On 18-5-1989, respondents claiming to be representatives of the village community in general, filed a suit for possession and perpetual injunction against the petitioners and respondent No. 15 (Union Council Bhagowal), invoking provisions of rule 8 of Order I of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.), respondents Nos. 1 to 14 pleaded that suit land was located in Khasra No. 1754 which, being the ownership of village community in general, was reserved for utilization by village community as a whole and petitioners (defendants Nos. 1 and 2 in the suit) had, upon illegal possession of the suit land, made constructions thereupon. And that petitioners being trespassers, were liable to be dispossessed therefrom by issuance of a decree for possession and perpetual injunction. In para.1 of the plaintiff was pleaded that since interest of numerous persons was involved, therefore, owing to their large number, the suit in representative capacity was filed in terms of Order I, rule 8, C.P.C. Through the respondents. Contesting written statement was filed by the petitioners. Similarly respondent No.15 filed a separate written statement. In both these written statements preliminary objections as to the maintainability of the suit and locus standi of respondents were raised. On merits petitioners claimed that their predecessor-in--- interest being owners in the village, had been in possession of the suit land for over twenty years without any let or hindrance and that they were in possession of the suit property in their own rights and had constructed a house thereupon. Learned trial Court framed the issues and allowed recording of evidence by parties. The learned Civil Judge, Sialkot, through judgment and decree, dated 26-3-1991, dismissed the suit of respondents on the ground that permission of Advocate--- General to bring this suit in representative capacity had not been obtained and that respondents- plaintiffs had failed to prove any special damage to them. The learned trial Court, however, in the same judgment clearly and categorically held that petitioners had failed to prove their possession over the suit land in their own right or under the right or title of their predecessor-in-interest. It was instead held that the land in question was joint ownership of village community and that "no rebuttal had been produced by petitioners to disprove collective ownership of the joint body of villagers over the suit land" which was reserved for the welfare of village community. And further that the petitioners had taken illegal possession of the suit land and that too in violation of the status quo order issued by the learned Civil Judge in an earlier civil suit whereupon the petitioners were also punished for committing breach . Of the injunctive order. Respondents thereupon challenged the above said dismissal of the suit by the learned Civil Judge through appeal upon grounds that the subject-matter of the suit did not fall within section 91 or section 92 of the C.P.C., wherefor permission of learned Advocate-General was not required, and that the findings of absence of special damage were incorrectly recorded by the learned Civil Judge on Issues Nos.2 and 6-B.
2. It is noteworthy that petitioners did not file any appeal against the findings of the learned Civil Judge against them on Issues Nos. 5, 6 and 6-A, where under the learned trial Judge had held the petitioners not to be the owners of the suit land which, as per the judgment and decree of the learned Civil Judge, was collectively owned by the village community and was reserved for common causes of the village residents and owners.
Petitioners also failed to file any cross-objections to appeal filed by the respondents.
3. In absence of any appeal or cross---objections on behalf of the petitioners, the learned Additional District Judge, Sialkot, only dealt with the grounds of respondents' appeal challenging the findings of the learned trial Judge on Issue No.6-A and Issue No.2. The learned Additional District Judge,. Through judgment and decree, dated 28-6-1994, held that no permission of the Advocate-General was required to maintain the suit as the petitioners have suffered special damage and respondents had the locus standi as well as the cause of action to file the suit. The learned Additional District Judge thereupon accepted the appeal and set aside the judgment and decree of the learned trial Court and also proceeded to decree the suit of the respondents directing petitioners to remove the encroachment/construction from the suit land .And to hand over possession to the inhabitants of the village. The above said judgment and decree of the learned Additional District Judge has been assailed by the petitioners in the present civil revision.
4. Learned counsel for the petitioners, placing reliance upon the cases of Adam Khan Gulla Mir and others (PLD 1982 SC 120); The Tattersalls Club v. S.M. Suleman (PLD 1956 Sindh 49) and Punjab Cooperative Bank 4 td.; Lahore v. Hari Singh and others (AIR 933 Lahore 749), contended that since ;:either permission was granted to the respondents by the learned Civil Judge to represent the village ,community nor was mandatory notice issued to inhabitants of village in terms of rule 8 of Order I, C.P.C., therefore, the suit itself became incompetent and the learned Additional District Judge exceeded his jurisdiction to pass the decree in savour of the respondents: Learned counsel for the petitioners also surveyed the evidence to state that the respondents were not owners in the village and, therefore, had no locus standi to file a suit as representatives of the village community.
Contrarily, learned counsel for the respondents supported the impugned judgment and decree and placed reliance upon the case of Saleh Muhammad and 2 others v. Haji Juma Khan Agha and 4 others 1983 SCMR 587 to contend that provisions contained in rule 8 of Order I were only enabling and permissive provisions and were not mandatory in their nature, wherefor neither the express permission nor notice was essentially required to maintain the suit.
5. I have considered the submissions made by the learned counsel for the parties and have also examined the record. I have no doubt in my mind that bare reading of Order I, rule 8, C.P.C. Shows that respondents required permission of the Court to proceed with the suit in a representative capacity and to represent the village community in the present case. Furthermore, a notice was required to be served upon persons whom respondents sought to represent or sue in the said suit.
In the present case learned counsel for respondents has not denied that the respondents neither obtained permission from the learned Civil Judge nor was 'a notice in the suit served upon the village community. The contention of the learned counsel .For the respondents was that the provisions of said rule 8 of Order I, C.P.C. Were not mandatory but were only enabling and permissive provisions. And that since the learned trial Judge decided to continue and proceed with the suit, therefore, requisite permission can be presumed as has been held by this Court in the case of Abdul Latif and others v. Muhammad Khan and others (1986 CLC 19.94).
6. On the question of permission, I may tend to agree with the learned counsel for the respondents that since the learned trial Judge allowed the suit to be proceeded with upon receiving, a written statement, framing of issues and receding of evidence, therefore, such permission can be presumed and express order should in such cases not be insisted I upon in the interest of justice.
However, provisions of Order I, rule 8, C.P.C. When read alongwith the above said precedents relied upon by the learned counsel for the petitioners, makes it. Clear that issuance of notice. Upon the persons sought to be represented by respondents in the said suit was mandatory. It has been held in the case of Tattersalls Club (supra) that in the absence of such a notice, the suit becomes incompetent. Similarly, in the case of Punjab Cooperative Bank (supra), notice published in a low circulation English newspaper only for eight persons was held to be an improper notice under rule 8 of Order I, C.P.C., vitiating, entire proceedings in the suit. In view of the above, I do agree with the learned counsel for the petitioners that there was no escape either for the respondents or for the trial Judge to serve a notice on the village community in the suit filed under Order I, rule 8, C.P.C. By the respondents.
7. Despite holding that absence of notice vitiates the proceedings before the learned lower Courts, I am of the opinion that m peculiar circumstances of the present case petitioners should not be allowed relief on absence of notice, for the following reasons.
(i)Petitioners neither raised such an objection in the written statement before the learned trial Judge not have they pleaded any ground thereupon in the present civil revision. I am conscious of the fact that absence of notice under rule 8 of Order I, C.P.C. Is germane to assumption of jurisdiction by the learned trial Courtand is, therefore, a question of law and can be allowed to be raised, dealt with and decided even at the revisional stage. However, I am of the opinion that petitioners are not entitled to any equitable and legal assistance of the Court in the present revision petition for the observations recorded hereunder.
(ii)It has not been denied by the petitioners at any stage of the proceedings before the learned Courts below or even before this 'Court that they were proceeded against in an earlier civil suit for disobedience of injunctive order issued by the learned Civil Court and they had taken possession and made constructions on the suit land during currency of the order of status quo issued by the learned Civil Judge. Furthermore, there is no evidence on record that petitioners forefathers were in possession of the suit land in their own right as owners and that petitioners succeeded to such a right to become proprietors of the suit land. Petitioners have failed to produce any evidence on record to rebut overwhelming J documentary or oral evidence produced by the respondents as plaintiffs that the suit land was jointly owned by village owners and was reserved for welfare of the village community. And that the petitioners were encroachers and trespassers thereupon.
Observations of the learned Civil Judge, Sialkot in the judgment dated 26-3-1991 being pertinent and decisive in the matter of extending equitable relief to the petitioners under revisional jurisdiction, are reproduced hereunder:-- "P.W.1 Muhammad Aslam, Patwari, Halqa Bagowal has deposed that Khasra No. 1754 is jointly owned by the owners of the village and it is specified for common benefits of the villagers, in cultivation column of the Revenue Record. That the new Number Khasra given after Bendo Bast in 1782 which has been fallen within residential area of the village. Exh.P.Q. Shows that plaintiffs are owners of the village. Exh. P.1 is certified copy of Register Haqdaran Zamin 1968-69. It shows that Khara No. 1754 is joint ownership of the owners of the village and is Tiba. It shows that Khasra No. 1754 is reserved for public interest. Exh. P.4 is certified copy of orders of learned Civil Judge, dated 13-4-1987 in contempt application which shows that Rashid. And Muhammad Ishaq got possession in violation of status quo orders and they were 'punished'. Exh. P.6 is certified copy of the contempt application. Exh.P.7 is written reply. Exh. P.10 is certified copy of the plaint and Exh.P.11 and Exh. P.9 are the statements of learned counsel. For plaintiff and orders of Court, dated 18-12-1982 in respect of dismissal of the suit. A perusal of these documents and written statement of defendants Nos. l and 2 would make it clear that defendants Nos. 1 and 2 got possession during status quo orders of Court and they were punished. It would also make it clear that the constructions of defendants Nos.
1 and 2 on suit property were made in 1982 in violation of status quo orders and not from their ancestors. Moreover, disputed property was Shan-flat Deh reserved for public interest and no body could claim averse possession upon it. In these circumstances, I am of the considered view that defendants Nos. l and 2 are not owners on basis of adverse possession and Issue No.5 ` is decided against defendants Nos. l and 2. It is clear from Revenue Record and statement of Patwari Halqa P.W.1 that suit land Khasra No. 1754 is joint ownership of the owners of the village and no rebuttal has been produced on tile to prove that residents of village Bagowal are not owners of the suit property. In these circumstances Issue No.6 is decided in favour of the plaintiffs. Revenue Record clearly shows that Khasra No. 1754 is specified for interest of the residents of the village and defendant No.3 has general control over . It, therefore, Issue No.6-A is also decided in favour of plaintiffs."
Petitioners failed to tile any appeal against the above observations or any cross-objections in appeal of the respondents to challenge the above findings of the learned Civil Judge against them.
These findings, therefore, became final. The petitioners, therefore, cannot be allowed to raise any case there against in the present civil revision. Since the K petitioners have been held by the learned Courts below to be trespassers over the suit land and the same to be collectively owned by the village community, therefore, it will not serve any purpose in remanding case back to the learned Civil Judge for issuance of requisite notice under rule 8, Order 1, C.P.C. And to recommence the proceedings of the civil suit thereupon.
(i.e)Furthermore, the petitioners have been held to have taken possession of the suit land without any right by committing breach of the order of status quo and were also punished for breach and disobedience of the L injunctive order, I, therefore, am of the opinion that they are not entitled to discretionary and equitable relief in their favour of this Court under section 115 of the Code of Civil Procedure, 1908.
(iv)Revisional powers of this Court have more often than not been utilized to effect complete justice and to preserve, protect and ensure equitable dispensation. Such powers have also been exercised to prevent abuse of process of law and Courts and to remove oppression and mal- administ--ration irrespective of fatalities of procedural demands. In the present case, in absence of a right in the petitioners to possession of the land, justice has been done by restoring the right of the village community in general. Notice provisions are, no doubt, mandatory under Order I, rule 8, C.P.C. But demands of justice are equally, if not more sacrosanct. Grant of relief to the petitioners in this revision petition will obviously amount to approval to and perpetuation of their illegal occupation of the suit land. Such illegality cannot be sanctioned through relief to petitioners under section 115 of the Civil Procedure Code; and (v)Petitioners accepted. Above-quoted observations of the learned Civil Judge qua breach of injunctive order to take possession of the suit land, as final. They opted not to file an appeal or cross-objections there against. I, therefore, believe that assistance of Court System cannot be extended to persons committing breach and violation of injunctions of another learned Court, which is an arm of the same legal system.
S.A.K./R-208/L