision as regards merit position of both the applicants for the allotment of a Government accommodation for there is no vested right under the law in any Government servant to claim allotment of Government accommodation and if in these circumstances the functionaries of the State found petitioner more eligible, deserving and needy as compared to respondent No,1, the same could not have been interfered with or held mala fide as such the findings on Issues Nos.6, 7 and 3 are hereby reversed and the said issues are decided in favour of the petitioner.
11. The judgment dated 17-11-1996 passed by the lower appellate Court and the findings of the trial Court on Issues. Nos.6, 7 and 3 suffer from material irregularities amounting to illegality therefore, this revision petition is accepted, judgment dated 17-11-1996 passed by lower appellate Court is set aside and the dismissal of the suit through judgment dated 30-5-1996 passed by the trial Court is maintained on the findings on Issues Nos.3, 6 and 7 as observed above. The parties are left to bear their own costs.