ZAFARULLAH KHAN vs SARWARI BEGUM and 2 others
This intra-court appeal arises from an order passed by a learned Single Bench upholding an interim order of the Additional Sessions Judge under Section 7 of the Illegal Dispossession Act, 2005, which directed restoration of possession of the disputed property to the complainant. The core legal questions involve the validity of granting interim relief of restoration of possession under the Illegal Dispossession Act, 2005, when the party against whom relief is sought took possession in violation of a civil court injunction, and the scope of constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 against interim orders. The court held that a party who enters into possession in violation of a civil court's restraining order approaches the court with unclean hands and is not entitled to constitutional relief, and that interim orders passed under the Illegal Dispossession Act do not warrant interference in constitutional jurisdiction. The key principles laid down are that constitutional jurisdiction cannot be invoked as an appellate jurisdiction to challenge interim orders, and that violators of civil injunctions cannot claim equitable relief.
- Whether an interim order of restoration of possession under Section 7 of the Illegal Dispossession Act, 2005 can be sustained when the aggrieved party entered possession in violation of a civil court injunction?
- Can constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 be invoked as an appellate jurisdiction to challenge interim orders?
- Does a party who violates a restraining order passed by a civil court approach the constitutional court with clean hands?
- Section 7, Illegal Dispossession Act, 2005
- Section 3, Illegal Dispossession Act, 2005
- Section 4, Illegal Dispossession Act, 2005
- Section 7(1), Illegal Dispossession Act, 2005
- Article 199, Constitution of Pakistan 1973
ORDER
SYED SHABBAR RAZA RIZVI, J.---The learned' counsel has filed this I.C.A. Against order of the learned Single Bench dated 19-9-2008, whereby order dated 16-9-2008 delivered by the learned Addl.Sessions Judge, Gujranwala was upheld.
2. Dispute relates to interim order passed by the learned Additional Sessions Judge under Section 7 of Illegal Dispossession Act, 2005. Respondent No,1 had filed a complaint. During the pendency of the complaint which is still pending, it was transpired that a civil suit for declaration, permanent injunction and consequential relief had already been filed by complainant's husband Ashiq All in respect of the same property, subject matter of the complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005. Present appellant had also submitted written statement in the said suit. In the conveyance in proceedings before civil court it was admitted that the disputed property was in possession of respondent No,1 and on the same ground the learned Civil Judge had accepted application for grant of temporary injunction by restraining the present appellant from Interfering and alienating the suit property to anybody else during the pendency of the said suit.
3. In view of the above position, the learned Additional Sessions Judge accepted the application under subsection (1) of Section 7 of the Illegal Dispossession Act, 2005 and observed that since, prima facie, appellant was not in lawful possession of the disputed property, therefore, as an interim relief, the learned Additional Sessions Judge directed the appellant to put respondent No,1 in possession of the same property. SH0 P.S. Dhullay, District Gujranwala was also issued direction to get the possession of the disputed property restored to respondent No,1 and submit report about compliance of the order of the learned Additional Sessions Judge.
4. Against the above order dated 16-9-2008, Writ Petition No,12120 of 2008 was filed by the present appellant which was dismissed in limine. Para-3 of the learned Single Bench is relevant which, for convenience is reproduced as under:-- "It is not disputed by the learned counsel for the petitioner that the petitioner's party had come into possession of the property in issue during the subsistence of a restraining order passed by a civil court which restraining order had provided protection to the possession of respondent No,1 vis-a- vis the property in issue. In these circumstances I have not been able to take any legitimate exception to the impugned order passed by the learned Additional Sessions Judge, Gujranwala on 16-9-2008."
' The above order of the learned Single Bench clearly indicates that appellant violated order of the learned civil court whereby appellant was restrained to interfere with possession of respondent No,1, thus, contaminated his hands. The appellant did not file Writ Petition No,12120 of 2008 with clean hands to seek a relief under constitutional jurisdiction. Even otherwise, the order of the learned Additional Sessions Judge dated 16-9-2008 is of an interim nature. The appellant still has to contest the main case under the Illegal Dispossession Act which is still pending before the learned Additional Sessions Judge. The constitutional jurisdiction under Article 199 of the Constitution is not an appellate jurisdiction, There is substantial and noticeable difference between appellate jurisdiction and constitutional jurisdiction which has not been appreciated while filing the writ petition and the present I.C.A.
5 . We have considered the points raised by the learned counsel for the appellant and order of the learned Single Bench we do not find any illegality or impropriety in the above orders. It may be pointed out that appellant has also filed C.P.L.A. No,1533 of 2008 before the honourable Supreme Court on 31-10-2008 after filing the instant appeal. In view of the above, we do not find any merit in this appeal which is accordingly dismissed.
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