ARAB Versus PAKISTAN, THROUGH SECRETARY, MINISTRY OF DEFENCE, ISLAMABAD

In this revision petition the petitioners have challenged the judgment and decree, dated 13‑3‑1991 passed by the learned Additional District Judge, Bhakkar, whereby the appeal filed by the respondents against the judgment and decree, dated 26‑11‑1980 passed by the learned trial Court decreeing the suit of the petitioners was accepted.

2. The petitioners filed a suit for permanent injunction that they were owners of the land in dispute as `Aalah Malkan'. The respondents claimed ownership of the land in pursuance of order of allotment made in their favour by the Settlement Authorities under the settlement laws treating the land as evacuee property. In the suit the petitioners did not challenge the legality of the' orders regarding allotment of land in favour of the respondents.

3. The learned trial Court framed the following issues:‑‑‑

(1) Whether plaintiffs are owners in possession of the suit land? OPP

(2) Whether the Court has no jurisdiction to hear this suit? OPD

(3) Whether defendants are entitled to special costs? OPD

(4) Whether plaintiffs are estopped by conduct to bring this suit? OPD

(5) Whether suit is not maintainable in its present form? OPD

(6) Whether suit is under‑valued? OPD

(7) Relief.

The learned trial Court held under issue No.1that the petitioners were the owners of the land. Under issue No.2 it was held that the Civil Court was vested with the jurisdiction to decide the suit. Under issue No.3 it was held that since the petitioners had been held to be the owners of the land with possession, therefore, the defendants were not entitled to special costs. Under issue No.4 it was held that the plaintiffs were not estopped by conduct to bring the suit. Under issue No.5 it was held that, the suit in the present form was, maintainable. Under issue No.6 it was held that the suit has been properly valued for the purposes of court‑fee and jurisdiction. As a result of these findings the suit of the petitioners was decreed through judgment, dated 26‑11‑1980. The respondents feeling aggrieved filed appeal before the learned Additional District Judge, which was accepted through judgment, dated 13‑3‑1991. The learned Additional District Judge reversed the finding on issue No.1by holding that else respondents were allotted this land, as such, the plaintiffs could not be held to be the owners thereof. The application of the petitioners requesting for grant of permission to them to amend the plaint so as to challenge the legality of orders passed by the Settlement Authorities for allotment of land in favour of the respondents was declined on the ground that the same would change the nature and complexion of the suit. Under issue No.2 it was held that the Civil Court had the jurisdiction to try the suit. Under issue No.5 it was held that in view of findings under issue No.1recorded by the learned lower appellate Court the suit was not maintainable in the present form. The view taken was that the suit should have been filed for declaration of title. Under issues Nos.4 and 6 the findings of the learned trial Court have been upheld. Under issue No3 the respondents were found to be entitled to special costs of Rs.5,000. In the result the appeal was accepted and the suit filed by the petitioners was dismissed with the direction that the respondents shall be paid Rs.5,000 as costs.

4. Learned counsel for the petitioners argued that the application seeking amendment of the plaint to challenge the legality of orders passed by the Settlement Authorities for allotment of the land in favour of the respondents has been rejected illegally which amounts to failure to exercise jurisdiction vested in the Court to allow such amendments. He also argued that if the suit was found to be not maintainable in the present form, the Courts below should have refrained from recording the findings on merits of the cases of both the parties and should have left the same to be decided in the suit if filed by the petitioners in proper form. He also argued that there was no evidence produced by the respondents regarding special costs of Rs.5,000, therefore, the same could not have been granted to them.

5. The submissions except regarding refusal to grant permission to amend the plaint by the petitioners have considerable force. The petitioners in. case wanted to challenge the legality of orders of Settlement Authorities for allotment of land in the name of the respondents were also required to implead the officers who passed the said orders and the Central or Provincial Government as the case may be as defendants in the suit. In this view of the matter, it was not permissible in these proceedings to allow the petitioners to amend the plaint. The petitioners may if so advised seek remedy if available under the law against the orders passed by the Settlement Authorities for allotment of land to the respondents.

6. Since the learned lower appellate Court held that the suit in the present form was not maintainable which finding I also endorse, as such, the recording of findings under issue No.1on merits of the case should have been avoided so that if the suit was brought by the plaintiffs in proper form the merits of the case of each party be adjudicated upon on merits. In this view of the matter, the findings recorded by both the Courts below on issue No.1are set aside.

7. I am also in agreement with the learned counsel for the petitioners that there was no evidence to justify grant of special costs of Rs.5,000 to the respondents. The learned lower Appellate Court awarded the said costs merely on the ground that the respondents had been subjected to unnecessary expenses and agony for a long period of 14 years during which the appeal and proceedings remained pending. Special costs under section 35‑A of the Civil Procedure Code are granted only on the strict proof through evidence and not by way of mere favour or on the basis of length of period within which the proceedings remained pending. The findings on issue No.3, therefore, are also not sustainable and set aside.

8. The two Courts below have committed material irregularity and illegality in recording findings on merits of the case of both the parties under issue No.1and the learned lower appellate Court while granting special costs to the respondents of Rs.5,000 also committed material irregularity and illegality in exercise of jurisdiction vested in it under the law.

This revision petition is partly accepted to the extent that the findings recorded by the two Courts below on issue No.1and those of the learned lower appellate Court on issue No.3 are hereby set aside. The suit of the petitioners stands dismissed on the ground that the same was not maintainable in the present form. They may if so advised file fresh suit in proper form. If the petitioners file such a suit, the respondents may raise all pleas available to them in defence regarding maintainability or otherwise of the suit as also on merits which shall be decided after framing issues in accordance with law. The parties are left to bear their own costs.

H.B.T./M‑220/L Order accordingly.