GHULAM QADIR vs Mst. AZRA BIBI and 5 others
This constitutional petition before the Lahore High Court challenged interim orders dated 19-07-2006 and 07-09-2006 passed by the trial Court under Section 7 of the Illegal Dispossession Act, 2005. The petitioner contended that the trial Court acted in haste, relied upon fabricated documents, and passed the order without proper service due to a deliberately incorrect address. The respondent countered that an interim order passed in criminal proceedings could not be challenged through constitutional jurisdiction under Article 199. The High Court observed that the record established the respondent's ownership and possession prior to dispossession by the petitioner, and that the trial court provided valid and lawful reasons for its decision. The Court held that discretionary interim orders passed by subordinate courts cannot be interfered with under constitutional jurisdiction unless shown to be whimsical, fanciful, or arbitrary, as such interim orders can be challenged upon appeal against the final judgment. Consequently, the petition was dismissed.
- Can an interim order passed under Section 7 of the Illegal Dispossession Act 2005 be challenged through a constitutional petition?
- Under what circumstances can discretionary orders of lower courts be interfered with in constitutional jurisdiction?
- Section 7, Illegal Dispossession Act 2005
ORDER
' TARIQ SHAMIM, J.--- Through this petition, the petitioner has challenged the interim order, dated 19-7-2006 passed by the learned trial Court on an application filed by respondent No,1 under section 7 of the Illegal Dispossession Act, 2005, and the order, dated 7-9-2006 declining to recall its earlier order on the application filed by the petitioner inter alia on the grounds that the address of the petitioner was deliberately wrongly stated in the complaint so that he would not be served with notice; that the learned trial Court acted in haste while deciding the application under section 7 of the Act; that the documents referred to and relied upon by respondent No,1 were fake and fabricated and that the learned trial Court on the application filed by the petitioner ought to have recalled the earlier order, dated 19-7-2006.
2. On the other hand, learned counsel representing respondent No,1 contended that the order challenged through the instant petition was passed under section 7 of the Illegal Dispossession Act, 2005 which was an interim order and could not be challenged in constitutional jurisdiction of this Court; that the only remedy available to the petitioner was to file an application under section 265- K, Cr.P.C. As the petitioner could not challenge criminal proceedings through a Constitutional petition and that the writ petition had been tiled absolutely on false and baseless allegations, hence the same deserved to be dismissed.
' 2-A. I have heard the learned counsel for the parties, perused the record and the documents placed on the record by both sides.
3. A perusal of the documents placed on the record by respondent No,1 with the reply reveal beyond any doubt that the said respondent was owner in possession of the property in question who had been dispossessed by the petitioner. Even otherwise, the order reveals that valid and lawful reasons have been assigned by the learned lower Court while exercising jurisdiction in the matter. The discretionary order passed by the Courts below cannot be challenged in the exercise of the constitutional jurisdiction of this Court until it can be shown that the same are whimsical, fanciful or arbitrary. Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the orders of the learned Additional Sessions Judge. The impugned orders cannot be challenged in the constitutional jurisdiction as the said orders can be validly challenged at the time of filing of appeal against the final judgment. Reliance is placed on the case of Ghulam Hussain and another v. Malik Shhbaz Khan 1985 SCM R 1925.
4. For what has been discussed above, I see no force in this writ petition which is dismissed.
Cited by 2 cases
- KHAMISO Versus State 2017 PCrLJN 4
- Sardar SHAH NAWAZ KHAN vs MALKI AMAN and others 2009 P Cr. L J 578